In this post in May, we discussed Flores-Figueroa v. United States, in which the Supreme Court held that a federal identity theft statute requires the government to prove that a criminal defendant knew that the identification that he or she used actually belonged to another person. That decision overruled a prior decision by the Eleventh Circuit Court of Appeals, which sits here in Atlanta and hears appeals in all federal cases originating in Georgia, Florida, and Alabama. Last Friday, in United States v. Gomez, the Eleventh Circuit applied the law in Flores-Figueroa, vacating an identity theft conviction because the trial court failed to instruct the jury on the correct law.
The defendant, Ramon Gomez, is an undocumented alien from the Dominican Republic. Because of his illegal immigration status, he was unable to find a job, so he purchased a Social Security card and birth certificate bearing the name Raul Rodriguez Delgado for $800. In April 2008, he used those documents to apply for a U.S. passport. Because another person using the same identity had obtained a passport in 2001, the State Department investigated and Gomez admitted to his true identity. Gomez was charged and convicted with making a false statement in a passport application, falsely representing himself as a citizen of the United States, and aggravated identity theft.
The Eleventh Circuit recognized that its earlier decision was no longer good law and that the district court erred when it failed to instruct the jury that it had to find that Gomez knew that the birth certificate he used belonged to another actual person. It then determined that the district court’s error was not harmless. The United States had introduced circumstantial evidence that Gomez knew Delgado was an actual person, but Gomez contested that evidence. An agent had tried to locate Delgado, but failed, so the jury may have questioned whether he existed. Because the error was not harmless, the Court vacated Gomez’s conviction for aggravated identity theft.