U.S. v. Salazar-Montero

• Citation: 520 F.Supp.2d 1079
• Decision Date: 25 October 2007
• Docket Number: No. CR 07-2020-MWB.,CR 07-2020-MWB.
• Parties: UNITED STATES of America, Plaintiff, v. Hugo SALAZAR-MONTERO, Defendant.
• Court: U.S. District Court — Northern District of Iowa

520 F.Supp.2d 1079

UNITED STATES of America, Plaintiff, v. Hugo SALAZAR-MONTERO, Defendant.

No. CR 07-2020-MWB.

United States District Court, N.D. Iowa, Eastern Division.

October 25, 2007.

COPYRIGHT MATERIAL OMITTED

Sean R. Berry, U.S. Attorney's Office, Cedar Rapids, IA, for Plaintiff.

Jane Kelly, Federal Public Defender, Cedar Rapids, IA, for Defendant.

MEMORANDUM OPINION AND ORDER REGARDING DEFENDANT'S RULE 12(b)(2) MOTION FOR RULING ON ELEMENTS OF OFFENSE CHARGED UNDER 18 U.S.C. 1028A

MARK W. BENNETT, District Judge.

What is the "plain meaning" of a statute, 18 U.S.C. § 1028A, which imposes additional penalties for "aggravated identity theft"? More specifically, does the statute require that the defendant know only that he or she is using, possessing, or transferring a means of identification of another person, or does it require that the defendant also know that the means of identification is that of another actual person? The split among the few courts to consider this question suggests the truth of Justice Brennan's observation, "[P]lain meaning, like beauty, is sometimes in the eye of the beholder." Florida Power & Light Co. v. Lorion, 470 U.S. 729, 737, 105 S.Ct. 1598, 84 L.Ed.2d 643 (1985).

I. INTRODUCTION

A. The Indictment

On August 30, 2007, a Grand Jury handed down a two-count Indictment charging defendant Hugo Salazar-Montero with possession of forged documents as evidence of authorized employment and aggravated identity theft. More specifically, Count 1 of the Indictment, which charges the possession of forged documents offense, charges that, on or about August 8, 2007, Salazar-Montero knowingly possessed one or more documents prescribed by statute or regulation as evidence of authorized employment in the United States, which Salazar-Montero allegedly knew had been forged, counterfeited, falsely made, and otherwise unlawfully obtained, all in violation of 18 U.S.C. § 1546(a). The forged documents identified in Count 1 are a social security card bearing the last four digits "2893," an IRS Individual Taxpayer Identification Number card bearing the last four digits "8908," and a North Carolina Driver's License bearing the last four digits "0122." Count 2 of the Indictment, which charges the aggravated identity theft offense, charges that, on or about August 8, 2007, during and in relation to the offense charged in Count 1, Salazar-Montero knowingly possessed, without lawful authority, a means of identification of another person, namely, a social security card number bearing the last four digits of "2893," which was assigned to an actual person, all in violation of 18 U.S.C. § 1028A(a)(1).

Salazar-Montero was arraigned on the charges in the Indictment on September 5, 2007, at which time the entered a plea of not guilty to both charges. The subsequent Trial Management Order (docket no. 5), filed September 19, 2007, set a deadline for nontrial-related motions of twenty-eight days after the date of the arraignment (i.e., October 3, 2007), set a deadline of fourteen days before the commencement of trial for trial-related motions, and set a jury trial for November 5, 2007. Salazar-Montero filed an unresisted motion to continue trial (docket no. 7) on October 9, 2007. The court granted the continuance by order (docket no. 9) dated October 10, 2007, and reset the trial for December 3, 2007.

B. The Motion To Determine Elements Of The Offense

On October 3, 2007, Salazar-Montero served and filed his Fed.R.Crim.P. 12(b)(2) Motion For Legal Ruling On Elements Of Offense Charged Under 18 U.S.C. § 1028A (Defendant's Rule 12(b)(2) Motion) (docket no. 6), which is now before the court.¹ The crux of Salazar-Montero's argument in this motion is that, to prove a § 1028A(a)(1) offense, the prosecution must prove that he knew that the means of identification that he possessed belonged to an actual person. Salazar-Montero candidly acknowledges that this has not been the majority view of courts to construe the statute or, indeed, the view of my colleague in this district, who has rejected such an interpretation of the statute defining the "aggravated identity theft" offense on at least three occasions. See United States v. Aguilar-Morales, 2007 WL 2903189 (N.D.Iowa Oct.2, 2007) (slip op.); United States v. Garcia-Xclhua, 2007 WL 2710801 (N.D.Iowa Sept.13, 2007) (slip op.); United States v. Ordonez-Alguijay, 2007 WL 2710805 (N.D.Iowa Sept.13, 2007) (slip op.).

On October 10, 2007, the prosecution filed its Resistance (docket no. 8) to Salazar-Montero's Rule 12(b)(2) Motion. In essence, the prosecution argues that, under interpretations of the "aggravated identity theft" statute by the Eighth Circuit Court of Appeals and other courts, it is apparent that the mens rea requirement applies only to the use of the means of identification, not to whether or not the means of identification belonged to another person.

This matter is now fully submitted.

II. LEGAL ANALYSIS

Before the court can determine the extent of the "knowledge" requirement in the "aggravated identity theft" statute, the court must pause to consider whether it has the authority to make such a determination on a pretrial motion. Consideration of the court's authority is appropriate not least because another federal district court presented with a pretrial motion raising the question of the proper interpretation of the "knowingly" requirement in § 1028A(a)(1) "declined to render an abstract legal interpretation of the statute before trial." See United States v. Godin, 489 F.Supp.2d 118, 119 (D.Me.2007) (Godin II) (characterizing its previous ruling, United States v. Godin, 476 F.Supp.2d 1 (D.Me.2007) (Godin I)).

A. Authority To Determine Elements Of The Offense Pre-Trial

Salazar-Montero contends that Rule 12(b)(2) of the Federal Rules of Criminal Procedure permits the court to make a pretrial ruling on the legal issue of the proper elements of the § 1028A offense with which he is charged. The prosecution apparently does not dispute that contention, but the court will, nevertheless, assure itself that it does, indeed, have the authority under Rule 12(b)(2) or otherwise to make the requested ruling at this time.

Rule 12 provides, in pertinent part, as follows:

(b) Pretrial Motions

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(2) Motions That May Be Made Before Trial. A party may raise by pretrial motion any defense, objection, or request that the court can determine without a trial of the general issue.

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(c) Motion Deadline. The court may, at the arraignment or as soon afterward as practicable, set a deadline for the parties to make pretrial motions and may also schedule a motion hearing.

(d) Ruling on a Motion. The court must decide every pretrial motion before the trial unless it finds good cause to defer a ruling. The court must not defer ruling on a pretrial motion if the deferral will adversely affect a party's right to appeal. When factual issues are involved in deciding a motion, the court must state its essential findings on the record.

FED.R.CRIM.P. 12(b)(2), (e), (d). Rule 12(b)(2) has been used, during the pendency of the action, to challenge such things as the jurisdiction of the court, see United States v. Patton, 309 F.3d 1093, 1094 (8th Cir.2002), to assert outrageous government conduct, see United States v. Nguyen, 250 F.3d 643, 645-46 (8th Cir. 2001), or to attack the sufficiency of the indictment to allege the elements of the charged offense, see United States v Wolff; 241 F.3d 1055, 1056-57 (8th Cir. 2001); see also FED.R.CRIM.P. 12(b)(3) (specifying certain motions that must be made pretrial); FED.R.CRIM.P. 12, Advisory Committee Notes to 2002 Amendments (noting that Rule 12(b)(2) and (3) now more clearly describe which motions may and which motions must be made pretrial). More specifically, for present purposes, my colleague in this district also recently construed a motion to dismiss a § 1028A charge as a motion pursuant to Rule 12(b)(2) to determine the elements of the offense. See United States v. Ordonez-Alquijay, 2007 WL 2710805, *1 (N.D.Iowa Sept. 13, 2007).

This court also finds that determination of the elements of an offense is a matter that May properly be made pretrial pursuant to Rule 12(b)(2). Rule 12(b)(2) states the standard for issues that can be raised pursuant to the rule to be whether the motion can be determined by the court "without a trial of the general issue." FED. R.CRIM.P. 12(b)(2). Determination of the elements of an offense does not require a trial of the general issue, the defendant's guilt or innocence, although it is more often an integral part of creation of jury instructions. A Rule 12(b)(2) motion to determine the elements of an offense, which may be brought pretrial, is also a correlate of what is now expressly described as a Rule 12(b)(3) motion "alleging a defect in the indictment or information," such as a claim that the indictment "fails ... to state an offense," which Rule 12(b)(3) provides may be heard "at any time while the case is pending." See FED. R.CRIM.P. 12(b)(3)(B). The correlation is apparent, because the court cannot determine whether the indictment fails to state an offense unless the court first determines the elements of the offense.

Because Rule 12(b)(2) gives the court the authority to consider pretrial Salazar-Montero's motion to determine elements of the § 1028A offense, the question is whether it is appropriate to "defer a ruling" on his motion until a later point in the proceedings, such as during creation of jury instructions nearer to or in the course of trial. See FED.R.CRIM.P. 12(d). As mentioned above, in United States v. Godin, a judge of the United States District Court for the District of Maine declined to make a pretrial determination of the elements of a § 1028A offense, because to do so would have been "to render an abstract legal interpretation of the statute before trial." See Godin II, 489 F.Supp.2d at 119 (characterizing its previous ruling in Godin I, 476...