In a development of heightened relevance because of recent immigration raids and prosecutions, several courts of appeals have interpreted the aggravated identity theft statute, 18 U.S.C. 1028A. Subsection (a)(1) of the statute says "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 for such felony, be sentenced to a term of imprisonment of 2 years." The courts are divided about whether the knowledge requirement extends to the "of another person" element of the offense. In other words, does the government have to prove that a defendant knew that the means of identification he or she transferred, possessed or used belonged to another actual person or is it enough for the defendant to know that he or she used a false document? Section 1028A has come under closer scrutiny over the past few months following the ICE raid in Postville, Iowa, where hundreds of workers were charged with aggravated identify theft. Currently, six circuits have issued precedent decisions addressing the knowledge requirement. At least two other courts currently are considering the issue. Also, there are at least two pending petitions for certiorari asking the Supreme Court to consider the issue, see United States v. Mendoza-Gonzalez (cited below) and United States v. Flores-Figueroa, No. 07-2871 (8th Cir. April 23, 2008) petition for cert. filed (U.S. July 22, 2008) (08-108).



Decisions Requiring Knowledge

United States v. Godin, 534 F.3d 51, 2008 U.S. App. LEXIS 15301 (1st Cir. July 18, 2008); United States v. Miranda-Lopez, 532 F.3d 1034, 2008 U.S. App. LEXIS 15200 (9th Cir. July 17, 2008); United States v. Villanueva-Stelo, 515 F.3d 1234 (D.C. Cir. 2008)



Decisions Not Requiring Knowledge

United States v. Mendoza-Gonzalez, 520 F.3d 912 (8th Cir. 2008), petition for cert. filed (U.S. July 15, 2008) (08-5316); United States v. Hurtado, 508 F.3d 603 (11th Cir. 2007); United States v. Montejo, 442 F.3d 213 (4th Cir. 2006)



Pending Circuit Court Cases

United States v. Chavez-Quintana, 07-3323 (10th Cir. filed Nov. 6, 2007) (argument scheduled for Sept. 23, 2008); United States v. Tureseo, 07-2933 (2d Cir. filed July 9, 2007) (argued June 23, 2008)