U.S. v. Miranda-Lopez

• Decision Date: 17 July 2008
• Docket Number: No. 07-50123.,07-50123.
• Citation: 532 F.3d 1034
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Roberto MIRANDA-LOPEZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

532 F.3d 1034

UNITED STATES of America, Plaintiff-Appellee, v. Roberto MIRANDA-LOPEZ, Defendant-Appellant.

No. 07-50123.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 14, 2008.

Filed July 17, 2008.

Keith H. Rutman, San Diego, CA, for the defendant-appellant.

Kyle W. Hoffman and Annalou Tirol, United States Department of Justice, United States Attorneys Office, San Diego, CA, for the plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California; M. James Lorenz, District Judge, Presiding. D.C. No. CR-06-00706-L.

Before: BARRY G. SILVERMAN, MARSHA S. BERZON, and JAY S. BYBEE, Circuit Judges.

Opinion by Judge SILVERMAN; Partial Concurrence and Partial Dissent by Judge BYBEE.

SILVERMAN, Circuit Judge.

Today we join the D.C. Circuit in holding that the crime of aggravated identity theft, 18 U.S.C. § 1028A(a)(1), requires proof that, among other things, the defendant knew that the means of identification belonged to another person. It is not enough to prove only that the defendant knew he was using a false document. See United States v. Villanueva-Sotelo, 515 F.3d 1234 (D.C.Cir.2008).

I. FACTS

Roberto Miranda-Lopez, a citizen of El Salvador who had previously been deported from the United States, was indicted for trying to enter the United States using a resident alien card in the name of "Jorge A. Garcia Fregoso." He was charged with two counts — illegal reentry under 8 U.S.C. § 1326(a) and (b) and aggravated identity theft in violation of 18 U.S.C. § 1028A(a)(1).¹

At Miranda-Lopez's jury trial, Customs and Border Protection Officer Terence Gibbs testified that he first came into contact with Miranda-Lopez at about 6:45 a.m. on March 8, 2006 at the San Ysidro, California port of entry. When he arrived at Officer Gibbs's border inspection booth, Miranda-Lopez was sitting in the front-passenger seat of a car driven by a man later identified as Salvador Rodriguez. According to Officer Gibbs, Miranda-Lopez, Rodriguez and a third passenger were all awake and alert when the car approached his border inspection booth. Rodriguez handed Officer Gibbs three identification cards, and Officer Gibbs immediately noticed that the pictures on the cards did not match the three individuals in the car. Officer Gibbs testified that he asked Miranda-Lopez if he was Jorge A. Garcia-Fregoso as indicated by one of the permanent resident cards and that Miranda-Lopez responded "yes." Officer Gibbs then asked for Miranda-Lopez's hand and determined that his fingerprint did not match the fingerprint on the card. Suspecting that all three of the car's occupants were imposters, Officer Gibbs escorted the group to secondary inspection where a second Customs and Border Protection Officer determined that the three men did not match the identification documents they asserted to be theirs.

Before trial, the government and Miranda-Lopez entered into the following written stipulation:

1. On March 8, 2006, Defendant was not a citizen of the United States; Defendant was a citizen of El Salvador.

2. Defendant was ordered deported from the United States on September 20, 2005, and was physically removed from the United States to El Salvador on November 23, 2005.

3. On March 8, 2006, Defendant had not received consent to reenter or apply for reentry into the United States from the Secretary of the Department of Homeland Security or his designated successor.

4. The I-551, or Resident Alien Card, bearing the name "Jorge A. Garcia Fregoso" was a validly-issued Resident Alien Card on March 8, 2006.

5. Any transfer, possession or use of this card by someone other than Jorge A. Garcia Fregoso would be without lawful authority.

6. The parties do not dispute the identity of Jorge A. Garcia Fregoso.

7. This stipulation is being entered into freely and voluntarily by all parties.

At the close of the government's evidence, Miranda-Lopez made a motion for judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29 arguing, without elaboration, that the government failed to meet its burden of proof. The district court summarily denied the motion.

Testifying on his own behalf, Miranda-Lopez said that on the day before he encountered Officer Gibbs, during a visit with his girlfriend in Tijuana, he began drinking tequila early in the day. Later that evening, he met Salvador Rodriguez while drinking margaritas in a bar. At around 2:00 a.m. the next morning, Miranda-Lopez decided he ought to leave the bar before he fell asleep and accepted Rodriguez's offer to give him a ride home. Miranda-Lopez testified that he got into Rodriguez's car, but when Rodriguez went back to the bar to get something, Miranda-Lopez fell asleep in the car. He said he did not wake up until Officer Gibbs grabbed his hand to examine his fingerprint. Miranda-Lopez testified that he had no intent to enter the United States, that he had never seen the Garcia-Fregoso permanent resident card before, and that no officer ever asked if one of the identification cards belonged to him. Further, Miranda-Lopez stated that he failed to tell the border officers that the identification card did not belong to him because he was "tongue-tied," "shocked," and "petrified."

The district judge gave the following jury instruction with respect to aggravated identity theft:

The defendant is charged in Count Three of the indictment with aggravated identity theft in violation of Section 1028A of Title 18 of the United States Code. In order for the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:

First, during and in relation to a violation of Section 1326 of Title 8 of the United States Code, attempted reentry of deported alien;

Second, the defendant knowingly transferred, possessed, or used a means of identification of another person; and

Third, the defendant acted without lawful authority.

Miranda-Lopez did not object to this instruction and, indeed, offered these same elements in his trial memorandum.

At the close of all evidence and after the jury began deliberating, Miranda-Lopez renewed his Rule 29 motion, arguing that the government failed to prove that he had possession of the false identification, that he knew about it, or that he intended to use it. The jury then found Miranda-Lopez guilty of both the unlawful reentry and aggravated identity theft charges. After the jury returned its verdict, the district judge denied Miranda-Lopez's Rule 29 motion. In doing so, the judge, without any prompting, stated his own belief that the real issue was whether or not Miranda-Lopez knew that the identification card belonged to an actual person. However, the district judge deemed the issue waived because of the defense's failure to raise it.

A week after the jury was discharged, Miranda-Lopez filed a timely written Rule 29 motion arguing, for the first time, that the government failed to prove that Miranda-Lopez actually knew that the identification belonged to another person. The district court denied this motion and stated both that the issue was waived, and that on the merits, proof that Miranda-Lopez actually knew the identification belonged to another person was not required to sustain a conviction under § 1028A(a)(1). In so holding, the district judge expressed doubt about whether the government had proved that Miranda-Lopez knew the identification belonged to someone else, but did not entertain argument on the subject, deeming such proof immaterial.

The district court sentenced Miranda-Lopez to 39 months for unlawful reentry and an additional mandatory consecutive sentence of 24 months for aggravated identity theft as required by 18 U.S.C. § 1028A(b)(2).

Now, on appeal, Miranda-Lopez challenges only his § 1028A(a)(1) conviction and argues that the district court erred in its jury instructions and denial of his final Rule 29 motion. We have jurisdiction under 28 U.S.C. § 1291.

II. DISCUSSION

A. 18 U.S.C. § 1028A(a)(1)

18 U.S.C. § 1028A(a)(1) states:

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.

(emphasis added).² The statute further requires that the two-year sentence be served consecutively. 18 U.S.C. § 1028A(b).

The issue here is whether the defendant must know that the identification he uses belongs to another person. In other words, does the adverb "knowingly" in the statute modify "of another person" or merely "transfers, possesses, or uses"? We review de novo this question of statutory interpretation. See United States v. Gianelli, 519 F.3d 962, 965 (9th Cir.2008).

In Liparota v. United States, 471 U.S. 419, 105 S.Ct. 2084, 85 L.Ed.2d 434 (1985), the Supreme Court analyzed statutory language punishing "`whoever knowingly uses, transfers, acquires, alters, or possesses coupons or authorization cards in any manner not authorized by [the statute] or the regulations ....'" Id. at 420, 105 S.Ct. 2084 (emphases added, alteration in original (quoting 78 Stat. 708, as amended, 7 U.S.C. § 2024(b)(1)). The government argued that the statute only requires proof that the acquisition, alteration, or possession of the cards was in fact done in a manner not authorized by law. Id. at 423, 105 S.Ct. 2084. The defendant contended that the statute requires proof that the defendant knew that the acquisition, alteration, or possession was not authorized by law. Id. When faced with these two plausible interpretations of this statute, the Court held that "[e]ither interpretation would accord with ordinary usage," quoting a treatise's discussion of an analogous situation: "`[a]s a matter of grammar the statute is ambiguous; it is not at all clear how far down the sentence the word ...