First Circuit Resorts to Lenity Rule, Splitting with Other Circuits Re Application of Scienter Requirement in Identity Theft Statute

Per U.S. v. Godin, 534 F.3d 51 (1st Cir. Jul 18, 2008):

The circuits are divided on the issue of whether the "knowingly" scienter requirement in § 1028A(a)(1) [an identity theft statute] extends to "of another person." The Fourth, Eighth, and Eleventh Circuits have concluded that it does not. United States v. Mendoza-Gonzalez, 520 F.3d 912, 915 (8th Cir.2008); United States v. Hurtado, 508 F.3d 603, 607 (11th Cir.2007) cert. denied, --- U.S. ----, 128 S.Ct. 2903, --- L.Ed.2d ---- (2008); United States v. Montejo, 442 F.3d 213, 214 (4th Cir.), cert. denied, --- U.S. ----, 127 S.Ct. 366, 166 L.Ed.2d 138 (2006). The D.C. Circuit recently concluded, however, that it does. United States v. Villanueva-Sotelo, 515 F.3d 1234, 1236 (D.C.Cir.2008). We review de novo "alleged jury instruction errors involving the interpretation of the elements of a statutory offense." United States v. Soto-Beniquez, 356 F.3d 1, 44-45 (1st Cir.2003).

. . .

Using all methods of statutory construction available to us, we are unable to ascertain whether Congress intended the "knowingly" mens rea requirement to extend to "of another person." The language of § 1028A is ambiguous. The ambiguity cannot be resolved by the statutory structure, the title, or the legislative history. We hold that the rule of lenity applies, and the scienter requirement must stretch to "of another person."