U.S. v. Mendoza-Gonzalez, 07-2660.

• Decision Date: 28 March 2008
• Docket Number: No. 07-2660.,07-2660.
• Citation: 520 F.3d 912
• Parties: UNITED STATES of America, Appellee, v. Nicasio MENDOZA-GONZALEZ, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

520 F.3d 912

UNITED STATES of America, Appellee, v. Nicasio MENDOZA-GONZALEZ, Appellant.

No. 07-2660.

United States Court of Appeals, Eighth Circuit.

Submitted: January 17, 2008.

Filed: March 28, 2008.

Timothy S. Ross-Boon, Asst. Fed. Public Defender, argued, John P. Messina, on the brief, Des Moines, IA, for Appellant.

Clifford R. Cronk, Asst. U.S.Atty., argued, John E. Beamer, Assistant U.S. Attorney, on the brief, Des Moines, IA, for Appellee.

Before BYE, BEAM and GRUENDER, Circuit Judges.

GRUENDER, Circuit Judge.

Before the district court,¹ a jury convicted Nicasio Mendoza-Gonzalez of aggravated identity theft in violation of 18 U.S.C. § 1028A(a)(1), based on his use of false identity documents in connection with his employment. Mendoza-Gonzalez now appeals his conviction, arguing that § 1028A(a)(1) requires the Government to prove that he knew the identification he used belonged to another actual person and that the Government failed to do so. He also argues that the Government failed to meet its burden of proving that the identification he used belonged to an actual person. For the reasons discussed below, we affirm Mendoza-Gonzalez's conviction.

I. BACKGROUND

On July 11, 2006, Mendoza-Gonzalez completed a Form I-9 in connection with his employment at a Swift & Company ("Swift") pork processing plant in Marshalltown, Iowa, in which he represented that he was a "citizen or national of the United States," and submitted a photo identification card in the name of Dinicio Gurrola III to verify his identity. After receiving this information from Mendoza-Gonzalez, Swift verified that the social security number on the identification matched the social security number assigned to Gurrola by the Commissioner of Social Security. On December 12, 2006, officials from Immigration and Customs Enforcement ("ICE") conducted a raid at the Swift plant. An ICE officer interviewed Mendoza-Gonzalez and identified him as a person who used the identity of another individual to gain employment at Swift.

In a five-count indictment, Mendoza-Gonzalez was charged with making a false claim of citizenship in violation of 18 U.S.C. § 1015(e), using false identification documents in violation of 18 U.S.C. § 1546(b)(1), using fraudulently obtained immigration documents in violation of 18 U.S.C. § 1546(a), making a false representation of a social security number in violation of 42 U.S.C. § 408(a)(7)(B), and aggravated identity theft in violation of 18 U.S.C. § 1028A(a)(1). At the trial, the Government presented the testimony of two Swift human resource employees who testified that Mendoza-Gonzalez used the identification of Gurrola to gain employment at Swift, the ICE agent who initially interviewed Mendoza-Gonzalez after the raid at the plant, and Sarai Fenton, an investigator with the Inspector General for Social Security who presented evidence of the issuance of an initial social security card to Gurrola as well as requests for duplicate cards, which the Government argues establishes that Gurrola was an actual person.

The jury convicted Mendoza-Gonzalez of all charges. On the first four counts he was sentenced to six months' concurrent imprisonment. The aggravated identity theft conviction under § 1028A(a)(1) requires a consecutive sentence of twenty-four months' imprisonment, resulting in a total sentence of thirty months' imprisonment for Mendoza-Gonzalez. He now appeals his conviction for aggravated identity theft under § 1028A(a)(1), arguing that the Government failed to meet its burden of proof because it failed to prove beyond a reasonable doubt that Mendoza-Gonzalez had actual knowledge that the identification he used belong to an actual person, that Gurrola was an actual person and that Gurrola was still a living person at the time Mendoza-Gonzalez fraudulently used his identification.

II. DISCUSSION

We review the district court's statutory interpretation de novo. See United States v. Kirchoff, 387 F.3d 748, 750 (8th Cir.2004). In interpreting a statute we first "determine whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case." See Robinson v. Shell Oil Co., 519 U.S. 337, 340, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997). If so, we apply the plain language of the statute. See Barnhart v. Sigmon Coal Co., 534 U.S. 438, 450, 122 S.Ct. 941, 151 L.Ed.2d 908 (2002). Only if the language is ambiguous may we look beyond the text. See Staples v. United States, 511 U.S. 600, 605, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994). However, "[a] mere disagreement among litigants over the meaning of a statute does not prove ambiguity; it usually means that one of the litigants is simply wrong." Bank of Am. Nat'l Trust & Sav. Ass'n v. 203 N. LaSalle St. P'ship, 526 U.S. 434, 461, 119 S.Ct. 1411, 143 L.Ed.2d 607 (1999).

The aggravated identity theft statute, 18 U.S.C. § 1028A(a)(1), provides that

[w]hoever, during and in relation to any felony violation enumerated in [§ 1028A(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.

Mendoza-Gonzalez argues that the term "knowingly" modifies not only "transfers, possesses, or uses," but also the phrase "of another person." This interpretation would require the Government to prove that a defendant knew the means of identification belonged to an actual person. United States v. Villanueva-Sotelo, 515 F.3d 1234 (D.C.Cir.2008). The Government, alternatively, argues that "knowingly" only modifies "transfers, possesses, or uses" which would not require the Government to prove that the defendant knew the means of identification belonged to a real person. The Government contends that § 1028A(a)(1) requires only that the means of identification in fact belonged to a real person, not that the defendant knew that it did. See United States v. Hurtado, 508 F.3d 603 (11th Cir.2007) (per curiam), petition for cert. filed, ___ U.S.L.W. ___ (U.S. Feb. 13, 2008) (No. 07-9429); United States v. Montejo, 442 F.3d 213 (4th Cir.), cert. denied, ___ U.S. ___, 127 S.Ct. 366, 166 L.Ed.2d 138 (2006).

We begin our analysis by determining whether the language of § 1028A(a)(1) has a plain and unambiguous meaning with regard to the dispute in this case. See Hurtado, 508 F.3d at 609; Montejo, 442 F.3d at 215. "Knowingly" is an adverb, and "[g]ood usage requires that the limiting modifier, the adverb `knowingly,' be as close as possible to the words which it modifies." Montejo, 442 F.3d at 215. "The fact that the word `knowingly' — an adverb — is placed before the verbs `transfers, possesses, or uses' indicates that 'knowingly' modifies those verbs, not the later language in the statute." Hurtado, 508 F.3d at 609 (citing United States v. Jones, 471 F.3d 535, 539 (4th Cir.2006) ("[a]dverbs generally modify verbs")). The last antecedent rule holds that qualifying words and phrases usually apply only to the words or phrases immediately preceding or following them, not to others that are more remote. See 2A Norman J. Singer & J.D. Shambie Singer, Sutherland Statutory Construction § 47:33 (7th ed.2007). "While [the last antecedent rule] is not an absolute and can assuredly be overcome by other indicia of meaning ... construing a statute in accord with the rule is quite sensible as a matter of grammar." Barnhart v. Thomas, 540 U.S. 20, 26, 124 S.Ct. 376, 157 L.Ed.2d 333 (2003) (internal quotation omitted). Therefore, we find that the plain language of § 1028A(a)(1) limits "knowingly" to modifying "transfers, possesses, or uses" and not "of another person." Thus, we conclude that § 1028A(a)(1) is unambiguous and that the Government was not required to prove that Mendoza-Gonzalez knew that Gurrola was a real person to prove he violated § 1028A(a)(1). In reaching this conclusion, we agree with the Fourth and Eleventh Circuits' determinations that § 1028A(a)(1) is unambiguous. See Hurtado, 508 F.3d at 609; Montejo, 442 F.3d at 215.

The fact that Congress placed the adverb "knowingly" directly before the verbs "transfers, possesses, or uses" indicates that Congress intended "knowingly" to modify those verbs, and not the later language. See Hurtado, 508 F.3d at 609. If Congress had wished to extend the knowledge requirement to the entire provision, "it could have drafted the statute to prohibit the knowing transfer, possession, or use, without lawful authority, of the means of identification `known to belong to another actual person.'" Id. "It is preposterous to think the same Congress that so plainly and firmly intended to increase the penalty ... would then so limit its imposition as to require the Government to prove that the defendant knows he wrongfully possesses the identity `of another person.'" Villanueva-Sotelo, 515 F.3d at 1255 (Henderson, J., dissenting). "Except for the forger himself, proving beyond a reasonable doubt that each of the thousands, if not millions, of holders of false green cards knows that the false means of identification he possesses is that `of another person' would place on the prosecution an often impossible burden." Id. (internal quotation and alterations omitted).

Further, our own precedent supports our conclusion that a defendant need not know that the means of identification he transferred, possessed or used belonged to another actual person. See United States v. Hines, 472 F.3d 1038 (8th Cir.) (per curiam), cert. denied, ___ U.S. ___, 128 S.Ct. 235, 169 L.Ed.2d 170 (2007). In Hines we explained that "[t]o support a conviction for aggravated identity theft, the government must prove that the defendant (1) knowingly used (2) the `means of identification' of another person (3) without lawful authority (4) during and in relation to" a felony violation enumerated in § 1028A(c). Id. at 1039. As we identified the elements of the offense, it is clear that "knowingly"...