U.S. v. Montejo

• Decision Date: 18 January 2005
• Docket Number: No. CRIM.2:04 CR 149.,CRIM.2:04 CR 149.
• Citation: 353 F.Supp.2d 643
• Court: U.S. District Court — Eastern District of Virginia
• Parties: UNITED STATES of America v. Nicolas Manueles MONTEJO, Defendant.

Page 643

353 F.Supp.2d 643

UNITED STATES of America v. Nicolas Manueles MONTEJO, Defendant.

No. CRIM.2:04 CR 149.

United States District Court, E.D. Virginia, Norfolk Division.

January 18, 2005.

Joseph E. DePadilla, United States Attorney's Office, Michael C. Moore, United States Attorney's Office, Norfolk, VA, for Plaintiffs.

Samuel Warrenton Meekins, Jr., Wolcott Rivers Wheary Basnight & Kelly PC, Virginia Beach, VA, Riley Henderson Ross, III, Office of the Federal Public Defender, Norfolk, VA, for Defendant.

MEMORANDUM OPINION AND ORDER

DOUMAR, District Judge.

The Aggravated Identity Theft Penalty Enhancement Act was promulgated by Congress on July 15, 2004. Pub. L 108-275, § 2(a), 118 Stat. 831. The Act created 18 U.S.C. § 1028A, which states 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." Id. § 1028A(a)(1) (emphasis added).

Now before the Court is Defendant Nicolas Manueles Montejo's Motion for Judgment of Acquittal, pursuant to Federal Rule of Criminal Procedure 29, challenging his conviction under 18 U.S.C. § 1028A(a)(1) on the ground that the Government did not prove that he knew that the means of identification that he unlawfully possessed actually belonged to another person, which he contends is an essential element of the offense. The question presented by Montejo's motion, an issue of first impression, is whether § 1028A(a)(1)'s mens rea requirement applies only to the conduct proscribed by the statute — transfer, possession, or use — or instead extends to other elements of the offense, in particular the object used to carry out the proscribed conduct: another person's means of identification.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Factual Background

Defendant Nicolas Manueles Montejo is a Mexican national who entered the United States illegally by walking across the Mexico-United States border in January 2002. Sometime thereafter he traveled to Phoenix, Arizona, where he managed to purchase a false resident alien card and a false social security card for $60.00. Resident alien cards, issued by the Department of Homeland Security ("DHS"), Citizen and Immigration Services, contain the holder's name, photograph, date of birth, alien registration number, and an expiration date. Alien registration numbers are used by non-citizens as proof of legal entry into the United States and also demonstrate that the (legal) holder is lawfully eligible for employment. Like social security numbers, they are assigned to a single person and, once used, are not reassigned to anyone else.

After purchasing the cards, Montejo journeyed from Phoenix to Norfolk, Virginia, where he used them to gain employment at Network Industries, Ltd. ("Network Industries"). Network Industries provides marine repair services and other technical support to commercial customers and government agencies, including the Department of Defense and DHS. As it turns out, the alien registration number contained on the resident alien card that Montejo purchased belonged to a Tanzanian national who is now a naturalized citizen of the United States. Likewise, the social security number that he purchased was assigned to a different, unidentified individual. While Montejo was aware that the cards were false when he purchased them and that it was illegal to present them as his own, he was not aware that the numbers associated with the cards actually belonged to other individuals. He became aware of that fact on or after August 9, 2004, when agents from the Immigration and Customs Enforcement Division of DHS took him into custody at Network Industries' Norfolk offices after learning that he was in fact an illegal immigrant.

A search incident to arrest uncovered the false resident alien card described above, which no longer contained a picture. After being apprised of his Fifth Amendment Miranda rights, Montejo elected to waive them and admitted to the facts recited above. See Statement of Facts, Doc. No. 18 (Sept. 23, 2003). There is no allegation that Montejo ever provided a false identity to Network Industries in order to gain employment there; rather, he only represented that he was legally eligible for employment by providing Network Industries with the false cards bearing his own name. In addition, there are no victims of the alleged offense or any allegations that Montejo's motive related to something other than the desire to gain employment.

B. Procedural History

Montejo was named in a four-count Criminal Indictment charging him with possession of a false immigration document in violation of 18 U.S.C. § 1546(a) (Count One), use of a false immigration document in violation of 18 U.S.C. § 1546(b)(2) (Count Two), false representation of a social security number in violation of 42 U.S.C. § 408(a)(7)(B) (Count Three), and aggravated identity theft in violation of 18 U.S.C. § 1028A(a)(1) (Count Four). Trial was set for September 23, 2004. On August 26, 2004, due to a conflict stemming from representation of defendants charged with similar offenses arising from a similar set of facts, Montejo's Federal Public Defender withdrew from representing him. The Court appointed new counsel on August 30, 2004.

Shortly before trial, on September 17, 2004, Montejo was granted leave to file a Motion to Quash Count Four of the Indictment beyond the pre-trial motions deadline because he had been appointed new counsel. The Motion to Quash contended that Count Four of the Indictment was legally insufficient because it failed to identify the person whose identification was allegedly stolen, which Montejo claimed — and claims now in the instant Motion — is an essential element of aggravated identity theft. 18 U.S.C. § 1028A(a)(1). The Motion to Quash was denied in a written Order on September 21, 2004 because, regardless of the exact scope of the knowledge requirement, the language in the Indictment adequately informed Montejo of the charges against him.

Following denial of the Motion to Quash, prior to trial, the parties entered into an oral plea agreement, whereby the Government agreed to drop Count Two of the Indictment, Montejo agreed to plead guilty to Counts One and Three, and the parties agreed to proceed to a bench trial on Count Four, the aggravated identity theft charge. Additionally, the parties stipulated to the substantive facts set forth above, which are contained in a Statement of Facts validly executed by Montejo, his lawyer, and counsel for the Government, and which was filed in the case record on the day of trial. Doc. No. 18 (Sept. 23, 2004). Since the charge contained in Count One, possession of a false immigration document in violation of 18 U.S.C. § 1546(a), which Montejo pled guilty to, is a predicate felony for aggravated identity theft, see 18 U.S.C. § 1028(c), the only issue to be determined at the bench trial was whether Montejo's level of knowledge was sufficient to convict him of aggravated identity theft in violation of § 1028A(a)(1), the charge contained on Count Four.

As the parties stipulated to the substantive facts, there was no need for evidence to be presented at the September 23, 2004 bench trial. The only issue addressed was the scope of § 1028A(a)(1)'s mens rea requirement. The Government asserted that all § 1028A(a)(1) requires is that the accused knew that the means of identification he transferred, possessed, or used was not his own, regardless of whether he thought it belonged to another person or instead believed that it was fake. Conversely, Montejo argued that § 1028A(a)(1) requires that the accused was aware that the means of identification actually belonged to another individual. The Government countered that, even if § 1028A(a)(1) requires the accused to have known that the means of identification actually belonged to another person, Montejo's conduct was willfully blind to that possibility, which in and of itself satisfies the requirement of "knowledge."

At the conclusion of oral argument, the Court found that the Government satisfied its burden and adjudged Montejo guilty of aggravated identity theft. Before the proceedings were adjourned, Montejo moved for a Judgment of Acquittal pursuant to Federal Rule of Criminal Procedure 29, contending again that his conviction cannot be sustained based on the stipulated facts because the crime of aggravated identity theft requires the accused to have known that the means of identification he unlawfully possessed actually belonged to another person. The Court acknowledged the timeliness of the Motion and established a briefing schedule for the parties to expound upon the scope of § 1028A(a)(1)'s scienter requirement. Having received and reviewed the parties' memoranda, the Court dispensed with additional oral argument on the issue involved because the facts and legal contentions are adequately presented in the parties' memoranda and additional argument would not aid in the decisional process. Consequently, the Motion is ripe for judicial resolution.

II. STANDARD OF REVIEW

A. Motion for Judgment of Acquittal

"A defendant may move for a judgment of acquittal ... within 7 days after a guilty verdict...." Fed.R.Crim.P. 29(c)(1). The question raised by a motion for a judgment of acquittal is whether "as a matter of law the government's evidence is insufficient `to establish factual guilt' on the charges in the indictment." United States v. Alvarez, 351 F.3d 126, 129 (4th Cir.2003) (quoting Smalis v. Pennsylvania, 476 U.S. 140, 144, 106 S.Ct. 1745, 90 L.Ed.2d 116 (1986)). It goes without saying that, as a matter of law, the government bears the burden of proving the essential elements of the offense charged beyond a reasonable doubt. Thus, in reviewing a motion for judgment of...