U.S. v. Retana

• Citation: 641 F.3d 272
• Decision Date: 07 June 2011
• Docket Number: No. 10–2909.,10–2909.
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.Salvador E. RETANA, also known as Salvador E. Retana–Lopez, also known as Salvador E. Lopez–Retana, also known as Salvador E. Lopez, Defendant–Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

641 F.3d 272

UNITED STATES of America, Plaintiff–Appellee,

v.Salvador E. RETANA, also known as Salvador E. Retana–Lopez, also known as Salvador E. Lopez–Retana, also known as Salvador E. Lopez, Defendant–Appellant.

No. 10–2909.

United States Court of Appeals, Eighth Circuit.

Submitted: April 12, 2011.Filed: June 7, 2011.

Travis D. Poindexter, Asst. Fed. Public Defender, Kansas City, MO, argued (Raymond C. Conrad, Jr., Fed. Public Defender, on the brief), for appellant.Kathleen D. Mahoney, Asst. U.S. Atty., Kansas City, MO, argued (Beth Phillips, U.S. Atty., William A. (Trey) Alford III, Asst. U.S. Atty., on the brief), for appellee.Before WOLLMAN and MELLOY, Circuit Judges, and MILLER,¹District Judge.MELLOY, Circuit Judge.

Salvador E. Retana appeals his conviction for aggravated identity theft. 18 U.S.C. § 1028A(a)(1). Retana admits that he used his father's social security number “during and in relation to” the commission of other crimes, and the government does not dispute the fact that Retana's father gave Retana permission to use the social security number. Id. In light of the father's permission, Retana argues that the government failed to prove an element of the offense, namely, that the use was “without lawful authority.” Id. Because we agree with the district court ² that the father's permission does not amount to “lawful authority” we affirm the judgment of the district court.

I.

Defendant Retana fraudulently used his father's social security number as though it were his own to form a construction business, open an account with Bank of America, and file certain tax papers. He used his father's number to open the bank account because he owed money and did not want other banks recovering funds from accounts bearing his real social security number. Ultimately, through his construction business, he paid cash wages below the applicable prevailing rate on a federal government project, failed to pay unemployment insurance, employed illegal aliens, and submitted false payrolls to the Department of the Navy. He eventually received approximately $440,000 for work performed on the government project and paid substantially less than this amount to workers (with many payments made as unreported cash payments). Investigators were unable to account for over half of the $440,000.

These activities eventually led to charges against Retana for multiple offenses including one count of theft of government money, 18 U.S.C. § 641; one count of theft from a program receiving federal funds, 18 U.S.C. § 666; three counts of making materially false statements, 18 U.S.C. § 1001; and one count of aggravated identity theft, 18 U.S.C. § 1028A. He pleaded guilty to all counts other than aggravated identity theft, an offense that carries a mandatory, consecutive two-year term of incarceration. See 18 U.S.C. § 1028A(b)(2). As to this remaining count, he admitted all elements of the offense except one: the requirement that his use of “the means of identification of another person” be “without lawful permission.” As to this element, the record is undisputed: he obtained permission from his father to use the father's social security number.

Retana then waived his right to a jury trial and proceeded with a bench trial. The district court held that use of the father's means of identification was without lawful authority and found Retana guilty of aggravated identify theft. Retana appeals.

II.

The statutory text of the offense at issue, “Aggravated identity theft,” provides:

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).

On one level, Retana's argument is simplistic: he had his father's permission and, therefore, did not commit the “theft” of any person's identity. Retana's argument is based on the title of the offense and on the assumption that “lawful authority” means merely permission from the person identified by the means of identification at issue in the case. We reject this argument because § 1028A(a)(1) employs the term “lawful authority” rather than the term “permission” and because the statute is broader than mere theft; the text of § 1028A(a)(1) encompasses “transfer[ ], possess[ion], or use [ ] without lawful authority.” In addition to citing the title of the offense, Retana cites passages of legislative history that he claims support his interpretation. None of his cited comments from lawmakers, however, are sufficient to overcome the plain language of the statute. Further, while it may be true that some legislators appear to have been concerned primarily with situations involving actual stealing (i.e. situations where the offender had no authority or permission from the “victim” to use the means of identification, lawful or otherwise), Congress did not pass a statute criminalizing merely this type of narrowly defined theft offense.

On another level, Retana's argument is more complex. He argues, essentially, that his father had the power to grant lawful authority for Retana to use the father's social security number. He also appears to argue that even if the father lacked such power, the government failed to prove that Retana knew the use was without lawful authority. We address these arguments in more detail.

In United States v. Hines, 472 F.3d 1038 (8th Cir.2007) (per curiam), the Eighth Circuit held that the use of another person's social security number to commit a qualifying felony, even with that person's permission, served as use “without lawful authority” in violation of § 1028A. Hines, 472 F.3d at 1040 (“Whether Hines used Miller's name without permission ... or ... obtained Miller's consent in exchange for illegal drugs, Hines acted without lawful authority when using Miller's identification.”). Here, Retana's argument is based on the theory that Hines is not controlling because the Supreme Court's reasoning in Flores–Figueroa v. United States, ––– U.S. ––––, 129 S.Ct. 1886, 173 L.Ed.2d 853 (2009), so severely undercut the rationale of Hines as to render Hines no longer good law. The district court disagreed and found itself still bound by Hines. In the alternative, the district court held that even if not bound by Hines, it believed the government proved Retana's violation.

We agree with the district court as to both points. Flores–Figueroa is material to our analysis, but it did not undermine the authority of Hines in the manner urged by Retana. The Court in Flores–Figueroa held the term “knowingly” in § 1028A(a)(1) modified the subsequent phrase “of another person.” 129 S.Ct. at 1888. Accordingly, to prove the offense of aggravated identity theft, the government had to prove that the defendant knew the means of identification was associated with an actual person rather than being purely fabricated. Id. at 1894. Here, it is undisputed that Retana knew he was using his father's identification. The question remains, however, whether the term “knowingly” applies to the phrase “without lawful authority.” We believe that it does.

In discussing whether the term “knowingly” modified the phrase “of another person,” the Flores–Figueroa Court observed that “[a]s a matter of ordinary English grammar, it seems natural to read the statute's word ‘knowingly’ as applying to all the subsequently listed elements of the crime.” 129 S.Ct. at 1890 (emphasis...