How Appealing Extra

How Appealing Extra

Friday, February 20, 2009

© 2009 The Daily Journal Corporation.
All rights reserved.

Posted with permission. This file cannot be downloaded from this page. The Daily Journal's definition of reprint and posting permission does not include the downloading, copying by third parties or any other type of transmission of any posted articles.

February 20, 2009

Courts Disagree Over Whether It Matters if a Suspect Knows An ID Belongs to Someone Else

By Lawrence Hurley
Daily Journal Staff Writer

WASHINGTON - Last May, federal agents raided a meatpacking plant in Postville, Iowa, and arrested 389 workers on suspicion of being illegal immigrants. Key to the raid was the agents' focus on whether the workers were using invalid social security or alien registration numbers on their job applications.

Many were using such invalid numbers, and 270 of them were subsequently charged with aggravated identity theft.

The highly publicized raid, conducted by the Department of Homeland Security's Immigration and Customs Enforcement and mirrored in other states, including California, was in many ways made possible by a key ruling two months earlier. The 8th U.S. Circuit Court of Appeals held that in order to prosecute someone for aggravated identity theft, the government did not have to show that the accused knew that the means of identification used belonged to another person. United States v. Mendoza-Gonzales, 520 F.3d 912. The St. Louis, Mo.-based federal court of appeals has jurisdiction over Iowa.

That decision, immigration advocates say, gave the green light to the Bush administration's use of the aggravated identity theft statute as part of its immigration enforcement strategy.

It's a handy tool for prosecutors because they can use the threat of a two-year mandatory sentence as a major bargaining chip when negotiating a plea.

Whether or not the Obama administration will continue with that approach remains to be seen, but the narrow legal question raised in the 8th Circuit case has led to a significant split between the federal appellate courts.

So far, two circuits agree with the 8th Circuit, and three have reached the opposite conclusion, including the 9th Circuit in a July 2008 ruling. United States v. Miranda-Lopez, 2008 DJDAR 11261. The 9th Circuit remanded back to the district judge the case of Salvadoran immigrant Roberto Miranda-Lopez, so he could argue that he didn't know the identity card he presented to police belonged to a real person.

Now, the issue is before the U.S. Supreme Court.

On February 25, the justices will hear oral arguments in an 8th Circuit case that followed in the wake of Mendoza-Gonzales. Flores-Figueroa v. United States, 08-108.

Mexican citizen Ignacio Flores-Figueroa's employer reported him to law enforcement authorities after Flores-Figueroa presented the employer with both a new social security card and a permanent resident card that used a different identity than one he had previously used. Immigration officers found the numbers used on both cards were already in use by others.

Flores-Figueroa was subsequently indicted on two counts of aggravated identity theft in addition to several charges relating to both the forged documents and his illegal entry into the country.

His lawyers, led by Kevin Russell of Howe & Russell in Bethesda, Md., say Flores-Figueroa should not be charged with aggravated identity theft because he didn't know the two identities he used belonged to others.

For immigration advocates, the distinction over intent is key because unlike those who seek to steal an identity for personal gain, most undocumented workers make up social security numbers simply so they can get jobs.

Put simply, immigration lawyers believe the government has inappropriately used the identity theft statute to target immigrants.

"I think this is consistent with all the [Bush] administration's enforcement tactics," said Kristina Campbell, a Los Angeles-based staff attorney with the activist group the Mexican-American Legal Defense and Education Fund. "They never were hesitant to expand laws in unprecedented ways to achieve their goals."

All of those charged in the Postville raid eventually pled guilty to lesser charges than identity theft. Most served five-month prison sentences before being deported.

In the government's latest brief in the case, filed just three days after President Barack Obama took office last month, the incoming administration had little option but to stick to the Bush administration's argument.

Court experts say new administrations rarely change their predecessors' positions in cases that have already been scheduled for argument.

Acting Solicitor General Edwin S. Kneedler, a career lawyer at the Justice Department, wrote in the brief that the identity theft statute, passed by Congress in 2004, is intended primarily to "provide enhanced protection" for people whose identity is stolen.

"The harm a victim suffers when her identity is so misused bears no necessary relationship to the perpetrator's awareness of her existence," Kneedler said.

Identity theft victims rights groups back Kneedler's position.

In an amicus brief in support of the government on behalf of several crime victims organizations, Stephen V. Masterson, of Howrey's Los Angeles office, argues that a ruling contrary to the government's interpretation would have a negative impact on the ability of identity theft victims to get restitution.

Whether or not the defendant intended to steal someone's identity, "the havoc wrecked on the victim's life is the same either way," Masterson said.

He stressed that the position taken by his clients is not intended to "advocate any heavy-handed treatment against immigrants."

So far, the Obama administration has not said how it'll tackle immigration enforcement in the workplace, but Janet Napolitano, the new secretary of the Department of Homeland Security, addressed the issue during her confirmation hearing in mid-January.

She conceded that immigration laws have to be enforced at the border but also at the workplace because of "employers who use the lack of enforcement as a way to exploit the illegal labor market."

While stressing that employers who hire illegal workers will be prosecuted, Napolitano did not mention what sanctions the workers themselves would face.

Some immigration lawyers think this could signal a return to the Clinton administration's approach, in which immigration enforcement at the workplace centered on the government obtaining administrative warrants normally used for inspections of regulated entities.

This allowed agents to investigate company records before deciding whether to take any criminal enforcement action. Importantly, the focus of that approach was on the employer rather than the employee.

Although there's been little policy movement in Washington, immigration lawyers remain optimistic that the administration will end some of the Bush administration's tactics.

"We are definitely hopeful that the Obama administration won't continue with the enforcement only strategy of the Bush administration," said Campbell of the Mexican-American legal group.

Even if that change does occur, Campbell still believes the case before the Supreme Court deserves close scrutiny because individual federal prosecutors around the country may still seek to interpret the law in as broad a way as the Bush administration did.

"I think it's important the court clarifies what it means," Campbell said.

Wednesday, February 11, 2009

© 2009 The Daily Journal Corporation.
All rights reserved.

Posted with permission. This file cannot be downloaded from this page. The Daily Journal's definition of reprint and posting permission does not include the downloading, copying by third parties or any other type of transmission of any posted articles.

February 11, 2009

Kagan Likey to Be Confirmed As Solicitor General

By Lawrence Hurley
Daily Journal Staff Writer

WASHINGTON - With Supreme Court Justice Ruth Bader Ginsburg's future thrown into question recently by unexpected cancer surgery, Tuesday's confirmation hearing for solicitor general nominee Elena Kagan suddenly took on new significance.

Kagan, the highly regarded dean of Harvard Law School, would likely be a leading contender to replace Ginsburg if the ailing justice is forced to leave the bench.

Ginsburg's Future Uncertain

Ginsburg is due to be released from the Memorial Sloan-Kettering Cancer Center in New York within the next week following treatment for pancreatic cancer. The 75-year-old justice is expected to return to the bench in time for the next round of oral arguments, which starts Feb. 23.

Yet uncertainty remains because Ginsburg has not yet revealed her long-term prognosis.

Kagan, who would be the first woman to serve as solicitor general, enjoyed a mostly smooth ride at Tuesday's Senate Judiciary Committee hearing and is likely to be confirmed without any complications. That bodes well for her chances of succeeding Ginsburg if the Supreme Court seat becomes vacant.

Kagan has been mentioned repeatedly as a possible candidate for the high court, especially if the Obama administration is keen to appoint a woman. Obama is likely to make such an appointment if Ginsburg - the only woman currently on the bench - is forced to retire.

Senators Question Kagan's Past

As solicitor general, Kagan would represent the administration before the high court and direct its overall appellate strategy.

Although the hearing was largely low-key, Republican senators grilled the 48-year-old nominee about her positions on several hot button political issues.

Most notably, they questioned Kagan's decision as Harvard Law School dean to join a brief in a lawsuit over military recruitment on law school campuses that ended up before the Supreme Court.

In that case, several universities opposed a law allowing the federal government to withhold funding from schools that barred military recruiters from working on their campuses as a protest of the Defense Department's ban on openly gay and lesbian service members.

The Supreme Court unanimously rejected the challenge in a 2006 decision. Rumsfeld v. FAIR, 126 S. Ct. 1297.

For Republicans, like Sen. Jon Kyl, R-Ariz., Kagan's involvement in the case raised the question of whether she would have energetically defended a statute with which she disagreed if she had been solicitor general at the time.

"I absolutely would have, senator," Kagan responded.

In such circumstances, "there is a clear obligation upon the solicitor general to defend a statute," she added.

Although she has never argued a case before the Supreme Court and has little litigation experience, Kagan is highly respected in the legal world.

Several former solicitor generals from both parties - including Theodore B. Olson, now a partner at Gibson, Dunn & Crutcher, who served under President George W. Bush - have supported the nomination.

In addition to her academic career, Kagan held several positions in the Clinton White House, including associate counsel and deputy director of the Domestic Policy Council.

In 1999, Clinton nominated her to the Washington, D.C., Circuit Court of Appeals but the Republican-led Senate didn't move to confirm her appointment.

Earlier, Kagan clerked for Supreme Court Justice and civil rights legend Thurgood Marshall, whom she once described as "the greatest lawyer of the 20th century."

Perhaps with an eye on her future prospects, Kagan was quick to downplay an article she wrote based on her experiences working as a counsel to the Senate Judiciary Committee in the early 1990s, when she helped shepherd through Ginsburg's nomination.

In the 1995 University of Chicago Law Review article, Kagan wrote that nominees should be more forthcoming about their legal positions.

"I'm not sure if, sitting here now, I would agree with that statement," Kagan said in response to a question from Sen. Orrin Hatch, R-Utah.

Thomas Perrelli, nominee for the third highest-ranking official in the Justice Department, also appeared before the committee Tuesday.

A partner at Jenner & Block in Washington, Perrelli is well known within the entertainment industry for spearheading the Recording Industry Association of America's legal battle against piracy.

He's also expected to easily win confirmation.

Both nominees have personal ties to President Barack Obama.

Kagan worked alongside Obama at the University of Chicago Law School in the 1990s, while Perrelli served with him on the Harvard Law Review.