CASE COMMENTS Criminal Law

Transcription

1 CASE COMMENTS Criminal Law First Circuit Deems Aggravated Identity Theft Statute Ambiguous and Applies Rule of Lenity United States v. Godin, 534 F.3d 51 (1st Cir. 2008) The prosecution usually must prove a criminal defendant had the necessary mens rea, or culpable mental state, generally defined by the legislature in criminal statutes, to convict him or her of a crime. 1 Title 18, section 1028A(a)(1) of the United States Code, the aggravated identity theft statute, provides for an additional two-year term of imprisonment if during and in relation to certain enumerated felonies the perpetrator knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person. 2 In United States v. Godin, 3 the United States Court of Appeals for the First Circuit considered whether the knowingly mens rea requirement of section 1028A(a)(1) extends to of another person, or if it is limited to transfers, possesses, [and] uses. 4 The First Circuit held that the mens rea requirement extends to of another person, thus requiring that the government prove that the defendant knew the means of identification used during an enumerated felony belonged to another person. 5 In 2006, Cori A. Godin defrauded eight banks of approximately $40,000 through a scheme in which she used seven different fabricated social security 1. See Staples v. United States, 511 U.S. 600, 605 (1994) (recognizing mental state required for conviction requires construction of statute and inference of Congress s intent); see also GEORGE E. DIX & M. MICHAEL SHARLOT, CRIMINAL LAW: CASES AND MATERIALS 304 (5th ed. 2002) (noting some crimes require mens rea for conviction). 2. See 18 U.S.C. 1028A(a)(1) (2006) (prescribing mandatory additional two-year sentence for aggravated identity theft) (emphasis added). Section 1028A(a)(1) states in full: 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.; see also 18 U.S.C. 1028A(c) (2006) (listing felonies triggering application of enhanced aggravated identity theft penalty). A defendant may be charged with aggravated identify theft when an unlawful means of identification is used in the course of social security fraud, passport fraud, theft of public property, fraud in the acquisition of a firearm, citizenship fraud, and other crimes. 18 U.S.C. 1028A(c) (2006) F.3d 51 (1st Cir. 2008). 4. See id. at 53 (setting forth issue on appeal); see also 18 U.S.C. 1028A(a)(1) (2006) (citing statutory language interpreted by court). 5. See 534 F.3d at (applying rule of lenity in favor of defendant because mens rea requirement ambiguous).

2 1014 SUFFOLK UNIVERSITY LAW REVIEW [Vol. XLII:1013 numbers. 6 Of the fabricated numbers, only one actually belonged to an individual. 7 The grand jury charged Godin with bank fraud, social security fraud, and aggravated identity theft under section 1028A(a)(1). 8 After the district court judge denied Godin s motion to dismiss the aggravated identity theft count, she pleaded guilty to the other charges and proceeded to trial solely on the aggravated identity theft count. 9 At trial, Godin moved for a judgment of acquittal, contending that because the statute uses the word knowingly, the government was required to prove that she knew that the social security number she used belonged to another person and that the government had failed to do so. 10 The district court denied the motion and instructed the jury that the government was not required to prove she knew that the means of identification belonged to another person See id. at 54 (describing Godin s method of defrauding banks). Godin s scheme involved opening accounts with fabricated social security numbers, closing some of those accounts, and then depositing checks drawn on the closed accounts into her remaining open accounts. Id. She then withdrew funds from the falsely inflated accounts. Id. 7. See id. at 54 (detailing Godin s method of fabricating social security numbers). Godin altered the fourth and fifth digits of her own social security number to generate the numbers she used in her scheme. Id. 8. See id. (listing government s charges against Godin). The seventeen count indictment included six counts of bank fraud, ten counts of social security fraud, and one count of aggravated identity theft. Id. The count of aggravated identity theft charged Godin with knowingly using a social security number that actually belonged to another person in the commission of one count of bank fraud and one count of social security fraud. Id.; see also 18 U.S.C. 1028A(c)(5), (11) (2006) (providing application of aggravated identity theft statute to both bank and social security fraud). See generally 18 U.S.C (2006) (providing offense of bank fraud); 42 U.S.C. 408(a)(7)(B) (2006) (defining offense of social security fraud). 9. See 534 F.3d at 51, 54 (discussing Godin s decision to plead guilty and proceed to trial on aggravated identify theft); United States v. Godin, 476 F. Supp. 2d 1, 2-3 (D. Me. 2007) (describing Godin s argument on motion to dismiss and court s reasoning for denying motion), rev d, 534 F.3d 51 (1st Cir. 2008). Godin argued that to qualify for the enhanced penalty of section 1028A(a)(1), the defendant must actually know that the unauthorized identification in question was that of another person. United States v. Godin, 476 F. Supp. 2d 1, 1 (D. Me. 2007), rev d, 534 F.3d 51 (1st Cir. 2008). The court denied the motion because a question of fact existed as to what Godin knew regarding the number, and the court declined to reach the mens rea issue. Id. at 1, See 534 F.3d at 54 (discussing lack of evidence proving Godin knew number belonged to someone else). The government called an employee of Bank of America who testified that Godin had used the social security number in issue to open an account, but that she gave her correct name, address, phone number, driver s license number, and date of birth. Id. The government then called a Special Agent for the Social Security Administration to testify that the social security number belonged to a man who lived in Maine. Id. at The agent also testified that there are millions of unassigned social security numbers and one could not tell by looking at the number if it belonged to another person. Id. at See United States v. Godin, 489 F. Supp. 2d 118, (D. Me. 2007) (explaining reasons for deciding knowingly does not extend to of another person ), rev d, 534 F.3d 51 (1st Cir. 2008). The district court first reasoned that the language of the statute was not strongly persuasive in either direction and therefore accommodated this interpretation. Id. at 120. Second, the majority of case law at the time supported the conclusion that knowingly does not modify of another person. Id. Third, knowingly also extends to means of identification because the defendant must know that the means of identification is fraudulent to be convicted under the statute. Id. Fourth, the statute s purpose of punishing identity theft supports the district court s reading because the Maine resident was a victim of identity theft, whether Godin knew she was stealing his identity or not. Id. at 121. The court reasoned that a person who uses a means of identification that does not belong to him or her does so at the risk that it belongs to someone else. Id. Based on these reasons, the

3 2009] CASE COMMENT 1015 The jury returned a guilty verdict, and Godin appealed. 12 On appeal, the First Circuit determined that section 1028A(a)(1) is grievously ambiguous, and consequently held that the rule of lenity applies, extending the knowledge requirement to of another person. 13 The court reversed the conviction because the government failed to prove that Godin knew the social security number she used was actually assigned to another person. 14 When interpreting the elements of a statutory offense, courts begin their analysis by interpreting the statute s text and the plain meaning of the words in the context of the entire statute. 15 If the meaning of the text is ambiguous, or admit[s] of more than one reasonable interpretation, courts may turn to the legislative history to determine the intent of Congress in enacting the statute. 16 If a court cannot resolve a grievous ambiguity by any method of statutory interpretation, the rule of lenity requires a court interpret the ambiguity in favor of the defendant. 17 The rule applies only if after seizing everything from court instructed the jury as follows: To convict Cori Godin of this offense, the government must prove each of the following elements beyond a reasonable doubt: First, Cori Godin committed bank fraud and /or social security fraud felony violations. The parties stipulate that she did so. Second, during and in relation to one or both of those other felony violations, Cori Godin knowingly used a means of identification without lawful authority. Third, that means of identification belonged to another person..... Knowingly means that the act was done voluntarily and intentionally and not because of mistake or accident. The government must prove that Cori Godin knew that she did not have lawful authority to use the means of identification in question. The government is not required to prove that she knew the means of identification actually belonged to another person. Id. at (emphasis added). 12. See 534 F.3d at (discussing verdict and procedural history). 13. See id. at 61 (concluding rule of lenity applies because statute s ambiguity cannot be resolved by traditional statutory interpretation). 14. See id. at 62 (reversing conviction because evidence did not show Godin knew the number belonged to another). The court stated: We find nothing to support a finding that Godin knew that social security number XXXX belonged to another person. The false number was identical to her own except for the fourth and fifth digits. The only inference a rational jury could make from this evidence is that Godin randomly selected the two fabricated numbers. Id. 15. See United States v. Jimenez, 507 F.3d 13, 19 (1st Cir. 2007) (stating process of statutory interpretation begins with its text). 16. See Gen. Motors Corp. v. Darling s, 444 F.3d 98, 108 (1st Cir. 2006) (allowing courts to look to legislative history only when statutory language ambiguous); Thinking Machs. Corp. v. Mellon Fin. Servs. Corp., 67 F.3d 1021, 1025 (1st Cir. 1995) (indicating when plain meant of text not conclusive). 17. See, e.g., United States v. Santos, 128 S. Ct. 2020, 2025 (2008) (explaining why rule of lenity requires interpretation of ambiguous laws in favor of defendants); United States v. Councilman, 418 F.3d 67, 83 (1st

4 1016 SUFFOLK UNIVERSITY LAW REVIEW [Vol. XLII:1013 which aid can be derived, [a court] can make no more than a guess as to what Congress intended. 18 The rule embodies the principles that courts should not extend the reach of a statute beyond what the legislature enacted and that courts should not punish individuals when statutes are ambiguous. 19 Circuits are divided on whether the knowingly mens rea in section 1028A(a)(1) extends to of another person. 20 The Fourth, Eighth, and Eleventh Circuits have concluded that it does not extend; thus, to be convicted, a defendant is not required to know that the identification he or she used belongs to another person. 21 Each of those circuits looked to the statute s language and reasoned that it is clear that knowingly modifies the verbs transfers, possesses, [and] uses, but does not extend to of another person. 22 Cir. 2005) (discussing use of rule of lenity when statute contains grievous ambiguity court cannot resolve); Conrad Hester, Note, Reviving Lenity: Prosecutorial Use of the Rule of Lenity as an Alternative to Limitations on Judicial Use, 27 REV. LITIG. 513, 519 (2008) (describing rule of lenity as a last-resort tie-breaker ). See generally Zachary Price, The Rule of Lenity as a Rule of Structure, 72 FORDHAM L. REV. 885 (2004) (discussing rule of lenity s application). 18. See Reno v. Koray, 515 U.S. 50, 65 (1995) (stating when rule of lenity applies). See generally United States v. Councilman, 418 F.3d 67, 83 (1st Cir. 2005); People v. Cole, 135 P.3d 669, (Cal. 2006); People v. Canty, 90 P.3d 1168, 1173 (Cal. 2004). 19. See Hester, supra note 17, at (discussing purposes and benefits of rule of lenity). The rule serves a number of functions including upholding the constitutional principles of separation of powers, equal protection, due process, and providing for the legality of criminal statutes. Id. at 515. Hester argues that legislatures, and not courts, should define criminal activity, and that by declining to fill in the ambiguous statute with their own interpretation, judges prevent legislatures from handing down unclear laws, therefore forcing legislative clarity in penal statutes. Id. at 516. According to Hester, the rule of lenity limit[s] the possibility of arbitrary interpretation in gray areas, and provid[es] equal protection by requiring judges to use a consistent application of statutory law in convictions. Id. at 517. The rule also serves the interest of legality by prohibiting creative and possibly unintended constructions of an ambiguous statute. Id. at 518; Sarah Newland, Note, The Mercy of Scalia: Statutory Construction and the Rule of Lenity, 29 HARV. C.R.-C.L. L. REV. 197, 197 (1994) (introducing principles behind rule of lenity). 20. See Petition for Writ of Certiorari, Flores-Figueroa v. United States, No , 2008 WL , at *8 (U.S. July 22, 2008), cert. denied, 129 S. Ct. 452 (2008) (identifying even division of circuit courts over scope of mens rea requirement in section 1028A(a)(1)). 21. See United States v. Mendoza-Gonzalez, 520 F.3d 912, 915 (8th Cir. 2008) (concluding government not required to prove defendant knew false identity documents belonged to actual person); United States v. Hurtado, 508 F.3d 603, 607 (11th Cir. 2007) (holding knowledge that victim was a real person not required under section 1028A(a)(1)), cert. denied, 128 S. Ct (2008); United States v. Montejo, 442 F.3d 213, 214 (4th Cir. 2006) (holding knowledge identification actually belonged to another unnecessary for conviction under statute), cert. denied, 127 S. Ct. 366 (2006). 22. See United States v. Mendoza-Gonzalez, 520 F.3d 912, 915 (8th Cir. 2008) (concluding knowingly element of section 1028A(a)(1) is unambiguous). The Eighth Circuit determined that the plain language of the statute limits knowingly to modifying transfers, possesses or uses and not of another person. Id.; United States v. Hurtado, 508 F.3d 603, 609 (11th Cir. 2007) (concluding knowingly does not modify of another person based on language of section 1028A(a)(1)), cert. denied, 128 S. Ct (2008). The Eleventh Circuit noted that knowingly modifies transfers, possesses, or uses, and not the later language in the statute. United States v. Hurtado, 508 F.3d 603, 609 (11th Cir. 2007) (concluding knowingly does not modify of another person based on language of section 1028A(a)(1)), cert. denied, 128 S. Ct (2008); United States v. Montejo, 442 F.3d 213, (4th Cir. 2006) (holding text of aggravated identity theft statute not ambiguous), cert. denied, 127 S. Ct. 366 (2006). Looking to the statute and examining its grammar, the Fourth Circuit reasoned that as a matter of common usage, [the word] knowingly does not modify the entire lengthy predicate that follows it. United States v. Montejo, 442 F.3d 213, 215 (4th Cir. 2006) (holding text of

5 2009] CASE COMMENT 1017 None of these circuits relied on the statute s legislative history, although the Fourth and Eighth Circuits indicated that they would view that history as supporting its interpretation of the text. 23 Furthermore, the Eighth and Eleventh Circuits noted that if Congress had intended to extend the mens rea requirement to the entire provision, it could have drafted the statute in such a way. 24 The District of Columbia Circuit, however, recently reached the opposite conclusion, holding that the knowledge requirement extends to the phrase of another person. 25 The D.C. Circuit rejected the notion that knowingly only modifies the verbs that follow it and deemed the statute ambiguous because one cannot determine from the words alone if knowingly extends to of another person. 26 After examining the legislative history, the D.C. Circuit concluded that the legislature s intent was not to punish people who were unaware that the identification belonged to someone else. 27 The differing interpretations among aggravated identity theft statute not ambiguous), cert. denied, 127 S. Ct. 366 (2006). But see United States v. Villanueva-Sotelo, 515 F.3d 1234, 1236 (D.C. Cir. 2008) (concluding knowingly extends to of another person ). 23. See United States v. Mendoza-Gonzales, 520 F.3d 912, 915 (8th Cir. 2008) (relying solely on statute s plain language); United States v. Hurtado, 508 F.3d 603, 607 (11th Cir. 2007) (reasoning based on plain meaning alone), cert. denied, 128 S. Ct (2008); United States v. Montejo, 442 F.3d 213, 215 (4th Cir. 2006) (relying on grammar of statute), cert. denied, 127 S. Ct. 366 (2006). Both the Fourth and Eighth Circuits noted that the legislative history also supports their interpretations. See United States v. Mendoza-Gonzalez, 520 F.3d 912, (8th Cir. 2008) (noting it would reach same conclusion even if it looked beyond text of statute); United States v. Montejo, 442 F.3d 213, 217 (4th Cir. 2006) (clarifying it would still reach same conclusion by looking beyond text), cert. denied, 127 S. Ct. 366 (2006). The Eighth Circuit would still conclude that section 1028A(a)(1) does not require proof that the defendant knew that the means of identification belonged to another person if it looked beyond the words of the statute. United States v. Mendoza-Gonzales, 520 F.3d 912, 915 (8th Cir. 2008). The Eighth Circuit noted that Congress clearly intended identity theft to be read generically and for the punishment to apply whenever a person uses another person s personal data. Id. (emphasis in original). 24. See United States v. Hurtado, 508 F.3d 603, 609 (11th Cir. 2007) (noting Congress could have drafted statute differently to extend mens rea if desired), cert. denied, 128 S. Ct (2008). The court stated, If Congress had intended to extend the knowledge requirement... it could have drafted the statute to prohibit the knowing transfer, possession, or use, without lawful authority, of the means of identification known to belong to another actual person. Id.; see also United States v. Mendoza-Gonzalez, 520 F.3d 912, 915 (8th Cir. 2008) (noting placement of knowingly before verbs indicates Congress intended knowingly to modify only those verbs). 25. See United States v. Villanueva-Sotelo, 515 F.3d 1234, 1236 (D.C. Cir. 2008) (holding mens rea extends to of another person ); see also United States v. Miranda-Lopez, 532 F.3d 1034, 1040 (9th Cir. 2008) (reaching same conclusion after First Circuit decided Godin case). 26. United States v. Villanueva-Sotelo, 515 F.3d 1234, (D.C. Cir. 2008) (stating text is ambiguous because both interpretations offered accord with ordinary usage). The court relied on Liparota v. United States, in which the Supreme Court held that a similar statute was ambiguous as a matter of grammar because it is not at all clear how far down the sentence the word knowingly is intended to travel. Id. (citing Liparota v. United States, 471 U.S. 419, 425 n.7 (1985) (quoting W. LAFAVE & A. SCOTT, CRIMINAL LAW (1972)). 27. See United States v. Villanueva-Sotelo, 515 F.3d 1234, (D.C. Cir. 2008) (determining section 1028A(a)(1) requires defendants to know means of identification used belongs to another). The court gleaned the intent of Congress from the legislative history of section 1028A(a)(1). Id. The court focused on the House Judiciary Committee Report, reasoning it emphasizes Congress s intent to target identity thieves, and not those who use another s identity by chance. Id. The court viewed the legislative record as not alluding to a

6 1018 SUFFOLK UNIVERSITY LAW REVIEW [Vol. XLII:1013 the circuits create a split that shows no sign of abating. 28 In United States v. Godin, the First Circuit examined whether the knowingly mens rea requirement of section 1028(a)(1) extends to of another person. 29 Relying on the plain language of the statute and the Supreme Court s interpretation of a similarly structured statute, the court was convinced that ambiguity exists as to whether knowingly extends to of another person. 30 When the structure of the statute failed to resolve the ambiguity, the First Circuit turned to the legislative history. 31 The court viewed the legislative history as implying two plausible theories: Congress intended either only to punish those who knowingly use another s identification or to cover actions not fitting the traditional definition of theft. 32 The First Circuit declared that it was unable to ascertain Congress s intent, despite using all of the methods of statutory construction, and that the rule of lenity therefore applied. 33 Despite the Fourth, Eighth, and Eleventh Circuits insistence that the text of section 1028A(a)(1) is unambiguous, the First Circuit was correct in determining that the reach of the knowledge requirement is ambiguous because it is not clear how far down the sentence the word knowingly is intended to travel. 34 The statute s ambiguity forced the First Circuit to examine the legislative history, which provided no help, therefore leaving the court with no option but to apply the rule of lenity. 35 Courts apply the rule of lenity where a situation in which a defendant wrongfully obtained another s information unknowingly, unwittingly, and without intent. Id. at 1245; see also H.R. REP. NO , at 3 (2004), reprinted in 2004 U.S.C.C.A.N. 779, 780 [hereinafter House Report] (discussing Congress s rationale in enacting section 1028A(a)(1)). The report states that the Identity Theft Penalty Enhancement Act modified section 1028A(a)(1) to address the growing problem of identity theft. House Report, supra (explaining purpose of Act). One stated purpose of the statute is to increase sentences for identity thieves. Id.; see also BLACK S LAW DICTIONARY 1516 (8th ed. 2004) (defining theft as the felonious taking and removing of another s personal property with the intent of depriving the true owner over it.... ). 28. See Petition for Writ of Certiorari, Flores-Figueroa v. United States, No , 2008 WL , at *7 (U.S. July 22, 2008), cert. denied, 129 S. Ct. 452 (2008) (describing issue as a conflict that is everwidening) F.3d at (interpreting statute to determine reach of mens rea requirement). 30. Id. at 58 (relying on Liparota in determining plain meaning of statute s text ambiguous); see also supra note 26 and accompanying text (discussing D.C. Circuit s similar use of Liparota case) F.3d at 59 (turning to legislative history after concluding structure and statute s title do not resolve ambiguity). 32. See id. at (noting problems caused by two reasonable interpretations of legislative history). The court agreed that the D.C. Circuit reached a reasonable reading of the legislative history. Id. The D.C. Circuit, focusing on the House Report s emphasis on theft, concluded that Congress intended only to punish thieves, or those who knowingly use another s identification. Id. The First Circuit struggled, however, with the fact that the same House Report could also be reasonably interpreted as evincing the opposite intent. Id. The First Circuit noted that the House Report defines identity theft broadly as all types of crimes in which someone wrongfully obtains and uses another s personal data. Id. (quoting House Report, supra note 27). The court reasoned that all crimes could conceivably cover crimes that fall outside traditional theft. Id. 33. Id. at 61 (holding rule of lenity applies, extending mens rea requirement to of another person ). 34. See id. at (describing reach of mens rea in statute s text as unclear); see also supra note 26 and accompanying text (discussing basis for concluding text of section 1028A(a)(1) ambiguous). 35. See 534 F.3d at 61 (describing exhaustion of other interpretative means). The court stated that despite

7 2009] CASE COMMENT 1019 statute is reasonably susceptible to two interpretations and the differing opinions stand in equipoise, meaning the defendant s interpretation is at least as plausible as that of the government. 36 In this case, it is plausible that the legislature sought to punish people who use false identification whether or not they knew the identification belonged to another; however, it is equally plausible the legislature was only seeking to punish those who intentionally stole another s identification. 37 The second reading, adopted by the D.C. Circuit, is a more sensible interpretation. 38 A defendant who intends to steal another s identification is worthy of greater punishment than one who unintentionally picks an identification number that coincidentally matches one already issued to another person. 39 The D.C. Circuit persuasively reasons along these lines that the defendant should be required to know that the identification belonged to someone else to receive the enhanced penalty; otherwise, the statute would punish a defendant based solely on the chance they knew the identification belonged to another. 40 However, because of the statute s ambiguity and no clear indication as to congressional intent, the rule of lenity applies. 41 Despite failing to solve the problem at bar, by refusing to interpret the statute one way or another, the First Circuit correctly applied the rule of lenity. 42 Soon after United States v. Godin was decided, the Ninth Circuit also concluded the statute s legislative history was inconclusive and applied the rule of lenity in favor of the defendant. 43 By declining to fill in the ambiguous statute with its own interpretation, the First Circuit vindicated the principle that use of all methods of statutory construction available, it was still unable to ascertain whether Congress, in creating section 1028A(a)(1), intended to increase punishment for crimes in which a person knowingly uses a false means of identification, without knowing that it belongs to someone else. Id. 36. See supra notes 17, 19 and accompanying text (explaining when rule of lenity applies). 37. See supra note 23 and accompanying text (discussing several circuits interpretation of legislative history). But see supra note 27 and accompanying text (outlining contrary interpretation of statute s legislative history). 38. See Petition for Writ of Certiorari, Flores-Figueroa v. United States, No , 2008 WL , at *7 (U.S. July 22, 2008) (outlining why certiorari appropriate and urging adoption of D.C. Circuit s interpretation of section 1028A(a)(1)), cert. denied, 129 S. Ct. 452 (2008). 39. See Petition for Writ of Certiorari, Flores-Figueroa v. United States, No , 2008 WL , at *7-8 (U.S. July 22, 2008) (noting additional level of culpability arises when defendant seeks to use identification of another), cert. denied, 129 S. Ct. 452 (2008). 40. See United States v. Villanueva-Sotelo, 515 F.3d 1234, 1243 (D.C. Cir. 2008) (explaining court s inability to square government s position with congressional intent). The court stated a defendant could pick a series of numbers out of the air and win two extra years in prison if those numbers happened to coincide with an assigned identification number, yet escape punishment... had he picked a slightly different string of random numbers. That s not theft. Id. (internal citation omitted). 41. See supra notes 17, 19 and accompanying text (explaining rule of lenity applies when two interpretations are plausible). 42. See 534 F.3d at 61 (applying rule of lenity due to court s inability to ascertain congressional intent). 43. See United States v. Miranda-Lopez, 532 F.3d 1034, 1040 (9th Cir. 2008) (holding rule of lenity applies because legislative history not conclusive regarding intent).

8 1020 SUFFOLK UNIVERSITY LAW REVIEW [Vol. XLII:1013 no court should hold citizens accountable for violating unclear statutes. 44 Nevertheless, a ruling from the Supreme Court or clarification by Congress regarding the meaning of section 1028A(a)(1) is necessary to avoid continuing disagreement among the circuits. 45 The federal circuits are divided over whether the knowingly mens rea requirement of the aggravated identity theft statute extends to of another person. Although some circuits have held that the defendant is not required to know that the means of identification used belong to another individual, others have held that the defendant is required. In United States v. Godin, the First Circuit declined to adopt either plausible interpretation of the legislative history, but rather applied the rule of lenity. The court reasoned the statute was grievously ambiguous and thus required an interpretation in favor of the defendant. Jaclyn N. Woodworth 44. See supra note 19 and accompanying text (discussing numerous principles rule of lenity upholds). 45. See Petition for Writ of Certiorari, Flores-Figueroa v. United States, No , 2008 WL , at *7 (U.S. July 22, 2008) (petitioning Supreme Court to resolve the mens rea issue of section 1028A(a)(1)), cert. denied, 129 S. Ct. 452 (2008). The petition states, [t]he continued disparate application of the severe penalties of Section 1028A(a)(1) to similarly situated defendants should not endure. Id.; see also 534 F.3d 51, 63 (1st Cir. 2008) (Lynch, C.J., concurring) (noting it would be beneficial if the Supreme Court resolved the mens rea issue).