IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
April 26, 2010
UNITED STATES OF AMERICA
BRIAN LEE MORGAN, DEFENDANT.
The opinion of the court was delivered by: Yohn, J.
Pursuant to 28 U.S.C. § 2255, Brian Lee Morgan moves pro se to vacate the twenty-four month portion of the seventy-five month sentence he received, after a guilty plea, for crimes related to his involvement in an identity fraud scheme. The court imposed this twenty-four month portion of his sentence under 18 U.S.C. § 1028A(a)(1) for aggravated identity theft. Section 1028A(a)(1) makes it unlawful, during the commission of certain felonies, to "knowingly transfer, possess, or use, without lawful authority, a means of identification of another person . . . ." Morgan now claims that his conviction and sentence violated due process because the government did not establish and he did not admit that he knew at the time of the offense that the means of identification he misused belonged to a real person, as required by the Supreme Court's ruling in United States v. Flores-Figueroa, 129 S.Ct. 1886 (2009), decided after his guilty plea and sentence. Morgan did admit, as part of his guilty plea, that the means of identification he misused was authentic. He claims, however, that he would not have pleaded guilty to the charge if he had correctly understood this element. Based on the record in this case, I find that the government did not establish that Morgan knew that the means of identification belonged to a real person at the time he misused it.
The parties have not, however, sufficiently briefed the issue of what the effect of such a finding would be, including but not limited to: (1) whether a trial should be held on the aggravated identity theft charge; (2) whether Morgan should be resentenced on the other charges to which he pleaded guilty; or (3) whether Morgan should be allowed to withdraw his guilty plea to all of the charges. Accordingly, I will order the parties to submit supplemental briefing within 20 days.
I. Factual and Procedural Background
On April 4, 2006, the government filed an eight-count indictment against Morgan for his involvement in an identity fraud scheme. The government revised the charges on July 12, 2006, by filing a ten count superseding information. The superseding information added, among other things, a count for aggravated identity theft under § 1028A(a)(1), Count Nine. (Superseding Information 10.) Count Nine charged that on or about February 7, 2006, Morgan "knowingly and without lawful authority possessed and used a means of identification of another person, that is, a Pennsylvania driver's license in the name of A.S., during and in relation to credit card fraud." (Id.)
On July 13, 2006, the government submitted to the court a written Guilty Plea Agreement in which Morgan pleaded guilty to five counts of the superseding information, including Count Nine. At that time, the government also submitted a Change of Plea Memorandum, in which it acknowledged that at trial it would have had to prove the following elements to establish a violation of § 1028A(a)(1):
To establish a violation of § 1028A(a)(1) (Count Nine), the government must prove the following essential elements beyond a reasonable doubt:
1. The defendant possessed a means of identification of another person;
2. The defendant did so knowingly and without lawful authority; and
3. The defendant's possession of the means of identification was during and in relation to a felony conviction.
(Change of Plea Mem. 3 (emphasis added).)
The government stated in the Memorandum that at trial it would have introduced evidence of Morgan's participation in an identity fraud scheme, including the following evidence:
1. A confidential witness would have testified that in approximately 2004 he "brought stolen information" to Morgan from which "Morgan made fraudulent driver's licenses, medical insurance cards and credit cards" which the witness and his associate told Morgan they would use, and which they did use, to obtain loans for the purchase of three cars (id. at 5);
2. A search of a building at 1913 S. Alden Street that Morgan visited on numerous occasions uncovered sophisticated equipment needed for the manufacture of false identification documents, as well as financial and identity information belonging to other people, such as "a checkbook in another person's name," "an authentic credit card in another person's name," and "an authentic New York driver's license in another person's name" (id. at 7-8);
3. A search of an unlocked briefcase found at 1913 S. Alden Street uncovered, among other things, "copies of various Pennsylvania driver's licenses" and "copies of personal checks in other people's names" (id. at 8);
4. A search of Morgan's residence at 4517 St. Malachy's Way uncovered, among other things, "checks and check books in other people's names" and "[a] credit application in another person's name" (id. at 10);
5. A search of Morgan's Plymouth uncovered, among other things, "a driver's registration in another person's name" (id. at 11);
6. A search of Morgan's Cadillac uncovered, among other things, "[a] Social Security card of another person," "authentic driver's licenses in various names," "credit reports and passport photos of various people," and "a Fed-Express envelope containing a cash register receipt roll with approximately 250 credit card account numbers" (id. at 10-11).
In all, the government determined that in these searches it had seized over 6,700 credit card account numbers. (Id. at 9.)
Specific to Count Nine, the charge of aggravated identity theft under § 1028A(a)(1), the government stated that its agents found in the trunk of Morgan's Cadillac "an authentic Pennsylvania driver's license in the name of 'A.S.'" which "matched the name on a counterfeit American Express credit card found and seized at 1913 S. Alden Street" and which matched the name on "three counterfeit credit cards" created using "the credit card making machine" found at 1913 S. Alden Street. (Id. at 11.) The government further stated that it would have presented as a witness at trial a representative of the Pennsylvania Bureau of Motor Vehicles who would have testified that the Bureau "had issued the driver's license to 'A.S.'" (Id.)
On July 19, 2006, Morgan pleaded guilty in open court to: (1) producing and trafficking in counterfeit access devices (Count One); (2) producing false identification documents (Count Two); (3) possessing equipment used to make false identification documents (Count Five); (4) aggravated identity theft (Count Nine); and (5) possessing a firearm by a convicted felon in connection with another felony offense (Count Ten). (Guilty-Plea Hr'g Tr. 15:8-16:18.) As part of the guilty-plea hearing, the prosecutor summarized the essential elements of each charge, including the elements of aggravated identity theft under § 1028A(a)(1):
To prove that violation, the Government would have to prove the Defendant; one, possessed a means of identification of another person; two, did so knowingly and without lawful authority; and, three, the Defendant's possession of the means of identification was during and in violation to a felony violation. (Id. at 29:15-31:16 (emphasis added).)*fn1
The court then asked the prosecutor to set forth the facts the government would have been prepared to prove at trial, to ensure that Morgan would "admit that those facts are correct and that [he] did the things they say [he did]" and that "these facts fit the charges against [him]." (Id. at 31:20-25.) The prosecutor began by adopting the facts set forth in the Change of Plea Memorandum. (Id. at 32:3-14.) Morgan confirmed that he had read those facts and agreed and admitted that he "did the things that the Government says [he] did in that document." (Id. at 32:15-17.)*fn2 The prosecutor then summarized those facts in open court. (Id. at 32:21-38:11). In general, the prosecutor stated that the search of 1913 Alden Street revealed that the property "was a plant for making counterfeit credit cards and counterfeit IDs":
There was . . . computer equipment found, along with counterfeit documents, counterfeit credit cards, counterfeit driver's license, [and] authentic documents of stolen identification and credit card information from different individuals. (Id. at 34:21-25.) The prosecutor also stated specifically that "the basis for the 1028A violation" was the discovery in the trunk of Morgan's Cadillac of "an authentic driver's license" issued by the Pennsylvania Bureau of Motor Vehicles to an individual whose initials are A.S. and whose name "matched the name on a counterfeit American Express card found and seized at 1913 South Alden Street" and three other credit cards made on a "credit-card-making machine" found at the Alden Street residence (id. at 35:21-36:7). The prosecutor reiterated that the government would have presented as a witness a representative of the Pennsylvania Bureau of Motor Vehicles, who would have testified that "it issued the driver's license to this individual with the initials A.S." (Id. at 35:24-36:1.) Morgan then agreed that the prosecutor had "accurately summarized [his] activities" and again admitted "doing what the Government says that [he] did." (Id. at 38:12-17.)*fn3
The court then found, based on its colloquy with Morgan and the prosecutor, that:
(1) Morgan was competent to plead guilty; (2) his plea was free and voluntary and not the result of any force or threats or any promises apart from those contained in the written Guilty Plea Agreement; (3) there was a factual basis for the plea of guilty; and (4) he understood the charges, his legal rights, and the maximum possible penalties, including that he was waiving his right to a trial by pleading guilty. (Id. at 38:24-39:21.)*fn4
On June 17, 2008, after granting the government's motion for a downward departure pursuant to U.S.S.G. § 5K1.1 based on Morgan's cooperation with prosecutors concerning the other participants in the identity fraud scheme, the court sentenced Morgan to seventy-five months' imprisonment, consisting of: (1) fifty-one months to be served concurrently on Counts One, Two, Five, and Ten; and (2) twenty-four months on Count Nine, to be served consecutively to the sentence on Counts One, Two, Five, and Ten. (Judgment, Docket No. 39.)
On June 12, 2009, Morgan filed a "Motion to Recall the Mandate." (Docket No. 40.) In that motion, Morgan claimed that his conviction under Count Nine was "demonstrably wrong" because the government could not have proved that he knew that the means of identification he was accused of misusing in Count Nine belonged to a real person, as is required by the Court's later ruling in Flores-Figueroa. (Mot. to Recall Mandate 2.) According to Morgan, "[t]he government's failure to provide proof of this element requires reversal of the defendant's conviction":
An element of the statute 18 U.S.C. 1028A(a)(1) which requires a finding that the defendant was aware that the bogus identifying information used belonged to a real person requires proof. The government must prove this particular element.
The government's failure to provide proof of this element requires reversal of the defendant's conviction even though the evidence may have strongly suggested that the defendant should have known that the bogus identifying information belonged to an actual person . . . . (Id. (citing United States v. Tureseo, 566 F.3d 77, 82-83 (2d Cir. 2009)).) Because Morgan's motion was styled as a "Motion to Recall the Mandate," but challenged his conviction and sentence, on July 20, 2009, the court offered Morgan the choice of pursuing the motion as filed or having it recharacterized as a § 2255 motion, pursuant to United States v. Miller, 197 F.3d 644 (3d Cir. 1999). (Docket No. 42.)*fn5
On July 31, 2009, when he filed his Motion to Recharacterize, Morgan attempted to clarify his claim, stating that his guilty plea "violated the due process clause of the United States Constitution." (Mot. to Recharacterize at 2.) Morgan also claimed that he "unquestionably received constitutionally deficient advice from counsel and as a matter of law could not have voluntarily, knowingly or intelligently pled guilty to a statute [as to] which he lacked understanding of the elements." (Id.) He stated that he "never met" A.S., that the real A.S. "never gave me an ID," that he never agreed as part of his guilty plea that he "knew" A.S., that he never "agreed and admitted to this 'A.S.' authentic PA driver's license," and that he never agreed that he "knew" of the authenticity of the license. (October 11, 2009, Letter from Morgan to Court replying to government's response to Motion to Recharacterize ("Reply") 1-2.)
II. Legal Standards
Pursuant to 28 U.S.C. § 2255, a federal prisoner may move the sentencing court to vacate, set aside, or correct his sentence if "the sentence was imposed in violation of the Constitution or laws of the United States, . . . the court was without jurisdiction to impose [the] sentence, . . . the sentence was in excess of the maximum authorized by law, or [the sentence] is otherwise subject to collateral attack." When a prisoner files a § 2255 motion, the district court may dismiss the motion without an evidentiary hearing if "the motion and files and records of the case show conclusively that the movant is not entitled to relief." Virgin Islands v. Forte, 865 F.2d 59, 62 (3d Cir. 1989) (citation omitted). In making this determination, "the court must accept the truth of the movant's factual allegations unless they are clearly frivolous on the basis of the existing record." Id. A court may ascertain the factual basis for a guilty plea "by looking to the defendant's own admissions, the government's proffer of evidence, the presentence report, or whatever means is appropriate in a specific case -- so long as the factual basis is put on the record." United States v. Cefaratti, 221 F.3d 502, 509 (3d Cir. 2000) (internal quotations omitted).
In Bousley v. United States, 523 U.S. 614, 618 (1998), the Supreme Court held that if a guilty plea concerns counts arising under a statute that is later found not to reach the defendant's conduct, that guilty plea violates due process. "A plea of guilty is constitutionally valid only to the extent it is 'voluntary' and 'intelligent.'" Id. (citation omitted). Where a record "reveals that neither [the petitioner], nor his counsel, nor the court correctly understood the essential elements of the crime with which he was charged[, the] petitioner's plea [is] constitutionally invalid." Id. at 618-19.
If a plea is found to be constitutionally invalid, a court may have a number of different remedies under § 2255:
If the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.
28 U.S.C. § 2255; see also United States v. Barron, 172 F.3d 1153, 1158 (9th Cir. 1999) ("[There is no] reason for reducing § 2255 remedies to two (discharge or new trial) when a plea agreement is in force . . . . [T]he district court can distinguish the convictions that are still valid, reinstate the judgment, and resentence.").
Thus, "if convictions on some counts of a multi-count indictment are vacated the court may resentence the defendant to enhanced sentences on the remaining counts." United States v. Goggins, 99 F.3d 116, 118 (3d Cir. 1996). "[I]t is within the bounds of due process to resentence a defendant on remaining counts after some, but not all counts, are vacated." McKeever v. Warden SCI-Graterford, 486 F.3d 81, 88 (3d Cir. 2007) (contrary to the defendant's contention, "rescission of the entire plea agreement was not the only appropriate remedy"). Furthermore, although a court may vacate the entire plea agreement, the Third Circuit has declined to adopt a rule that would "render a multi-count indictment per se invalid when a subsequent change in the law renders a defendant innocent of some, but not all, of the counts therein" and has rejected the argument "that such a plea could never be entered by a defendant voluntarily and intelligently." Id. at 86 (emphasizing that the "sentencing package doctrine," whereby an entire plea agreement may be vacated where a part is held invalid, should be confined to cases in which the sentences on the underlying counts were interdependent); see also Brady v. United States, 397 U.S. 742, 756-57 (entire plea need not be vacated due to subsequent change in the statute upon which only a part of the plea was premised); United States v. Murray, 144 F.3d 270, 273 n.4 (3d Cir. 1998) (interdependent offenses "result in an aggregate sentence, not sentences which may be treated discretely.")
Morgan claims that his conviction under Count Nine violated due process because § 1028A(a)(1) required the government to prove that he knew at the time that the means of identification he misused belonged to a real person. (Mot. to Recharacterize 1.) He claims that the government could not have proved this element because he never met A.S., the owner of the driver's license in question, and did not know that the driver's license belonged to a real person. (Reply 1-2.)*fn6
The government argues that, consistent with the decision in Flores-Figueroa, it acknowledged during the proceedings its obligation to prove that Morgan knew that the means of identification he was misusing belonged to a real person and it set forth a sufficient factual basis to establish this element. (Government's Response to Defendant's Motion Pursuant to 28 U.S.C. § 2255 ("Response") 4, 5, 7.) Furthermore, the government argues that Morgan expressly agreed and admitted to the factual basis for his guilty plea. (Id.)
I find that the government failed to proffer sufficient evidence to support the conviction and sentence under § 1028A(a)(1). Although the elements of § 1028A(a)(1) as set forth by the government were not inconsistent with Flores-Figueroa, there is no evidence in the record that Morgan actually knew that A.S. was a real person at the time that Morgan misused A.S.'s driver's license.
The parties have not, however, provided the court with sufficient briefing concerning what the effect of such a finding might be. A court has a number of remedies under § 2255 when it finds a judgment to have violated due process. For example, the court may vacate and set the judgment aside, resentence the defendant, grant a new trial, or correct the sentence "as may appear appropriate." 28 U.S.C. § 2255. In addition,"if convictions on some counts of a multi-count indictment are vacated the court may resentence the defendant to enhanced sentences on the remaining counts." Goggins, 99 F.3d at 118. I will therefore order the parties to provide supplemental briefing on this issue within 20 days.*fn7
A. The Supreme Court's Ruling in Flores-Figueroa Requires the Government to Have Shown That at the Time Morgan Misused A.S.'s Driver's License Morgan Knew That A.S. Was a Real Person
Section 1028A(a)(1) imposes a mandatory 2-year prison term for anyone who, during the commission of certain felonies,"knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person . . . ." Prior to the ruling in Flores-Figueroa, circuits were split over whether the word "knowingly" in § 1028A(a)(1) only applies to the phrase "transfers, possesses, or uses a means of identification" or also applies to the phrase "of another person." Compare United States v. Godin, 534 F.3d 51, 61 (1st Cir. 2008) (knowledge requirement applies to "of another person") with United States v. Mendoza-Gonzalez, 520 F.3d 912, 915 (8th Cir. 2008) (finding that "knowingly" only modifies "transfers, possesses, or uses" and therefore the government must only prove "that the means of identification in fact belonged to a real person, not that the defendant knew that it did."). At the time Morgan pleaded guilty, neither the Third Circuit nor the Supreme Court had interpreted this element of § 1028A(a)(1).
The Supreme Court did interpret this element of § 1028A(a)(1), however, subsequent to Morgan's guilty plea. In Flores-Figueroa, the defendant had worked under a false name, using a social security number and alien registration number that did not belong to a real person. FloresFigueroa, 129 S.Ct. at 1889. After six years of using such counterfeit identity information, he presented his employer with a new counterfeit alien registration card and social security card, which used his real name but with alien registration and social security numbers that were assigned to actual people. Id. After the government charged him with, among other things, aggravated identity theft under § 1028A(a)(1), he moved for acquittal, claiming that the government "could not prove that he knew that the numbers on the counterfeit documents were numbers assigned to other people." Id. (emphasis in original). The government replied -- and the district court agreed -- that the government need not prove such knowledge. Id. After a bench trial, the district court found the defendant guilty of aggravated identity theft, a determination upheld by the court of appeals. Id. The Supreme Court granted certiorari to consider the "knowledge" issue. Id.
In their arguments before the Court, the parties agreed that the provision of § 1028A(a)(1) that requires the government to prove that a defendant "knowingly transfer[red], possesse[d], or use[d], without lawful authority, a means of identification of another person" applies "only where the offender knows that he is transferring, possessing, or using something." Id. (emphasis in original). The parties did not agree, however, "whether the provision requires that a defendant also know that the something he has unlawfully transferred is, for example, a real ID belonging to another person rather than, say, a fake ID . . . ." Id. (emphasis in original).
The Court held that § 1028A(a)(1) required that the defendant knew that he was unlawfully transferring, possessing, or using real means of identification. Id. at 1894. The Court explained that "[a]s a matter of ordinary English grammar, it seems natural to read the statute's word 'knowingly' as applying to all the subsequently listed elements of the crime." Id. at 1890. "In ordinary English, where a transitive verb has an object, listeners in most contexts assume that an adverb (such as knowingly) that modifies the transitive verb tells the listener how the subject performed the entire action, including the object as set forth in the sentence." Id. Furthermore, "fully consistent with this ordinary English usage . . . . courts ordinarily read a phrase in a criminal statute that introduces the elements of a crime with the word 'knowingly' as applying that word to each element." Id. at 1891 (citations omitted). Accordingly, the Court held that, pursuant to "the ordinary meaning, in English or through ordinary interpretive practice," the word "knowingly" in § 1028A(a)(1) modifies not only the phrase "transfers, possesses, or uses" but also the phrase "of another person." Id. at 1894. The Court concluded therefore that "§ 1028A(a)(1) requires the Government to show that the defendant knew that the means of identification at issue belonged to another person." Id.*fn8
Throughout its opinion, the Court distinguished between identity information that "belongs to another person," i.e., "a real person," -- the unlawful use of which constitutes "identity theft" as in § 1028A(a)(1) -- and identity information that is "false" or "counterfeit" -- the unlawful use of which constitutes "identity fraud," which is covered by a separate provision. Id. at 1892-93. The Court focused on the question of how the government might prove that a defendant knew that the misused means of identification was real. Id. at 1893. The court noted that the knowledge requirement would generally be easy to prove in the "classic case" of identity theft, "where a defendant has used another person's identification information to get access to that person's bank account" or "when the defendant has gone through someone else's trash to find discarded credit card and bank statements, or pretends to be from the victim's bank and requests personal identifying information." Id.
The Court hypothesized a contrasting scenario, however, where a defendant "knew the papers were not his" but, perhaps, "did not care whether the papers (1) were real papers belonging to another person or (2) were simply counterfeit papers." Id. at 1893. In other words, the Court envisioned three possible factual scenarios under § 1028A(a)(1), only the first of which would result in liability: (1) where a defendant knowingly misused "a real ID belonging to another person"; (2) where a defendant knowingly misused "a fake ID"; and (3) where a defendant did not know one way or another whether the means of identification he or she misused was "real" or merely "counterfeit" because the defendant did not care. Id. at 1889, 1893.
B. Following Flores-Figueroa, Courts Have Vacated Convictions Under § 1028A(a)(1) Where There Was No Direct Evidence That The Defendant Knew That Misused Means of Identification Belonged to a Real Person and Where No Inference of Such Knowledge Could be Drawn From the Record
Following Flores-Figueroa, numerous rulings in courts across the country have hinged upon the adequacy of the government's proof of whether, at the time that a defendant misused a means of identification, he or she knew it was real or counterfeit.*fn9 In particular, because the mental state of "knowledge" may be inferred from circumstantial evidence (see, e.g., United States v. Kallash, 785 F.2d 26, 28 n.2 (2d Cir. 1986) (affirming district court jury instruction that "[k]nowledge may be inferred from acts and . . . inferences that may arise from a combination of acts")), these rulings have often wrestled with the question of whether an inference of such knowledge could be drawn from circumstantial evidence, where no direct evidence of such knowledge exists.
For example, in United States v. Tureseo, 566 F.3d 77, 82-83 (2d Cir. 2009), the defendant had been convicted in a jury trial of aggravated identity theft under § 1028A(a)(1) because he had used another person's birth certificate to make a false claim of U.S. citizenship. The Second Circuit vacated this conviction because the trial court had refused to instruct the jury "that an aggravated identity theft conviction requires a finding that [the defendant] knew that the means of identity he used . . . belonged to another person, i.e., an actual person." Id. at 86. The court concluded that the trial court's error was not harmless because it was questionable whether the defendant, who had never met and could not identify the person to whom the birth certificate belonged, knew that the birth certificate was real. Id.*fn10
Furthermore, in United States v. De La Rosa, 346 F. App'x 468, 471 (11th Cir. 2009), the Eleventh Circuit vacated the defendant's conviction under § 1028A(a)(1). Although the defendant had stipulated that he submitted a passport application that matched the name of a real person, the court found that the evidence at trial showed "at best" that the defendant "had what purported to be an authentic certified copy of a birth certificate" (id. at 470 (emphasis added)) but there was no evidence regarding how he obtained the copy "or whether he knew that it was real and not a forgery" (id. at 470-71). The court found that knowledge that the birth certificate was real could not be inferred because in the circumstances of the case it did not matter to the defendant whether the birth certificate was real or counterfeit. Id. at 471 n.2.
Similarly, in United States v. Gaspar, 344 F. App'x 541, 546-47 (11th Cir. 2009), the Eleventh Circuit found that the evidence at trial was insufficient to prove that the defendant knew that the birth certificate she used in applying for a passport belonged to a real person. The defendant had stipulated before her bench trial that the birth certificate was real and belonged to another person. Id. at 543. The district court found that because the defendant was attempting to obtain a passport, the trial court could infer from the facts in the stipulation that "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." Id. The district court also found, alternatively, that such knowledge could be inferred because the defendant purchased the birth certificate for value and then obtained other documents in order to apply for a passport. Id.
The Eleventh Circuit concluded in Gaspar that the government had not met its burden of proof and vacated the defendant's sentence. Id. at 546. Although the defendant knew that the birth certificate was not hers and stipulated that it was real and that it belonged to a another person, the court concluded that there was no direct evidence that she knew the birth certificate belonged to a real person at the time she applied for a passport. Id. There was no evidence that the defendant ever met or spoke with the actual person whose birth certificate the defendant misused or that the person who sold the defendant the birth certificate mentioned that the birth certificate referred to an actual person. Id. Furthermore, the defendant did not commit "classic" identity theft, in that she did not "search another person's trash, hack into someone's computer account, or pretend to be someone else to obtain personal information." Id. Instead, the defendant bought the birth certificate from a co-worker in circumstances where it would not have mattered to the defendant whether or not the birth certificate was that of a real person:
[A]n 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 [the defendant] might have an incentive to buy an authentic birth certificate, not that she knew whether she actually purchased one.
Id. (emphasis in original).*fn11
C. Other Courts, Following Flores-Figueroa, Have Affirmed Convictions Under § 1028A(a)(1), But Only Where There Was Direct Evidence That The Defendant Knew That Misused Means of Identification Belonged to a Real Person or Where An Inference of Such Knowledge Could be Drawn From the Record
In contrast to the cases subsequent to Flores-Figueroa in which courts have vacated convictions under § 1028A(a)(1), there have also been numerous courts from other jurisdictions that have upheld such convictions where the record reflected that the defendant knew that the misused means of identification belonged to an actual person. In these cases, if there was not direct evidence of such knowledge, the sufficiency of such evidence has hinged on whether an inference of such knowledge could be drawn.
For example, in United States v. Miranda-Lopez, 336 F. App'x 674, 675 (9th Cir. 2009), the Ninth Circuit affirmed the defendant's conviction under § 1028A(a)(1). In that case, the defendant had stipulated that the identification card he misused to enter the United States was "genuine." Id. The card contained a photograph and fingerprint of another individual. Id. "[T]here was no evidence that the card looked doctored or fake, and a Customs and Border Protection Officer testified that the card looked genuine." Id. The court held that it could be reasonably inferred from this evidence that the defendant "knew the identification card he used to enter the United States belonged to a real person other than himself." Id. "In particular, the jury could have relied on the inference that there would have been little point in using a counterfeit identification not in [the defendant's] name." Id.
Similarly, in United States v. Holmes, 595 F.3d 1255, 1258 (11th Cir. 2010), the Eleventh Circuit found that an inference of knowledge that the means of identification of a real person was being misused could be drawn from the defendant's repeated use of the victim's name and social security number to obtain driver's licenses, identification cards, a passport, and a line of credit.
The government presented evidence at trial of the "rigorous verification process" to which the defendant subjected the victim's social security card, including witnesses who testified that government officials would have verified the authenticity of the card each time that the defendant used it to apply for identity information in the victim's name. Id. at 1257. The defendant argued that "the government did not explain how she obtained [the victim's] social security card or birth certificate and did not prove that she obtained the card or birth certificate in circumstances that suggest that she knew that [the victim] is a real person." Id. at 1258. The court concluded, however, that a reasonable jury could have found beyond a reasonable doubt that after the defendant used the card to obtain driver's licenses, identification cards, and a passport, the defendant's willingness to subject the card to repeated government scrutiny established that "she knew, all along, that the social security card belonged to a real person and was not a forgery." Id. Furthermore, the court concluded that "a reasonable jury could have found that [the defendant] would not have sought credit using [the victim's] personal information if [the defendant] were not confident that [the victim] likely had an actual credit history." Id.*fn12
D. Here, the Government Did Not Proffer Direct Evidence That Morgan Knew the Misused Driver's License Belonged to a Real Person and No Inference of Such Knowledge Can Be Drawn From the Circumstantial Evidence Submitted by the Government
In the instant motion, Morgan questions how the government "hope[d] to establish" that he knew A.S.'s driver's license belonged to a "real person" when he "never agreed that [he] knew 'A.S.'," "never met Mr. or Mrs. 'A.S'" and "the real 'A.S.' never gave me an ID." (Reply 2.) Morgan further claims that he never "agreed and admitted to this 'A.S.' authentic PA driver's license," and never agreed that he "knew" of the authenticity of this license. (Id.)*fn13
The government argues that it presented evidence sufficient to establish the "knowledge" element required in Flores-Figueroa. According to the government, such evidence included the seizure from Morgan's properties and vehicles of: (1) "stolen documents containing numerous individuals' identity and credit card information"; (2) "stolen documents" that "included rolls of cash register receipts, credit cards, credit applications, credit reports, checks, check books, Social Security cards, driver's licenses, driver registrations, and Philadelphia police reports"; and (3) "numerous counterfeit credit cards and driver's licenses found at and seized from the defendant's plant, home, and cars." (Response 5-6.) The government argues that such evidence established that Morgan was operating a "plant to make counterfeit credit cards and identification documents." (Id. at 6.) Specific to Count Nine, the government presented evidence of "an authentic Pennsylvania driver's license in the name of 'A.S.' found in the defendant's car, a counterfeit American Express credit card in the same name found at defendant's plant, and evidence of three other counterfeit credit cards in the same name being made at the plant." (Id. at 7.) The government notes that Morgan agreed and admitted to these facts -- which includes not just the general facts but also the facts specific to Count Nine. (Id.)
According to the government "[t]he volume of stolen identity and financial documents, the equipment and the materials for making counterfeit documents, and the volume of counterfeit documents established that the defendant was in the business of stealing real people's identity and financial records and using their information to make the counterfeit documents." (Id. at 8.) The government also claims that the evidence presented "established that the stolen identity of 'A.S.' was of a real person, that the defendant knew it was, and that the defendant used that real identity to make counterfeit credit cards." (Id.)
The problem with the government's argument is that the sheer volume of other apparently authentic means of identification does not establish that Morgan knew that the specific means of identification in question -- A.S.'s driver's license -- was real at the time he misused it. The government has not established that Morgan's identity fraud scheme, whereby he operated a plant that manufactured counterfeit documents, required that Morgan always use authentic means of identification belonging to other people in order to create the counterfeit documents that were his end-product. It may only have been necessary, for Morgan's purposes, that the means of identification upon which he based his counterfeit documents looked authentic.*fn14
Furthermore, Morgan's agreement at the time of his guilty plea that A.S. driver's license was "authentic" is not the same thing as an admission that Morgan knew at the time that he was misusing the driver's license that it was authentic. Morgan did admit at the guilty-plea hearing that he knew that the driver's license in the name of "A.S." that he misused was "authentic."*fn15
By admitting to this evidence -- that is, by admitting that he had misused a driver's license that was authentic -- Morgan acknowledged that he had misused a real means of identification. Morgan's admission does not, however, equate to an admission that he knew at the time he misused the driver's license that it was "authentic." The government did not present evidence of how Morgan obtained the driver's license or evidence that Morgan had met A.S. or even knew who A.S. was. There is thus no direct evidence in the record that Morgan knew the driver's license was authentic when he misused it.*fn16
The facts of Flores-Figueroa are similar to the facts of the instant matter. In FloresFigueroa, as here, the defendant possessed counterfeit documents that contained identity information that belonged to real people. Flores-Figueroa, 129 S.Ct. at 1889 (the counterfeit social security and registration cards that Flores-Figueroa presented to his employer used his own name but "the numbers on both cards were in fact numbers assigned to other people"). However, as in Flores-Figueroa, this is not a "classic" case of identity theft in which the government could have presented evidence that, for example, Morgan sifted through another person's garbage to obtain his or her identity information or "used another person's identification to get access to that person's bank account." Id. at 1893 ("Indeed, the examples of identity theft in the legislative history (dumpster diving, computer hacking, and the like) are all examples of the types of classic identity theft where intent should be relatively easy to prove, and there will be no practical enforcement problem.") Rather, Morgan appears to have taken existing identity information -- a driver's license in the name of A.S. that could have been real or counterfeit -- and used it to create counterfeit documents. Because Morgan's identity fraud scheme to create counterfeit identification documents did not necessarily require the misuse of authentic means of identification -- the scheme might only have required the misuse of authentic looking means of identification -- it cannot be inferred that Morgan knew at the time that he misused A.S.'s driver's license that it was authentic. Instead, as in Flores-Figueroa, Morgan's misuse of the driver's license occurred in circumstances where it might not have mattered to Morgan whether or not the driver's license was that of a real person. Flores-Figueroa, 129 S.Ct. at 1893 ("But perhaps the defendant did not care whether the papers (1) were real papers belonging to another person or (2) were simply counterfeit papers.").
The evidence presented by the government showed "at best" that Morgan had what purported to be an authentic driver's license -- but there was no evidence regarding how Morgan obtained the driver's license or whether he knew that it was real at the time and not itself a forgery. See De La Rosa, 346 F. App'x at 470-72 (although defendant had stipulated that he submitted a passport application that matched the name of a real person, the court found that "at best" the defendant "had what purported to be an authentic certified copy of a birth certificate" because there was no evidence regarding how he obtained the copy "or whether he knew that it was real and not a forgery" ). In sum, the government has not established that there was a factual basis in the record to conclude that Morgan knew or cared at the time that he misused A.S.'s driver's license that it was authentic.*fn17 There is no evidence that at the time Morgan was misusing the driver's license he knew it belonged to a real person.
Although Morgan admitted at his guilty plea hearing that the driver's license he misused was authentic, there is no evidence in the record that at the time Morgan was misusing the driver's license he knew it belonged to a real person. Furthermore, no inference can be drawn from the circumstantial evidence presented by the government that Morgan knew it belonged to a real person or that Morgan's identity fraud scheme required the use of authentic means of identification to create the counterfeit identity information that was the end-product of Morgan's plant. The parties, however, have not provided sufficient briefing concerning what the effect of such a finding might be in this case. Accordingly, I will order the parties to submit supplemental briefing on this issue within 20 days.