United States v. Petrona Gaspar , 344 F. App'x 541 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-10724 ELEVENTH CIRCUIT
SEPTEMBER 14, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 08-20965-CR-DLG
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PETRONA GASPAR,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(September 14, 2009)
Before EDMONDSON, BIRCH and FAY, Circuit Judges.
PER CURIAM:
Petrona Gaspar (“Gaspar”) appeals her conviction for aggravated identity
theft in violation of 18 U.S.C. § 1028A(a)(1). Gaspar contends that the
government failed to prove beyond a reasonable doubt that she knew the
identification information she used belonged to another person, as required by
Flores-Figueroa v. United States, ___ U.S. ___, ___, 129 S. Ct. 1886, 1894 (2009).
We agree and REVERSE her conviction for aggravated identity theft.
I. BACKGROUND
A federal grand jury indicted Gaspar in October 2008 on four counts:
(1) willfully and knowingly making a false statement in a passport application, in
violation of 18 U.S.C. § 1542 (Count 1); (2) falsely and willfully representing
herself to be an United States citizen in an attempt to obtain an United States
passport, in violation of 18 U.S.C. § 911 (Count 2); (3) knowingly possessing and
using without lawful authority a means of identification of another person, that of a
birth certificate in the name of “C.T.”, during and in relation to a violation of
§ 1542, in violation of 18 U.S.C. § 1028A(a)(1) (Count 3); and (4) knowingly and
willfully making a false statement in a matter within the jurisdiction of the State
Department, in violation of 18 U.S.C. § 1001(a)(2) (Count 4).
In January 2009, a bench trial was held solely on Count 3, the charge of
aggravated identity theft.1 The only evidence admitted at trial was a joint
1
Gaspar pled guilty to Count 1, and the court dismissed Counts 2 and 4 pursuant to the
government’s motion.
2
stipulation with accompanying exhibits submitted by the government, which
deemed the following facts “true” and “proven beyond a reasonable doubt”:
1. On October 7, 2008, the defendant, in person, applied for a United
States Passport at the Miami Passport Agency . . . . At the Miami
Passport Agency, the defendant submitted an Application for U.S.
Passport, Form DS-11 (Ex. C), listing her name as [C.T.], her Social
Security Number as . . . , date of birth as . . ., and executing the
application in the name of [C.T.].
2. The defendant’s passport application listed Texas as her place of
birth and contained the defendant’s photograph.
3. As proof of identity, the defendant presented a Florida
Identification Card and Florida Driver’s License which are both in the
name of [C.T.] (Ex. A), and as proof of United States citizenship, the
defendant presented a City of Weslaco, Texas birth certificate, in the
name of [C.T.] (Ex. B). The defendant signed the passport application
and certified that all the answers given by her on the application were
true.
4. At the Miami Passport Agency, the defendant swore an oath before
a passport acceptance clerk, who is authorized to accept passport
applications, that all the information on the passport applications (sic)
was true and correct.
5. Prior to submitting the passport application, the defendant
successfully obtained the Florida Driver’s License and Florida
Identification Card by using the City of Weslaco, Texas birth
certificate, in the name of [C.T.] (Ex. B).
6. The defendant’s picture appears on the Florida Identification Card
and Florida Driver’s License which are both in the name of [C.T.]
(Ex. A).
7. On October 7, 2008, Special Agent Ezekiel Grimes from U.S.
Department of State, Bureau of Diplomatic Security interviewed the
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defendant at the Miami Passport Agency. . . . [L]ater in the interview,
the defendant stated her real name was Petrona Gaspar, born on July
11, 1983 in Huehuetenango, Guatemala, and that she was attempting
to obtain a passport to see her father who had passed away in
Guatemala a few days before she submitted her passport application.
The defendant stated she had entered the United States in 1999
through Mexico with the help of a “coyote.” The defendant was given
an “Advice of Rights” form. She read the form and signed it. . . . She
stated that she bought the City of Weslaco, Texas birth certificate in
Tennessee from a co-worker at a chicken packing plant.
8. [C.T.] is a real person.
9. The City of Weslaco, Texas birth certificate, in the name of [C.T.]
(Ex. B), used by the defendant is a means of identification of another
person.
10. The defendant did not have authority to use the City of Weslaco,
Texas birth certificate, in the name of [C.T.] (Ex. B).
11. The defendant is an alien.
12. The defendant knowingly made false statements in her passport
application, with the intent to secure the issuance of the passport, in
that she stated in the application, among other false statements, that
her name was [C.T.] and that she was a citizen of the United States,
when in fact, and as the defendant knew, her name was not [C.T.] and
she was not a citizen of the United States.
R1-21 at 1-3.
Following the admission of this evidence, the district court entertained
Gaspar’s motion for a judgment of acquittal. Gaspar acknowledged that our
precedent at that time did not require the government to prove she knew that the
birth certificate belonged to another actual person. See United States v. Hurtado,
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508 F.3d 603, 610 (11th Cir. 2007) (per curiam), abrogated by Flores-Figueroa v.
United States, ___ U.S. ___, 129 S. Ct. 1886 (2009). Gaspar argued that Hurtado
was wrongly decided, though, and asserted that the government should be required
to prove that she knew C.T. was an actual person. Mindful that the knowledge
issue was under review by the Supreme Court, the judge responded that even if
knowledge were required, he could infer from the facts in the stipulation that
Gaspar knew that C.T. was a real person because “given the fact that [Gaspar] was
attempting to get a passport, she would obviously want to use the documentation of
an actual person because a phony person, a nonexisting person, would create
problems when the passport agency attempted to run background checks, et
cetera.” R2 at 12. After further discussion, the court denied Gaspar’s motion,
finding that the stipulation covered the elements necessary for the government to
prove its case-in-chief under Hurtado. Alternatively, the court found that there was
sufficient evidence to infer that Gaspar was knowledgeable that C.T. was a real
person because Gaspar purchased the birth certificate for value and then obtained
other documents in order to apply for a passport.
The defense then rested without presenting any evidence. The court
adjudicated Gaspar guilty of aggravated identity theft based on the following
findings of fact:
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THE COURT: Very well. Then it would seem that the Court’s
ruling should remain the same. The defendant has presented no
evidence. The Court has to look at the evidence in the light most
favorable to the government. Clearly, with respect to the elements
that are of no contention, the government meets its burden of proof,
and the Court would assert even as to the knowledge issue as it relates
to [C.T.], the Court finds that there is sufficient evidence to find the
defendant guilty, beyond a reasonable doubt standard even, and
accordingly the motion is denied. And for the reasons stated, the
defendant is guilty of the crime charged for the following reason:
The Court adopts the stipulation as the findings of fact in this
[case], and accordingly, based upon the stipulation, the Court finds
that the defendant knowingly, that is, intentionally and not because of
mistake or accident, possessed and used, without any lawful authority,
a means of identification of another person, and that other person was
[C.T.]. And as an aside, . . . the Court finds that there is sufficient
evidence that the defendant knew that [C.T.] was an actual person.
Id. at 16-17. The court sentenced Gaspar on Count 3 to twenty-four months of
imprisonment and two years of supervised release.2
On appeal, Gaspar contends that her conviction for aggravated identity theft
must be vacated because the government failed to prove that Gaspar knew that the
means of identification she used belonged to another person. She contends that our
decision to the contrary in Hurtado was wrongly decided, as evidenced by the
Supreme Court’s recent decision in Flores-Figueroa.3
2
With respect to Gaspar’s conviction on Count 1, the court imposed a consecutive
sentence of one day of imprisonment and a concurrent term of two years of supervised release.
3
Gaspar also argues for the first time in her reply brief that her conviction must be
vacated because she never waived her right to a jury trial as to whether she knew the means of
identification she used belonged to another person. Because she did not raise this issue in her
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II. DISCUSSION
We review de novo the sufficiency of the evidence to uphold a conviction.
See United States v. Tampas, 493 F.3d 1291, 1297 (11th Cir. 2007). “We will not
reverse a conviction for insufficient evidence in a non-jury trial unless, upon
reviewing the evidence in the light most favorable to the government, no
reasonable trier of fact could find guilt beyond a reasonable doubt.” United States
v. Schaltenbrand, 930 F.2d 1554, 1560 (11th Cir. 1991). We review a district
court’s bench trial findings of fact for clear error. See O’Ferrell v. United States,
253 F.3d 1257, 1265 (11th Cir. 2001).
The aggravated identity theft provision requires an enhanced sentence of two
years of imprisonment if a person “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 . . . .” 18 U.S.C.
§ 1028A(a)(1) (emphasis added). At the time of Gaspar’s conviction, our sister
circuits were divided as to whether the knowledge requirement applied to “of
another person.” Compare United States v. Godin, 534 F.3d 51, 61 (1st Cir. 2008)
(knowledge requirement applies to “of another person”); United States v. Miranda-
Lopez, 532 F.3d 1034, 1040 (9th Cir. 2008) (same); United States v. Villanueva-
initial brief, we will not address it. See United States v. Valladares, 544 F.3d 1257, 1269 n.2
(11th Cir. 2008) (per curiam).
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Sotelo, 515 F.3d 1234, 1246 (D.C. 2008), cert. denied, ___ U.S. ___, 129 S. Ct.
2377 (2009) (same), with United States v. Mendoza -Gonzalez, 520 F.3d 912, 915
(8th Cir. 2008), vacated, ___ U.S. ___, 129 S. Ct. 2377 (2009) (knowledge
requirement does not apply to “of another person”); United States v. Montejo, 442
F.3d 213, 215 (4th Cir. 2006) (same). We had agreed with those circuits
concluding that the government need not prove that the defendant knew the
identification used belonged to another actual person. See Hurtado, 508 F.3d at
610.
After the initial briefs were filed in this appeal, the Supreme Court resolved
the circuit split in Flores-Figueroa. The Court held that Ҥ 1028A(a)(1) requires
the Government to show that the defendant knew that the means of identification at
issue belonged to another person.” Flores-Figueroa, ___ U.S. at ___, 129 S. Ct. at
1894. The defendant in Flores-Figueroa had worked for six years under a false
name, using a Social Security number and alien registration number that did not
belong to a real person. See id. at ___, 129 S. Ct. at 1889. He then presented his
employer with new counterfeit Social Security and alien registration cards using
his real name but with numbers that were assigned to actual people. See id. at ___,
129 S. Ct. at 1889. The Eighth Circuit Court of Appeals affirmed his conviction
based on the district court’s determination that the government need not prove that
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the defendant knew the numbers on the counterfeit documents had been allocated
to other people. See id. at ___, 129 S. Ct. at 1889. The United States Supreme
Court reversed, concluding that the word “knowingly” applied to all the
subsequently listed elements of the crime, including the phrase “of another
person.” See id. at ___, 129 S. Ct. at 1890, 1894.
The Court noted that the examples of identity theft given by Congress in its
legislative history all involved situations “where the offender would know that
what he has taken identifies a different real person.” See id. at ___, 129 S. Ct. at
1893. These instances include computer hacking, stealing paperwork likely to
contain personal information, and dumpster diving (rifling through another
person’s trash for credit card and bank statements). See id. at ___, 129 S. Ct. at
1893. Intent would be fairly easy to prove in such classic cases of identity theft.
See id. at ___, 129 S. Ct. at 1893. However, the Court acknowledged that proof of
knowledge would be more difficult in many other circumstances. See id. at ___,
129 S. Ct. at 1893. For example, an alien who uses a false identification document
to obtain employment may not care whether the document belongs to a real person
or is simply a counterfeit paper. See id. at ___, 129 S. Ct. at 1893. In that
circumstance, the government may be able to prove the defendant knew the
document was not his, but would have difficulty in proving beyond a reasonable
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doubt that the defendant knew the document actually belonged to another real
person. See id. at ___, 129 S. Ct. at 1893. Nevertheless, the Court concluded that
any “concerns about practical enforceability are insufficient to outweigh the clarity
of the text.” Id. at ___, 129 S. Ct. at 1893.
“It is the law of this Circuit that a subsequent panel is not obligated to follow
a prior panel’s decision where an intervening Supreme Court decision establishes
that the prior panel decision is wrong.” United States v. Hogan, 986 F.2d 1364,
1369 (11th Cir. 1993). The intervening Supreme Court decision must have
actually overruled or conflicted with the prior panel decision in order to warrant a
departure. See United States v. Marte, 356 F.3d 1336, 1344 (11th Cir. 2004).
Here, the Supreme Court’s decision in Flores-Figueroa directly conflicts with our
holding in Hurtado that the government need not prove the defendant knew that the
identification means he used belonged to another person. See Flores-Figueroa, ___
U.S. at ___, 129 S. Ct. at 1894; Hurtado, 508 F.3d at 610. In accordance with the
Supreme Court’s ruling, we may affirm Gaspar’s conviction for aggravated
identity theft only if the government proved beyond a reasonable doubt that Gaspar
knew the birth certificate she used in applying for a passport in fact belonged to
another person. See Flores-Figueroa, ___ U.S. at ___, 129 S. Ct. at 1894.
Our review of the evidence reveals that the government did not meet its
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burden of proof. The hypothetical envisioned by the Supreme Court in Flores-
Figueroa, that of an alien using another person’s document to procure employment,
is strikingly analogous to the situation here, that of an alien using another person’s
document to procure a passport. As in the hypothetical, the government can prove
that the defendant knew the document was not his. Here, there is no dispute that
Gaspar knew she was using a birth certificate that was not hers. The government
stumbles both in the hypothetical and in this case, however, in trying to prove that
the defendant knew the document belonged to a real person.
As the government implicitly concedes, there is no direct evidence that
Gaspar knew the birth certificate belonged to an actual person at the time she
applied for the passport. Although it was stipulated that the birth certificate was in
fact a means of identification of a real person (C.T.), it was not stipulated that
Gaspar knew that C.T. existed when she used the document to obtain a passport.
The government presumably did not include this element in the joint stipulation
given that Hurtado did not require it. Consequently, there is no evidence that
Gaspar ever met or spoke with C.T. (who was born in Texas), or that the co-worker
who sold the birth certificate to Gaspar in Tennessee mentioned that C.T. was a
real person.
Nor is intent readily proven from the circumstances of the case given that
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Gaspar did not commit classic identity theft. She did not search another person’s
trash, hack into someone’s computer account, or pretend to be someone else to
obtain personal information. Rather, Gaspar bought a document from a co-worker,
and later agreed, after the fact, that the document identified a real person.
Given this dearth of evidence, we conclude that the district court’s finding
that Gaspar knew that C.T. was a real person is clearly erroneous. That finding
was based on the court’s inference that Gaspar would “obviously want to use the
documentation of an actual person” in order to pass a background check run by the
passport agency. R2 at 12. The court’s inference is refuted by the factual scenario
in Flores-Figueroa, where the defendant remained employed for six years using a
Social Security number and counterfeit alien registration card that did not belong
to a real person. See Flores-Figueroa, ___ U.S. at ___, 129 S. Ct. at 1889. As that
case demonstrates, an individual can successfully use documents that do not belong
to a real person in order to secure benefits such as employment, even though
employers also presumably run background checks. In any event, even if the
district court’s inference was valid, at most it proves that Gaspar might have an
incentive to buy an authentic birth certificate, not that she knew whether she
actually purchased one.
We therefore conclude that the evidence, even when viewed in the light most
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favorable to the government, is insufficient for a rational trier of fact to find
beyond a reasonable doubt that Gaspar knew that the birth certificate belonged to
another person when she used it for her passport application. Accordingly,
Gaspar’s conviction for aggravated identity theft cannot stand. See id. at ___, 129
S. Ct. at 1889.
III. CONCLUSION
For the foregoing reasons, we REVERSE Gaspar’s conviction on count three
for aggravated identity theft under § 1028A(a)(1), REMAND for entry of acquittal,
and VACATE the sentence imposed as to that count.
REVERSED and REMANDED.
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