U.S. v. Villanueva-Sotelo, 07-3055.

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Citation515 F.3d 1234
Docket NumberNo. 07-3055.,07-3055.
PartiesUNITED STATES Of America, Appellant v. Gustavo VILLANUEVA-SOTELO, Appellee.
Decision Date15 February 2008
515 F.3d 1234
UNITED STATES Of America, Appellant
Gustavo VILLANUEVA-SOTELO, Appellee.
No. 07-3055.
United States Court of Appeals, District of Columbia Circuit.
Argued November 2, 2007.
Decided February 15, 2008.

[515 F.3d 1235]

Appeal from the United States District Court for the District of Columbia (No. 06cr00271-01).

Ellen Chubin Epstein, Assistant U.S. Attorney, argued the cause for appellant. With her on the briefs were Jeffrey A. Taylor, U.S. Attorney, Roy W. McLeese, III, Elizabeth Trosman, and Frederick W. Yette, Assistant U.S. Attorneys.

Steven R. Kiersh, appointed by the court, argued the cause and filed the brief for appellee.

Before: HENDERSON and TATEL, Circuit Judges, and WILLIAMS, Senior Circuit Judge.

[515 F.3d 1236]

Opinion for the Court filed by Circuit Judge TATEL.

Dissenting opinion filed by Circuit Judge HENDERSON.

TATEL, Circuit Judge:

The federal "[a]ggravated identity theft" statute imposes two additional years of imprisonment on any person who during the commission of an enumerated felony "knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person." 18 U.S.C. § 1028A(a)(1). The question before us is this: to obtain a conviction under section 1028A(a)(1), must the government prove the defendant knew the "means of identification" he "transfer[red], possesse[d], or use[d]" actually belonged to "another person," or is it sufficient for the government to show that the means of identification happened to belong to another person? Based on the statute's text, purpose, and legislative history—and mindful that the rule of lenity comes into play when, after resort to the traditional tools of statutory interpretation, reasonable doubt remains as to the statute's meaning—we hold that section 1028A(a)(1)'s mens rea requirement extends to the phrase "of another person," meaning that the government must prove the defendant actually knew the identification in question belonged to someone else.


Defendant Gustavo Villanueva-Sotelo, a Mexican national, has entered the United States illegally three times and has been deported twice. In August 2006, District of Columbia Metropolitan Police approached Villanueva-Sotelo and asked him for identification. Villanueva-Sotelo presented the officers with what appeared to be a permanent resident card—an official document issued by the Department of Homeland Security proving its holder is authorized to stay or work in the United States. Villanueva-Sotelo's card displayed his own name and photograph, listed Mexico as his country of origin, and included an alien registration number. Villanueva-Sotelo admits he knew the card was a fake. Although the government can prove that the alien registration number displayed on the card belonged to another individual, it concedes—critically for this case—that it lacks any evidence that Villanueva-Sotelo actually knew this.

The government charged Villanueva-Sotelo with unlawful entry of a removed alien in violation of 8 U.S.C. § 1326(a) and (b)(1) (count one), possession of a fraudulent document prescribed for authorized stay or employment in the United States in violation of 18 U.S.C. § 1546(a) (count two), and aggravated identity theft in violation of 18 U.S.C. § 1028A(a)(1) (count three). In full, the identity theft statute reads: "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. (emphasis added).

Villanueva-Sotelo pled guilty to the first two counts but moved to dismiss count three, the aggravated identity theft charge, arguing that section 1028A(a)(1) requires the government to prove he actually knew the alien registration number belonged to another person. Agreeing with the defendant, Judge Friedman held that the word "knowingly" in section 1028A(a)(1) must "modify both the verbs and the object, that is, `means of identification of another person.'" Hr'g Tr. at 50 (Apr. 4, 2007). In reaching this conclusion, the Judge found the following exchange

515 F.3d 1237

with the prosecutor particularly illuminating:

[PROSECUTOR]: [I]t is stealing in the sense that in make up a number and it belongs to someone else, I have taken that person's number that was rightfully assigned by a U.S. agency.

THE COURT: If you make up the number?


THE COURT: What if you make up a number that doesn't belong to anybody?

[PROSECUTOR]: Then you don't charge the offense, there is no offense because it's not a means of identification of another person.

THE COURT: So if the defendant picked a number out of the air and it was [your] number, he's guilty, but if he picked a number out of the air and [Immigration and Customs Enforcement] hasn't assigned it to anybody, he's not guilty?

[PROSECUTOR]: That's correct.

Id. at 15. Unable to conclude that a scenario like this amounts to identity theft, see id. at 48, Judge Friedman granted Villanueva-Sotelo's motion to dismiss count three.

The government now appeals. Because this case presents a pure question of statutory interpretation, we review the district court's decision de novo. See Butler v. West, 164 F.3d 634, 639 (D.C.Cir.1999).


Our interpretive task begins with the statute's language. See Barnhart v. Sigmon Coal Co., 534 U.S. 438, 450, 122 S.Ct. 941, 151 L.Ed.2d 908 (2002). We must first "determine whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case." Robinson v. Shell Oil Co., 519 U.S. 337, 340, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997). If it does, our inquiry ends and we apply the statute's plain language. See Sigmon Coal, 534 U.S. at 450, 122 S.Ct. 941. But if we find the statutory language ambiguous, we look beyond the text for other indicia of congressional intent. See Staples v. United States, 511 U.S. 600, 605, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994) ("[D]etermining the mental state required for commission of a federal crime requires `construction of the statute and ... inference of the intent of Congress.'" (omission in original) (quoting United States v. Balint, 258 U.S. 250, 253, 42 S.Ct. 301, 66 L.Ed. 604 (1922))).

Reduced to its essence, section 1028A(a)(1) reads as follows: "Whoever ... knowingly ... uses, without lawful authority, a means of identification of another person shall ... be sentenced to a term of imprisonment of 2 years." According to the government, this text is unambiguous: the statute's knowledge requirement extends only so far as "means of identification," requiring no proof the defendant knew the identification belonged to "another person." For his part, Villanueva-Sotelo contends the statute is ambiguous and that the provision's title, purpose, and legislative history reveal Congress's intent to extend the mens rea requirement throughout the entire sentence, namely all the way to "of another person." We agree with the defendant. Although the government's interpretation is plausible, nothing suggests it represents the only possible—or even the most plausible—reading of section 1028A(a)(1). See McCreary v. Offner, 172 F.3d 76, 82 (D.C.Cir.1999) (finding a statute ambiguous because it was "reasonably susceptible to more than one meaning"); see also Air Transp. Ass'n of Am. v. FAA, 169 F.3d 1, 4 (D.C.Cir.1999) ("Although the inference petitioner would draw as to the statute's

515 F.3d 1238

meaning is not by any means unreasonable, it is also not inevitable.").

The parties focus on the word "knowingly," debating whether that adverb modifies the phrase "of another person." But a simple diagram of the relevant statutory text readily demonstrates that, from a grammatical point of view, this is not the correct question:


The word "knowingly" technically modifies only the verb that follows it ("uses"). It modifies neither the direct object ("means") nor the two prepositional phrases that follow ("of identification of another person"). See ROBERT FUNK ET AL., THE ELEMENTS OF GRAMMAR FOR WRITERS 62 (MacMillan 1991) ("An adverb, in standard English, modifies almost anything except a noun.").

In the end, this grammatical observation is beside the point given that the parties, as well as relevant case law interpreting similarly structured statutes (cases we discuss below), are best understood as using the word "modify" more loosely, equating it with words such as "apply," "extend," or "attach." See, e.g., United States v. X-Citement Video, Inc., 513 U.S. 64, 73, 115 S.Ct. 464, 130 L.Ed.2d 372 (1994); Liparota v. United States, 471 U.S. 419, 424-25 n. 7, 105 S.Ct. 2084, 85 L.Ed.2d 434 (1985); United States v. Nofziger, 878 F.2d 442, 446 (D.C.Cir.1989). Thus, framing the question in terms of statutory interpretation, we ask how far section 1028A(a)(1)'s mens rea requirement—"knowingly"— reaches in the statute.

That question requires us to focus on the statute's direct object, "means." "Means" is modified by the prepositional phrase "of identification," which, in turn, is modified by a second prepositional phrase, "of another person." As the government concedes, the mens rea requirement must extend at least to the direct object's principal modifier, "of identification." Were it otherwise, a person could be convicted for "knowingly using] or transfer[ring]," without lawful authority, anything at all that happened to contain a means of identification. As one district court explained:

If during a bank fraud conspiracy, I hand a defendant a sealed envelope asking her to transfer it and its contents to another and she knowingly does so, she has knowingly transferred the envelope and its contents. But if she believes my statement that the envelope contains only a birthday card when...

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