                     United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT


                                ________________

                                   No. 07-2660
                                ________________

United States of America,                 *
                                          *
             Appellee,                    *
                                          *       Appeal from the United States
      v.                                  *       District Court for the
                                          *       Southern District of Iowa.
Nicasio Mendoza-Gonzalez,                 *
                                          *
             Appellant.                   *

                                ________________

                          Submitted: January 17, 2008
                              Filed: March 28, 2008
                               ________________

Before BYE, BEAM and GRUENDER, Circuit Judges.
                         ________________

GRUENDER, Circuit Judge.

        Before the district court,1 a jury convicted Nicasio Mendoza-Gonzalez of
aggravated identity theft in violation of 18 U.S.C. § 1028A(a)(1), based on his use of
false identity documents in connection with his employment. Mendoza-Gonzalez now
appeals his conviction, arguing that § 1028A(a)(1) requires the Government to prove
that he knew the identification he used belonged to another actual person and that the

      1
        The Honorable James E. Gritzner, United States District Judge for the Southern
District of Iowa.
Government failed to do so. He also argues that the Government failed to meet its
burden of proving that the identification he used belonged to an actual person. For the
reasons discussed below, we affirm Mendoza-Gonzalez’s conviction.

I.    BACKGROUND

      On July 11, 2006, Mendoza-Gonzalez completed a Form I-9 in connection with
his employment at a Swift & Company (“Swift”) pork processing plant in
Marshalltown, Iowa, in which he represented that he was a “citizen or national of the
United States,” and submitted a photo identification card in the name of Dinicio
Gurrola III to verify his identity. After receiving this information from Mendoza-
Gonzalez, Swift verified that the social security number on the identification matched
the social security number assigned to Gurrola by the Commissioner of Social
Security. On December 12, 2006, officials from Immigration and Customs
Enforcement (“ICE”) conducted a raid at the Swift plant. An ICE officer interviewed
Mendoza-Gonzalez and identified him as a person who used the identity of another
individual to gain employment at Swift.

        In a five-count indictment, Mendoza-Gonzalez was charged with making a false
claim of citizenship in violation of 18 U.S.C. § 1015(e), using false identification
documents in violation of 18 U.S.C. § 1546(b)(1), using fraudulently obtained
immigration documents in violation of 18 U.S.C. § 1546(a), making a false
representation of a social security number in violation of 42 U.S.C. § 408(a)(7)(B),
and aggravated identity theft in violation of 18 U.S.C. § 1028A(a)(1). At the trial, the
Government presented the testimony of two Swift human resource employees who
testified that Mendoza-Gonzalez used the identification of Gurrola to gain
employment at Swift, the ICE agent who initially interviewed Mendoza-Gonzalez
after the raid at the plant, and Sarai Fenton, an investigator with the Inspector General
for Social Security who presented evidence of the issuance of an initial social security



                                          -2-
card to Gurrola as well as requests for duplicate cards, which the Government argues
establishes that Gurrola was an actual person.

       The jury convicted Mendoza-Gonzalez of all charges. On the first four counts
he was sentenced to six months’ concurrent imprisonment. The aggravated identity
theft conviction under § 1028A(a)(1) requires a consecutive sentence of twenty-four
months’ imprisonment, resulting in a total sentence of thirty months’ imprisonment
for Mendoza-Gonzalez. He now appeals his conviction for aggravated identity theft
under § 1028A(a)(1), arguing that the Government failed to meet its burden of proof
because it failed to prove beyond a reasonable doubt that Mendoza-Gonzalez had
actual knowledge that the identification he used belong to an actual person, that
Gurrola was an actual person and that Gurrola was still a living person at the time
Mendoza-Gonzalez fraudulently used his identification.

II.   DISCUSSION

       We review the district court’s statutory interpretation de novo. See United
States v. Kirchoff, 387 F.3d 748, 750 (8th Cir. 2004). In interpreting a statute we first
“determine whether the language at issue has a plain and unambiguous meaning with
regard to the particular dispute in the case.” See Robinson v. Shell Oil Co., 519 U.S.
337, 340 (1997). If so, we apply the plain language of the statute. See Barnhart v.
Sigmon Coal Co., 534 U.S. 438, 450 (2002). Only if the language is ambiguous may
we look beyond the text. See Staples v. United States, 511 U.S. 600, 605 (1994).
However, “[a] mere disagreement among litigants over the meaning of a statute does
not prove ambiguity; it usually means that one of the litigants is simply wrong.” Bank
of Am. Nat’l Trust & Sav. Ass’n v. 203 N. LaSalle St. P’ship, 526 U.S. 434, 461
(1999).




                                          -3-
      The aggravated identity theft statute, 18 U.S.C. § 1028A(a)(1), provides that

      [w]hoever, during and in relation to any felony violation enumerated in
      [§ 1028A(c)], knowingly transfers, possesses, or uses, without lawful
      authority, a means of identification of another person shall, in addition
      to the punishment provided for such felony, be sentenced to a term of
      imprisonment of 2 years.

        Mendoza-Gonzalez argues that the term “knowingly” modifies not only
“transfers, possesses, or uses,” but also the phrase “of another person.” This
interpretation would require the Government to prove that a defendant knew the
means of identification belonged to an actual person. United States v. Villanueva-
Sotelo, 515 F.3d 1234 (D.C. Cir. 2008). The Government, alternatively, argues that
“knowingly” only modifies “transfers, possesses, or uses” which would not require
the Government to prove that the defendant knew the means of identification belonged
to a real person. The Government contends that § 1028A(a)(1) requires only that the
means of identification in fact belonged to a real person, not that the defendant knew
that it did. See United States v. Hurtado, 508 F.3d 603 (11th Cir. 2007) (per curiam),
petition for cert. filed, --- U.S.L.W. --- (U.S. Feb. 13, 2008) (No. 07-9429); United
States v. Montejo, 442 F.3d 213 (4th Cir.), cert. denied, --- U.S. ---, 127 S. Ct. 366
(2006).

       We begin our analysis by determining whether the language of § 1028A(a)(1)
has a plain and unambiguous meaning with regard to the dispute in this case. See
Hurtado, 508 F.3d at 609; Montejo, 442 F.3d at 215. “Knowingly” is an adverb, and
“[g]ood usage requires that the limiting modifier, the adverb ‘knowingly,’ be as close
as possible to the words which it modifies.” Montejo, 442 F.3d at 215. “The fact that
the word ‘knowingly’ – an adverb – is placed before the verbs ‘transfers, possesses,
or uses’ indicates that ‘knowingly’ modifies those verbs, not the later language in the
statute.” Hurtado, 508 F.3d at 609 (citing United States v. Jones, 471 F.3d 535, 539
(4th Cir. 2006) (“[a]dverbs generally modify verbs”)). The last antecedent rule holds

                                         -4-
that qualifying words and phrases usually apply only to the words or phrases
immediately preceding or following them, not to others that are more remote. See 2A
Norman J. Singer & J.D. Shambie Singer, Sutherland Statutory Construction § 47:33
(7th ed. 2007). “While [the last antecedent rule] is not an absolute and can assuredly
be overcome by other indicia of meaning . . . construing a statute in accord with the
rule is quite sensible as a matter of grammar.” Barnhart v. Thomas, 540 U.S. 20, 26
(2003) (internal quotation omitted). Therefore, we find that the plain language of §
1028A(a)(1) limits “knowingly” to modifying “transfers, possesses, or uses” and not
“of another person.” Thus, we conclude that § 1028A(a)(1) is unambiguous and that
the Government was not required to prove that Mendoza-Gonzalez knew that Gurrola
was a real person to prove he violated § 1028A(a)(1). In reaching this conclusion, we
agree with the Fourth and Eleventh Circuits’ determinations that § 1028A(a)(1) is
unambiguous. See Hurtado, 508 F.3d at 609; Montejo, 442 F.3d at 215.

       The fact that Congress placed the adverb “knowingly” directly before the verbs
“transfers, possesses, or uses” indicates that Congress intended “knowingly” to
modify those verbs, and not the later language. See Hurtado, 508 F.3d at 609. If
Congress had wished to extend the knowledge requirement to the entire provision, “it
could have drafted the statute to prohibit the knowing transfer, possession, or use,
without lawful authority, of the means of identification ‘known to belong to another
actual person.’” Id. “It is preposterous to think the same Congress that so plainly and
firmly intended to increase the penalty . . . would then so limit its imposition as to
require the Government to prove that the defendant knows he wrongfully possesses
the identity ‘of another person.’” Villanueva-Sotelo, 515 F.3d at 1255 (Henderson, J.,
dissenting). “Except for the forger himself, proving beyond a reasonable doubt that
each of the thousands, if not millions, of holders of false green cards knows that the
false means of identification he possesses is that ‘of another person’ would place on
the prosecution an often impossible burden.” Id. (internal quotation and alterations
omitted).



                                         -5-
        Further, our own precedent supports our conclusion that a defendant need not
know that the means of identification he transferred, possessed or used belonged to
another actual person. See United States v. Hines, 472 F.3d 1038 (8th Cir.) (per
curiam), cert. denied, --- U.S. ---, 128 S. Ct. 235 (2007). In Hines we explained that
“[t]o support a conviction for aggravated identity theft, the government must prove
that the defendant (1) knowingly used (2) the ‘means of identification’ of another
person (3) without lawful authority (4) during and in relation to” a felony violation
enumerated in § 1028A(c). Id. at 1039. As we identified the elements of the offense,
it is clear that “knowingly” only modifies the verbs and not the later reference to
“means of identification of another person.” While we did not explicitly state that the
Government need not prove that a defendant knew the means of identification was that
of an actual person, we found that providing the name of an actual person to police
satisfied the knowledge requirement. Id. at 1039-40. Although this issue was not
directly addressed in Hines, because Hines clearly knew that the name and social
security number he used belonged to an actual person, the court noted that “[t]he
government satisfied the ‘knowingly’ requirement with Hines’s admission that he
provided another person’s name to police. Id. at 1039. In support of that proposition,
the court cited United States v. Crounsset, 403 F. Supp. 2d 475, 483 (E.D. Va. 2005),
in which the Eastern District of Virginia held that § 1028A(a)(1) “does not require that
the government prove . . . that defendant knew that the identifying information
contained in the fraudulent passport belonged to an actual individual.” Id. at 1040.
Thus, our precedent strongly supports, if not compels, the conclusions we reach.

      We acknowledge that we have reached a different conclusion than the D.C.
Circuit which held that the statutory language of § 1028A(a)(1) was ambiguous and
the court could therefore use the statutory structure, relevant legislative history and
congressional purposes to interpret it. See Villanueva-Sotelo, 515 F.3d at 1243.
Using legislative history, the court stated that the House Judiciary Committee Report
accompanying the Identity Theft Penalty Enhancement Act contained multiple
examples of identity theft which all involved defendants who knew the identification

                                          -6-
they used belonged to another and concluded that Congress intended the increased
sentence provided for in § 1028A(a)(1) to apply only to those defendants who knew
the means of identification belonged to an actual person. Id. at 1243-44. However,
as noted above, we will not look beyond the text of the statute if its plain language is
unambiguous, as we conclude it is here.

      Even if we were to look beyond the text of the statute, we would not agree with
the conclusion reached by the D.C. Circuit. As the dissent in Villanueva-Sotelo points
out, Congress clearly intended identity theft to be read generically. Id. at 1253
(Henderson, J., dissenting). Further, “[a] primary purpose of the statute was to
increase the punishment for a defendant who ‘wrongfully obtains and uses another
person’s personal data,’” which is clearly what occurred here. See id. at 1254
(Henderson, J., dissenting) (quoting H.R. Rep. No. 108-528 at 4). Therefore, even if
we were to look at legislative history and congressional intent, we would still
conclude that § 1028A(a)(1) does not require the Government to prove that the
defendant knew that the means of identity belonged to another actual person.2

       We recognize that the Supreme Court has in some circumstances interpreted the
term “knowingly” in similarly worded criminal statutes to modify terms in addition
to the verbs directly adjacent to “knowingly.” See, e.g., Arthur Andersen LLP v.
United States, 544 U.S. 696 (2005); United States v. X-Citement Video, Inc., 513 U.S.
64 (1994); Liparota v. United States, 471 U.S. 419 (1985). However, in those

      2
        District courts also have split on this issue. Many have concluded that the
statute is unambiguous and does not require the Government to prove the defendant
knew the means of identification was that of an actual person. See, e.g., United States
v. Godin, 489 F. Supp. 2d 118 (D. Me. 2007); United States v. Aguilar-Morales, 2007
WL 2903189 (N.D. Iowa Oct. 2, 2007). However, other district courts have
concluded that the statute is ambiguous and requires the Government to prove the
defendant knew the means of identification was that of an actual person. See, e.g.,
United States v. Salazar-Montero, 520 F. Supp. 2d 1079 (N.D. Iowa 2007); United
States v. Beachem, 399 F. Supp. 2d 1156 (W.D. Wash. 2005).

                                          -7-
instances the Supreme Court was concerned about criminalizing unwitting, innocent
and perhaps even constitutionally protected conduct.3 In X-Citement Video, for
example, the Court held that the term “knowingly” extended not only to the verbs that
followed the term but also to the sexually explicit nature of the materials and the age
of the children depicted because to hold otherwise would have allowed the
Government to hold individuals who innocently received or sent packages not
knowing they contained sexually explicit pictures of minors criminally liable. X-
Citement Video, 513 U.S. at 69.

       Here, there is no such concern that the statute could criminalize otherwise
unwitting, innocent conduct. In fact, a defendant can only be convicted for violating
§ 1028A(a)(1) when he commits the offense “during and in relation to any felony
violation enumerated in [§ 1028A(c)].” Mendoza-Gonzalez used Gurrola’s documents
while committing another felony, making a false representation of a social security
number in violation of 42 U.S.C. § 408(a)(7)(B), which is a felony enumerated in §
1028A(c)(11). Moreover, the use of a means of identification of another person
without lawful authority is not on its face innocent conduct. The conduct required to
obtain a conviction under § 1028A(a)(1) does not compare to innocently receiving a
package not knowing that it contains sexually explicit pictures of minors. See
Hurtado, 508 F.3d at 610. Therefore, the reasons supporting the conclusions in X-
Citement Video do not apply to § 1028A(a)(1).



      3
       We faced a similar situation in United States v. Cacioppo, 460 F.3d 1012, 1017
(8th Cir. 2006). There we addressed whether the term “knowingly” in 18 U.S.C. §
1027 prohibited a defendant from concealing, covering up or failing to disclose facts
she knew she was required to disclose or prohibited a defendant from concealing,
covering up or failing to disclose certain facts, whether or not the defendant knew she
was required to disclose them. Id. We concluded that § 1027 applied only when the
defendant knew she was required to disclose those facts, because to hold otherwise
would be to criminalize possibly innocent conduct where the defendant did not know
she was required to disclose certain facts. Id. at 1018-19.

                                         -8-
      Mendoza-Gonzalez also argues that the Government failed to prove that
Gurrola existed as a real person. We review the sufficiency of the evidence to sustain
a conviction de novo, examining the record in the light most favorable to the verdict.
See United States v. Spears, 454 F.3d 830, 832 (8th Cir. 2006). “We reverse only
when no reasonable jury could find the defendant guilty beyond a reasonable doubt.”
 Id.

       To establish the existence of Dinicio Gurrola III, the Government presented the
testimony of Sarai Fenton, an investigator with the Inspector General for Social
Security. Fenton testified that the Commissioner of Social Security had issued a
social security number to Dinicio Gurrola III and that the application contained the
name, address, citizenship, sex, date of birth, parents’ names and the date of
application. The application bore the signature of Carolyn Gurrola and listed the place
of birth for Dinicio Gurrola III as Bakersfield, California. Fenton further testified that
a duplicate card was applied for in 1985 by Dionicio Gurrola, Jr., using a baptism
certificate as identification, and that another card was applied for in 2001 in the name
of Danny Gurrola, requesting that it be mailed to a prison in Corcoran, California. We
believe this evidence, with all inferences drawn in the light most favorable to the
verdict, was sufficient for a reasonable jury to conclude beyond a reasonable doubt
that Gurrola existed as a real person.4

III. CONCLUSION

      Accordingly, we affirm Mendoza-Gonzalez’s conviction.
                     ______________________________


      4
       Mendoza-Gonzalez also argues that the Government failed to prove that
Gurrola was alive at the time Mendoza-Gonzalez used his identity. Section
1028A(a)(1) imposes no requirement that the Government prove that the person
whose means of identification was used be alive, and Mendoza-Gonzalez cites no
authority in support of this argument. We therefore reject this argument.

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