February 25, 2009
By Adam Liptak and Julia Preston
WASHINGTON — A federal identity-theft law that has become a favorite tool of the government in immigration prosecutions appeared imperiled on Wednesday after the Supreme Court heard arguments about it.
Prosecutors have relied on the law to seek or threaten two-year sentence extensions in immigration cases against people who used fake Social Security numbers that turned out to belong to real people.
“There’s a basic problem here,” said Chief Justice John G. Roberts Jr.. “You get an extra two years if it just so happens that the number you picked out of the air belonged to somebody else.”
Other justices also expressed skepticism about the government’s interpretation of the law.
The argument on Wednesday mostly concerned the meaning of the law, which applies to anyone who, in connection to other crimes, “knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person.”
The question in the case, one the advocates and justices examined from many angles, was how far down that sentence the “knowingly” requirement travels. The government took the position that it stopped somewhere short of the crucial final three words — “of another person.”
Kevin K. Russell, a lawyer for the defendant, said that ordinary usage requires the government to prove that people accused of identity theft under the law knew the numbers they used belonged to someone else.
“If I say that John knowingly used a pair of scissors of his mother,” Mr. Russell said by way of example, “I am saying not simply that John knew he was using something that turned out to be his mother’s scissors or even that John knew he was using scissors which turned out to be his mother’s. I am saying that John knew that the scissors he was using belonged to his mother.”
Mr. Russell’s client, Ignacio Flores-Figueroa, was a Mexican citizen working illegally for a steel plant in Illinois. At first, Mr. Flores-Figueroa used a false name and fake Social Security number, one that did not happen to match that of a real person. Six years later, he told his employer that he wanted to be known by his real name, and he presented forged Social Security and alien registration cards that bore numbers assigned to real people.
When all of this was discovered, Mr. Flores-Figueroa pleaded guilty to several immigration offenses, resulting in a 51-month sentence, but he went to trial to contest charges under the identity-theft law. Although the government presented no evidence that Mr. Flores-Figueroa knew he was using numbers assigned to other people, he was convicted and sentenced to the additional two years mandated by the law.
The United States Court of Appeals for the Eighth Circuit, in St. Louis, affirmed Mr. Flores-Figueroa’s conviction, saying that the government needed to prove only a knowing use of false information, and not that the defendant knew the fake number belonged to a real person.
Mr. Russell said that interpretation of the law can give rise to perverse results, including the possibilities of “two people with identical culpability ending up with substantially different punishments, or people with substantially different culpability ending up with identical punishments.”
Toby J. Heytens, representing the government in the case, Flores-Figueroa v. United States, No. 08-108, said the court should focus on the victims of identity fraud rather than on its perpetrators. The law often makes distinctions, Mr. Heytens said, between equally culpable conduct based on the harm it causes.
The identity-theft law was used last summer by prosecutors in Iowa to bring one of the toughest cases against illegal immigrants in a two-year nationwide crackdown.
After nearly 400 illegal immigrants were arrested in May in a raid at a meatpacking plant in Postville, Iowa, prosecutors brought identity-theft charges against about 270 of them who were found to have used identity information, like Social Security numbers, that corresponded to other real people and were not simply fabrications.
The Iowa criminal prosecutions were an abrupt departure from past immigration enforcement practice, in which illegal work cases had generally been handled under civil law.
Prosecutors used the charges to pressure the immigrants both to plead guilty to lesser charges of document fraud and to agree to summary deportation, waiving their immigration rights. Almost all the immigrants did, and they have served their sentences and been deported.
But a court interpreter who worked in the hearings, Prof. Erik Camayd-Freixas of Florida International University, later broke his professional silence. He testified before Congress that most of the immigrants for whom he translated, many from Guatemala, did not know what a Social Security card was or whether the numbers they used at the Postville plant belonged to other people.
Several justices appeared persuaded on Wednesday that the identity-theft law was at least ambiguous enough that the “rule of lenity” ought to apply. That rule, as Justice Antonin Scalia summarized it from the bench, is that “the tie goes to the defendant.”
Mr. Heytens, representing the government, said the Supreme Court had said as recently as Tuesday, in Hayes v. United States, that “a certain amount of ambiguity doesn’t automatically trigger the rule of lenity.”
Chief Justice John G. Roberts Jr., who was in dissent in the Hayes decision on Tuesday, asked a question. “Is it time,” he said dryly, “to revisit the court’s decision in Hayes?”
Adam Liptak reported from Washington, and Julia Preston from New York.
This article has been revised to reflect the following correction:
Correction: February 27, 2009 An article on Thursday about a Supreme Court argument in an identity-theft case misattributed a comment from one of the justices, repeating an error in the court transcript. It was Chief Justice John G. Roberts Jr. — not Justice John Paul Stevens — who said: “There’s a basic problem here. You get an extra two years if it just so happens that the number you picked out of the air belonged to someone else.”