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September 24, 2008

The Split on the Identity Theft Statute Continues When First Circuit Uses Rule of Lenity

U.S. v. Godin, __ F.3d ___ (1st Cir. July 17, 2008), analyzes whether a person who commits identity theft must know that they are actually 'stealing' the identity of another person, or, if they just have to know their using, for example, a ssn number that is not their own. The opinion begins:

Defendant-Appellant Cori A. Godin challenges her conviction for aggravated identity theft under 18 U.S.C. § 1028A(a)(1). The statute adds a mandatory two-year term of imprisonment to that otherwise provided for certain enumerated felonies if, “during and in relation to” the felony, the perpetrator “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 this court is how far the “knowingly” mens rea requirement extends. Must the defendant know that the means of identification belongs to another person? We conclude that the statute is ambiguous and that the legislative history does not clearly reveal congressional intent. Applying the rule of lenity, as we must, we hold that the “knowingly” mens rea requirement extends to “of another person.” In other words, to obtain a conviction under § 1028A(a)(1), the government must prove that the defendant knew that the means of identification transferred, possessed, or used during the commission of an enumerated felony belonged to another person. The government did not do so here. Accordingly, we reverse Godin’s conviction.

It furthers a split discussed below. The court engaged in an extensive grammatical analysis of the statute, finding it ambiguous, before turning to the legislative history, and, ultimately, the rule of lenity. It's a very well reasoned decision.

September 24, 2008 | Permalink


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