ERIC F. MELGREN, District Judge.
After conviction by a jury on four counts of fraud and identity theft, Defendant Oscar Galindo brings this Motion for Judgment of Acquittal or a New Trial under Rule 29(c) of the Federal Rules of Criminal Procedure (Doc. 49). Defendant alleges that the evidence presented at trial is insufficient to support the jury's guilty verdicts. A court may set aside a guilty verdict if no reasonable jury could have found that the evidence, when viewed in a light most favorable to the prosecution, proved the essential elements of the crime beyond a reasonable doubt. Here, the prosecution presented sufficient circumstantial evidence that a reasonable jury could conclude that Defendant knowingly and intentionally committed identity theft and made false statements to a federal officer. Consequently, the Court denies Defendant's motion.
The Government elicited the following evidence and testimony at trial. A court in Cowley County, Kansas, issued an arrest warrant for Defendant Oscar Galindo in connection with a drug investigation. The warrant was related to a case being investigated by Special Agent Greg Skelton, an employee of the Kansas Bureau of Investigation ("KBI") who was working on assignment with the United States Drug Enforcement Administration ("DEA"). On or about January 7, 2011, Agent Skelton saw Galindo's wife driving Galindo's car in Wichita and stopped the vehicle so he could identify a passenger in the car. When Agent Skelton got out of his unmarked truck, the passenger of Galindo's car also exited and began approaching Agent Skelton. Agent Skelton was wearing street clothes and his KBI badge. He identified himself as a KBI agent and asked the passenger to stop. When Agent Skelton approached the passenger, he recognized Galindo from past dealings. Nonetheless, when Agent Skelton asked for Galindo's identification, Galindo produced from his wallet a State of Oklahoma identification card and a Social Security card bearing the name "Severiano Ruiz." Agent Skelton questioned Galindo as to his true identity, but Galindo insisted he was Severiano Ruiz. After Agent Skelton told Galindo that his wife could be in trouble for harboring a fugitive, Galindo admitted that he was in fact Oscar Galindo. Agent Skelton then executed the Cowley County arrest warrant and took Galindo into custody.
The Government indicted Galindo on four counts: (1) knowingly and intentionally possessing documents indicating he was authorized to be present and employed in the United States that were fraudulently and unlawfully obtained, in violation of 18 U.S.C. § 1546(a); (2) aggravated identity theft in connection with Count 1, in violation of 18 U.S.C. § 1028(a)(1); (3) knowingly, willfully, and intentionally making a materially false statement to a federal agent, in violation of 18 U.S.C. § 1001(a)(2); and (4) aggravated identity theft in connection with Count 3, in violation of 18 U.S.C. § 1028(a)(1). According to trial testimony, when Immigration and Customs Enforcement ("ICE") Agent Jay Ferreira and KBI Agent Chris Bumgarner transferred Galindo to the federal courthouse for arraignment on these charges, Galindo asked Agent Ferreira why he had been arrested. The agent told Galindo that he was arrested was for identity theft. Galindo responded that he knew that was coming, and that there were about 300 other people that were also using that Social Security number.
At trial, an official from the Social Security Administration ("SSA") verified that the Social Security card in Galindo's possession was a valid card listing the correct Social Security number for a Severiano Ruiz, and that nine Social Security cards had been issued to Mr. Ruiz since 1972. Agent Bumgarner testified that he contacted the SSA and learned that four individuals were using Mr. Ruiz's Social Security number to deposit earnings into Social Security. A State of Oklahoma Driver's License Examiner also verified that the identification card Galindo provided to Agent Skelton was a valid card bearing the name and address of a Severiano Ruiz. Upon investigation, Agent Bumgarner learned the contact information on the card was false.
At the close of the Government's case, Galindo made a motion for judgment of acquittal under Fed. R. Crim. P. 29(a). Galindo argued that the Government failed to produce sufficient evidence of Galindo's guilt because (1) the evidence did not show, beyond a reasonable doubt, that the Social Security and state identification cards were evidence of authorized stay or employment in the United States; (2) the Oklahoma identification card was a state card and its possession could not be prosecuted in federal court; (3) Galindo's production of the cards was not a material statement to a federal agency because Agent Skelton already knew Galindo's true identity; (4) Agent Skelton was acting as a state officer rather than federal agent at the time he arrested Galindo; and (5) Counts 2 and 4 were duplicative. Ruling from the bench, the Court denied the Rule 29 motion. The jury then convicted Galindo on all four counts.
Galindo now renews his motion for judgment of acquittal under Rule 29(c) of the Federal Rules of Criminal Procedure. In his motion, Galindo renews all of the arguments he previously made under Rule 29(a). Additionally, Galindo argues that the Government presented insufficient evidence to support his convictions on Counts 1 and 2 because those crimes require specific intent. Galindo also contends that his convictions on Counts 3 and 4 must be set aside because the Government failed to prove beyond a reasonable doubt that Agent Skelton was acting as an agent of the federal government at the time of Galindo's arrest.
When reviewing the sufficiency of evidence to sustain a guilty verdict, the Court "asks whether, `after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'"
Count 1 of the indictment charged that Galindo violated 18 U.S.C. § 1546(a) by "knowingly and intentionally possessed and used documents prescribed by statute and regulation as evidence of authorized stay and employment in the United States knowing them to have been procured by fraud and unlawfully obtained."
The Court will first address Galindo's claim that the Government did not prove beyond a reasonable doubt that a Social Security card or State of Oklahoma identification card are evidence of authorized stay or employment in the United States. As previously stated, 18 U.S.C. § 1546(a) prohibits the use of fraudulent or unlawfully obtained documents that are "prescribed by statute or regulation . . . as evidence of authorized stay or employment in the United States." In this case, Jury Instruction No. 10 set out the elements of § 1546, and included the following advisement: "Federal law provides that a Social Security card or a state-issued identification card is evidence that a person is authorized to be present in the United States or to be employed in the United States."
The Court maintains its position that the issue of whether a given document is evidence of authorized stay and employment in the United States is legal in nature, and thus an advisement to the jury on that element was appropriate. The instruction provided, however, was partially flawed. A state-issued identification card is not a document prescribed by statute as evidence of authorized stay or employment in the United States. Federal employment verification regulations list "[a] driver's license or identification card containing a photograph, issued by a state" as evidence "acceptable to establish identity only."
Nevertheless, the Government was required to prove only that the Social Security card or the state identification card was evidence of authorized stay or employment. The Code of Federal Regulations explicitly lists a Social Security card as an "acceptable document[] to establish employment authorization."
At trial, Galindo argued that the Government had to prove that he both possessed and used the unlawfully-obtained Social Security card because the indictment charged Galindo in the conjunctive. Although the Court accepted Galindo's theory for the purposes of his Rule 29(a) motion, after further research, the Court now acknowledges that "[i]t is hornbook law that a crime denounced in the statute disjunctively may be alleged in an indictment in conjunctive, and thereafter proven in the disjunctive."
Under English common-law, judgments on indictments for multiple offenses were sustained even if one count was flawed.
Applying that rule to the present case, the Court cannot set aside Galindo's conviction on Count 1 if a reasonable jury considering the evidence could find, beyond a reasonable doubt, that Galindo either possessed or used the unlawfully-obtained Social Security card. Because Agent Skelton's uncontroverted testimony established that Galindo had the fraudulent Social Security card in his possession at the time of his arrest, the Government presented sufficient evidence for a reasonable jury to conclude that Galindo possessed or used the Social Security card as prohibited in § 1546(a).
Finally, Galindo contends that the Government did not present sufficient evidence to prove beyond a reasonable doubt that Galindo knew the Social Security card was fraudulently or unlawfully obtained. The Court disagrees. First, as Galindo himself admitted, his name is not Severiano Ruiz. Yet he held a Social Security card bearing that name. And the SSA official testified that the SSA issued Galindo a Social Security number that did not match the number on the Social Security card. A reasonable jury could therefore infer that Galindo knew the Social Security card was not his own.
Galindo alleges that the Government did not meet its burden of proving that Galindo violated 18 U.S.C. § 1001(a)(2) when he told Agent Skelton that his name was Severiano Ruiz and presented the agent with the Social Security and state identification cards. Section 1001(a)(2) makes it a crime to "knowingly and willfully . . . make[] any materially false, fictitious, or fraudulent statement or representation" in connection with "any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States." In this case, the Government had to prove the following elements beyond a reasonable doubt: (1) Galindo made a false or fraudulent statement or representation about his identity, specifically, that he was Severiano Ruiz; (2) Galindo made the statement or representation about his identity knowing that it was false; (3) Galindo made the statement or representation willfully; (4) the statement or representation was made in a matter within the jurisdiction of the federal government; and (5) Galindo's identity was material to the DEA.
It is well-settled that a law enforcement officer may be cross-deputized as both an officer of the state and federal governments.
At Galindo's trial, the jury heard testimony that Agent Skelton first received credentials identifying him as a task force officer with the DEA in 2007. Agent Skelton also testified that some of the DEA's investigations do not meet certain thresholds for federal prosecution, and in that case, the DEA will remain involved with the case while it is prosecuted in the state courts. With respect to Galindo's case, KBI Agent Bumgarner contacted Agent Skelton with information about Galindo because both agents were interested in Galindo. Agent Bumgarner testified that he contacted Agent Skelton due to his position with the DEA and described Agent Skelton as the KBI's local DEA representative. Agent Skelton confirmed that the DEA was interested in Galindo as part of an investigation that the DEA had a large amount of time and money invested in, and that the warrant issued in Cowley County was connected to that DEA investigation. Given Agent Skelton's testimony about the DEA investigation, a reasonable jury could find that Galindo falsely identified himself as Severiano Ruiz "in [a] matter within the jurisdiction of the executive . . . branch of the Government of the United States."
Galindo next argues that the Court must reverse his conviction on Count 3 because the
Government failed to prove beyond a reasonable doubt that Galindo's true identity was material to the DEA's investigation. A statement is material if it has "a natural tendency to influence, or be capable of influencing, the decision of the decisionmaking body to which it was addressed."
Galindo argued at trial that his false statement was not material because Agent Skelton testified that he believed the passenger in Mrs. Galindo's car was Oscar Galindo. Consequently, argued Galindo, falsely representing himself to be Severiano Ruiz did not influence the DEA's investigation. But almost every circuit has rejected this subjective interpretation, instead stating that the test for materiality is objective.
In this case, Agent Skelton was deciding whether to arrest Galindo pursuant to a warrant. As noted, Agent Skelton testified that Galindo was wanted in connection with a DEA investigation. Therefore, the DEA had a vested interested in whether Agent Skelton could lawfully arrest Galindo. And Galindo's identity was undoubtedly material to the decision to arrest Galindo; Agent Skelton had authority to arrest Oscar Galindo, but there was no apparent reason to arrest Severiano Ruiz. Whether or not Galindo's false representation actually influenced Agent Skelton's decision to arrest Galindo, the statement about his identity was capable of influencing that decision. Therefore, a reasonable jury could conclude that Galindo's false statement was material under § 1001(a)(2).
With respect to Count 3, a reasonable jury viewing the evidence in a light most favorable to the jury could find that the Government proved each element of § 1001(a)(2) beyond a reasonable doubt. Therefore, sufficient evidence supports Galindo's conviction on Count 3.
Finally, Galindo argues that the Court must set aside the jury's guilty verdicts on Counts 2 and 4 because the Government failed to prove specific intent and because the charges are multiplicitous of Counts 1 and 3. Aggravated identity theft under 18 U.S.C. § 1028(a)(1) requires proof that—in connection with a predicate felony, as charged in Counts 1 and 3—the defendant: (1) knowingly and intentionally possessed or used an identification document associated with another person; (2) knew the identification document was associated with another person; and (3) possessed or used the identification documents without lawful authority.
First, the Court notes that the federal courts, under the Model Penal Code, have abandoned the historical distinction between "general intent" and "specific intent" crimes, instead focusing on the defendant's state of mind.
Section 1028(a)(1) adds a mandatory two-year term of imprisonment to a defendant's sentence if the defendant, in connection with a predicate felony, "knowingly and without lawful authority produce[d] an identification document, authentication feature, or a false identification document."
In this case, Counts 2 and 4—charging Galindo with aggravated identity theft—are related to, but separate from, the substantive charges in Counts 1 and 3. First, although Counts 1 and 2 both require a showing that the Social Security card was unlawfully obtained, each count contains elements not found in the other. For example, to convict Galindo on Count 1, the jury had to find that the Social Security card was proof of authorized stay or employment in the United States.
Furthermore, although Counts 2 and 4 both charged Galindo with aggravated identity theft under 18 U.S.C. § 1028(a)(1), the two counts are not multiplicitous because they each correspond with a different predicate felony. By charging Galindo in this matter, the Government submitted to the jury a theory that Galindo committed two acts of aggravated identity theft—one in connection with his unlawful possession or use of Severiano Ruiz's Social Security card and a second act in connection with Galindo's false representation to Agent Skelton that Galindo was Severiano Ruiz. Under this theory, the Government had to prove in Count 2 that Galindo violated 18 U.S.C. § 1546(a) as alleged in Count 1, and to convict Galindo on Count 4, the Government had to prove that Galindo violated 18 U.S.C. § 1001(a)(2) as alleged in Count 3. Consequently, because each count of the indictment required the Government to prove an element unique to that charge, none of Galindo's charges were multiplicitous of each other.
For the reasons discussed above, the Court concludes that a reasonable jury viewing the evidence submitted at trial in a light most favorable to the prosecution could find Galindo guilty of the crimes charged. Therefore, the Court holds that sufficient evidence supports Galindo's convictions on each count of the indictment.
