Wednesday, July 30, 2008

Immigration / Aggravated Identity Theft / Knowledge that Identification Belongs to Another

United States v. Miranda-Lopez
No. 07-50123 (07/17/2008)
Before Circuit Judges Silverman, Berzon, and Bybee http://www.ca9.uscourts.gov/ca9/newopinions.nsf/6000AD948C9117C0882574890050B569/$file/0750123.pdf?openelement

Miranda-Lopez is a citizen of El Salvador who was previously deported from the United States. He was arrested when crossing the border using another’s resident alien card. He challenged his conviction of aggravated identity theft, claiming that knowledge that the identification belongs to another person is necessary. In addition, he claimed the district court erred in its jury instructions and in denying his Federal Rule of Criminal Procedure 29 motion for a judgment of acquittal made a week after the jury’s verdict. The Ninth Circuit held that the statute is ambiguous as to how far Congress intended for the word "knowingly" to apply in the statute and applied the rule of lenity to find the standard of "plain error" applied to the jury instructions. There was an error, but it was not plain, as the statute was ambiguous and there is a circuit split on the issue. The district court improperly denied his Rule 29 motion on waiver grounds since Rule 29(c) expressly allows such motions within seven days of a jury verdict and does not require that the motion be made prior to jury discharge. Therefore, the Ninth Circuit remanded the case for the district court to reconsider his Rule 29 motion.

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