U.S. v. Godin

Citation534 F.3d 51
Decision Date18 July 2008
Docket NumberNo. 07-2332.,07-2332.
PartiesUNITED STATES, Appellee, v. Cori A. GODIN, Defendant, Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)

Margaret D. McGaughey, Appellate Chief, with whom Paula D. Silsby, United States Attorney, was on brief for appellee.

Before LYNCH, Chief Judge, TORRUELLA, Circuit Judge, and TASHIMA,* Senior Circuit Judge.

TASHIMA, Senior Circuit Judge.

Defendant-Appellant Cori A. Godin challenges her conviction for aggravated identity theft under 18 U.S.C. § 1028A(a)(1). The statute adds a mandatory two-year term of imprisonment to that otherwise provided for certain enumerated felonies if, "during and in relation to" the felony, the perpetrator "knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person." 18 U.S.C. § 1028A(a)(1). The question before this court is how far the "knowingly" mens rea requirement extends. Must the defendant know that the means of identification belongs to another person? We conclude that the statute is ambiguous and that the legislative history does not clearly reveal congressional intent. Applying the rule of lenity, as we must, we hold that the "knowingly" mens rea requirement extends to "of another person." In other words, to obtain a conviction under § 1028A(a)(1), the government must prove that the defendant knew that the means of identification transferred, possessed, or used during the commission of an enumerated felony belonged to another person. The government did not do so here. Accordingly, we reverse Godin's conviction.1

I. Background

In 2006, Godin defrauded eight banks and credit unions (collectively, the "banks"). She opened accounts using fabricated social security numbers, closed some accounts, and then deposited checks drawn on the closed accounts into the still open accounts. Godin then withdrew funds from the falsely inflated accounts. In this manner, Godin defrauded the banks of approximately $40,000.

Godin fabricated seven different social security numbers by altering the fourth and fifth digits of her own social security number. Godin's social security number is 004-82-XXXX.2 Of the seven fabricated numbers, only one, number 004-44-XXXX, belonged to another person. Godin opened an account at Bank of America with the fabricated 004-44-XXXX number but provided the bank with her correct name, address, date of birth, driver's license number, and telephone number.

The government charged Godin in a seventeen-count indictment: six counts of bank fraud in violation of 18 U.S.C. § 1344, ten counts of social security fraud in violation of 42 U.S.C. § 408(a)(7)(B), and one count of aggravated identity theft in violation of 18 U.S.C. § 1028A(a)(1). In the aggravated identity theft count, Godin was charged with knowingly using social security number 004-44-XXXX during and in relation to one of the bank fraud counts (Count 4) and one of the social security fraud counts (Count 15).

Godin moved to dismiss Count 17, the aggravated identity theft count, arguing that the government had to prove that she knew that the 004-44-XXXX social security number belonged to another person. The District Court denied the motion to dismiss, but declined to reach the mens rea issue. United States v. Godin (Godin I), 476 F.Supp.2d 1 (D.Me.2007). Noting that what Godin knew about the number remained a question of fact,3 the District Court "decline[d] to make an abstract decision on an issue that ultimately may not reflect the actual facts." Id. at 3.

Thereafter, Godin pleaded guilty to the sixteen bank and social security fraud counts. Godin proceeded to trial only on Count 17, the aggravated identity theft count. At trial, Godin stipulated that she committed bank and social security fraud and that she knew that the social security numbers she used in relation to those felonies were not her own.

The government called two witnesses. The first was employed by Bank of America and testified that Godin used number 004-44-XXXX to open an account but that she gave the bank her correct name, address, phone number, driver's license number, and date of birth. The government then called a Special Agent for the Social Security Administration ("Agent"). The Agent testified that by searching a secure and password-protected Social Security Administration database, he determined that social security number 004-44-XXXX was assigned to a man who resided in Maine.4 The Agent also testified that he could not tell by looking at the number that it belonged to another person because there are millions of unassigned numbers. Godin did not dispute any of this evidence but put her true social security number, 004-82-XXXX, into evidence.

After the government's case in chief, Godin moved for a judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29. She argued that the evidence was insufficient to support a verdict because the government presented no evidence to show that she knew the false number belonged to someone else. The District Court denied the motion. The District Court gave two reasons for its decision. First, the scienter issue remained unresolved. Second, the District Court believed that the jury could find that Godin knew the number belonged to someone else.

Both parties debated the scienter requirement at a jury charge conference. While acknowledging that it was "a close issue," the District Court instructed the jury as follows:

To convict Cori Godin of this offense, the government must prove each of the following elements beyond a reasonable doubt:

First, Cori Godin committed bank fraud and/or social security fraud felony violations. The parties stipulate that she did so.

Second, during and in relation to one or both of those other felony violations, Cori Godin knowingly used a means of identification without lawful authority.

Third, that means of identification belonged to another person.

. . .

"Knowingly" means that the act was done voluntarily and intentionally and not because of mistake or accident. The government must prove that Cori Godin knew that she did not have lawful authority to use the means of identification in question. The government is not required to prove that she knew the means of identification actually belonged to another person.

United States v. Godin (Godin II), 489 F.Supp.2d 118, 119-20 (D.Me.2007).

In explaining its decision, the District Court first noted that the language of § 1028A(a)(1) was "not strongly persuasive in either direction," but permitted the District Court's reading. Id. at 120. Second, the weight of case law at that time favored a narrow scienter requirement. Id. Third, "knowingly" had to extend to "means of identification" because the statute requires that the defendant know that the means of identification is fraudulent. Id. Finally, the purpose of the statute, punishing "identity theft," supported stopping the scienter requirement at "means of identification" and not extending it to "of another person" because the person whose number Godin used "was a victim of identity theft, whether Godin knew that she was stealing his identity or not." Id. at 121.

The jury returned a guilty verdict. Godin timely appeals, contending that the court charged the jury in error and that the evidence was insufficient to convict her of aggravated identity theft under § 1028A(a)(1).

II. Scienter Requirement

The circuits are divided on the issue of whether the "knowingly" scienter requirement in § 1028A(a)(1) extends to "of another person." The Fourth, Eighth, and Eleventh Circuits have concluded that it does not. United States v. Mendoza-Gonzalez, 520 F.3d 912, 915 (8th Cir.2008); United States v. Hurtado, 508 F.3d 603, 607 (11th Cir.2007) cert. denied, ___ U.S. ___, 128 S.Ct. 2903, ___ L.Ed.2d ___ (2008); United States v. Montejo, 442 F.3d 213, 214 (4th Cir.), cert. denied, ___ U.S. ___, 127 S.Ct. 366, 166 L.Ed.2d 138 (2006). The D.C. Circuit recently concluded, however, that it does. United States v. Villanueva-Sotelo, 515 F.3d 1234, 1236 (D.C.Cir.2008). We review de novo "alleged jury instruction errors involving the interpretation of the elements of a statutory offense." United States v. Soto-Beniquez, 356 F.3d 1, 44-45 (1st Cir.2003).

Our interpretive task begins with the statute's text. United States v. Jimenez, 507 F.3d 13, 19 (1st Cir.2007). We look to the plain meaning of the words in "`the broader context of the statute as a whole.'" United States v. Roberson, 459 F.3d 39, 51 (1st Cir.2006) (quoting Mullane v. Chambers, 333 F.3d 322, 330 (1st Cir.2003)). If the meaning of the text is unambiguous our task ends there as well. Id. If the statute is ambiguous, we look beyond the text to the legislative history in order to determine congressional intent. Gen. Motors Corp. v. Darling's, 444 F.3d 98, 108 (1st Cir.2006) (internal citations omitted). "A statute is ambiguous only if it admits of more than one reasonable interpretation." Id. (citing Thinking Machs. Corp. v. Mellon Fin. Servs. Corp. # 1 (In re Thinking Machs. Corp.), 67 F.3d 1021, 1025 (1st Cir.1995)).

Section 1028A(a)(1) provides, in relevant part,

Whoever, during and in relation to any felony violation enumerated in subsection (c), knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person shall, in addition to the punishment provided for such felony, be sentenced to a term of imprisonment of 2 years.

18 U.S.C. § 1028A(a)(1).5 "Knowingly," as an adverb, modifies the verbs "transfers, possesses, or uses." The prepositional phrase "without lawful authority" is an adverb phrase that also modifies the verbs. "Means" is the direct object of the verbs, and the prepositional phrase "of identification" is an adjective phrase that modifies the direct object. Finally, the prepositional phrase "of...

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