                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________                  FILED
                                                         U.S. COURT OF APPEALS
                               No. 09-10724                ELEVENTH CIRCUIT
                                                           SEPTEMBER 14, 2009
                           Non-Argument Calendar
                                                            THOMAS K. KAHN
                         ________________________
                                                                 CLERK

                     D. C. Docket No. 08-20965-CR-DLG

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                    versus

PETRONA GASPAR,

                                                           Defendant-Appellant.


                         ________________________

                 Appeal from the United States District Court
                     for the Southern District of Florida
                       _________________________

                             (September 14, 2009)

Before EDMONDSON, BIRCH and FAY, Circuit Judges.

PER CURIAM:

     Petrona Gaspar (“Gaspar”) appeals her conviction for aggravated identity
theft in violation of 18 U.S.C. § 1028A(a)(1). Gaspar contends that the

government failed to prove beyond a reasonable doubt that she knew the

identification information she used belonged to another person, as required by

Flores-Figueroa v. United States, ___ U.S. ___, ___, 129 S. Ct. 1886, 1894 (2009).

We agree and REVERSE her conviction for aggravated identity theft.

                                  I. BACKGROUND

       A federal grand jury indicted Gaspar in October 2008 on four counts:

(1) willfully and knowingly making a false statement in a passport application, in

violation of 18 U.S.C. § 1542 (Count 1); (2) falsely and willfully representing

herself to be an United States citizen in an attempt to obtain an United States

passport, in violation of 18 U.S.C. § 911 (Count 2); (3) knowingly possessing and

using without lawful authority a means of identification of another person, that of a

birth certificate in the name of “C.T.”, during and in relation to a violation of

§ 1542, in violation of 18 U.S.C. § 1028A(a)(1) (Count 3); and (4) knowingly and

willfully making a false statement in a matter within the jurisdiction of the State

Department, in violation of 18 U.S.C. § 1001(a)(2) (Count 4).

       In January 2009, a bench trial was held solely on Count 3, the charge of

aggravated identity theft.1 The only evidence admitted at trial was a joint


       1
       Gaspar pled guilty to Count 1, and the court dismissed Counts 2 and 4 pursuant to the
government’s motion.

                                              2
stipulation with accompanying exhibits submitted by the government, which

deemed the following facts “true” and “proven beyond a reasonable doubt”:

      1. On October 7, 2008, the defendant, in person, applied for a United
      States Passport at the Miami Passport Agency . . . . At the Miami
      Passport Agency, the defendant submitted an Application for U.S.
      Passport, Form DS-11 (Ex. C), listing her name as [C.T.], her Social
      Security Number as . . . , date of birth as . . ., and executing the
      application in the name of [C.T.].

      2. The defendant’s passport application listed Texas as her place of
      birth and contained the defendant’s photograph.

      3. As proof of identity, the defendant presented a Florida
      Identification Card and Florida Driver’s License which are both in the
      name of [C.T.] (Ex. A), and as proof of United States citizenship, the
      defendant presented a City of Weslaco, Texas birth certificate, in the
      name of [C.T.] (Ex. B). The defendant signed the passport application
      and certified that all the answers given by her on the application were
      true.

      4. At the Miami Passport Agency, the defendant swore an oath before
      a passport acceptance clerk, who is authorized to accept passport
      applications, that all the information on the passport applications (sic)
      was true and correct.

      5. Prior to submitting the passport application, the defendant
      successfully obtained the Florida Driver’s License and Florida
      Identification Card by using the City of Weslaco, Texas birth
      certificate, in the name of [C.T.] (Ex. B).

      6. The defendant’s picture appears on the Florida Identification Card
      and Florida Driver’s License which are both in the name of [C.T.]
      (Ex. A).

      7. On October 7, 2008, Special Agent Ezekiel Grimes from U.S.
      Department of State, Bureau of Diplomatic Security interviewed the

                                          3
      defendant at the Miami Passport Agency. . . . [L]ater in the interview,
      the defendant stated her real name was Petrona Gaspar, born on July
      11, 1983 in Huehuetenango, Guatemala, and that she was attempting
      to obtain a passport to see her father who had passed away in
      Guatemala a few days before she submitted her passport application.
      The defendant stated she had entered the United States in 1999
      through Mexico with the help of a “coyote.” The defendant was given
      an “Advice of Rights” form. She read the form and signed it. . . . She
      stated that she bought the City of Weslaco, Texas birth certificate in
      Tennessee from a co-worker at a chicken packing plant.

      8. [C.T.] is a real person.

      9. The City of Weslaco, Texas birth certificate, in the name of [C.T.]
      (Ex. B), used by the defendant is a means of identification of another
      person.

      10. The defendant did not have authority to use the City of Weslaco,
      Texas birth certificate, in the name of [C.T.] (Ex. B).

      11. The defendant is an alien.

      12. The defendant knowingly made false statements in her passport
      application, with the intent to secure the issuance of the passport, in
      that she stated in the application, among other false statements, that
      her name was [C.T.] and that she was a citizen of the United States,
      when in fact, and as the defendant knew, her name was not [C.T.] and
      she was not a citizen of the United States.

R1-21 at 1-3.

      Following the admission of this evidence, the district court entertained

Gaspar’s motion for a judgment of acquittal. Gaspar acknowledged that our

precedent at that time did not require the government to prove she knew that the

birth certificate belonged to another actual person. See United States v. Hurtado,

                                          4
508 F.3d 603, 610 (11th Cir. 2007) (per curiam), abrogated by Flores-Figueroa v.

United States, ___ U.S. ___, 129 S. Ct. 1886 (2009). Gaspar argued that Hurtado

was wrongly decided, though, and asserted that the government should be required

to prove that she knew C.T. was an actual person. Mindful that the knowledge

issue was under review by the Supreme Court, the judge responded that even if

knowledge were required, he could infer from the facts in the stipulation that

Gaspar knew that C.T. was a real person because “given the fact that [Gaspar] was

attempting to get a passport, she would obviously want to use the documentation of

an actual person because a phony person, a nonexisting person, would create

problems when the passport agency attempted to run background checks, et

cetera.” R2 at 12. After further discussion, the court denied Gaspar’s motion,

finding that the stipulation covered the elements necessary for the government to

prove its case-in-chief under Hurtado. Alternatively, the court found that there was

sufficient evidence to infer that Gaspar was knowledgeable that C.T. was a real

person because Gaspar purchased the birth certificate for value and then obtained

other documents in order to apply for a passport.

      The defense then rested without presenting any evidence. The court

adjudicated Gaspar guilty of aggravated identity theft based on the following

findings of fact:



                                          5
              THE COURT: Very well. Then it would seem that the Court’s
       ruling should remain the same. The defendant has presented no
       evidence. The Court has to look at the evidence in the light most
       favorable to the government. Clearly, with respect to the elements
       that are of no contention, the government meets its burden of proof,
       and the Court would assert even as to the knowledge issue as it relates
       to [C.T.], the Court finds that there is sufficient evidence to find the
       defendant guilty, beyond a reasonable doubt standard even, and
       accordingly the motion is denied. And for the reasons stated, the
       defendant is guilty of the crime charged for the following reason:

              The Court adopts the stipulation as the findings of fact in this
       [case], and accordingly, based upon the stipulation, the Court finds
       that the defendant knowingly, that is, intentionally and not because of
       mistake or accident, possessed and used, without any lawful authority,
       a means of identification of another person, and that other person was
       [C.T.]. And as an aside, . . . the Court finds that there is sufficient
       evidence that the defendant knew that [C.T.] was an actual person.

Id. at 16-17. The court sentenced Gaspar on Count 3 to twenty-four months of

imprisonment and two years of supervised release.2

       On appeal, Gaspar contends that her conviction for aggravated identity theft

must be vacated because the government failed to prove that Gaspar knew that the

means of identification she used belonged to another person. She contends that our

decision to the contrary in Hurtado was wrongly decided, as evidenced by the

Supreme Court’s recent decision in Flores-Figueroa.3

       2
        With respect to Gaspar’s conviction on Count 1, the court imposed a consecutive
sentence of one day of imprisonment and a concurrent term of two years of supervised release.
       3
         Gaspar also argues for the first time in her reply brief that her conviction must be
vacated because she never waived her right to a jury trial as to whether she knew the means of
identification she used belonged to another person. Because she did not raise this issue in her

                                                6
                                      II. DISCUSSION

       We review de novo the sufficiency of the evidence to uphold a conviction.

See United States v. Tampas, 493 F.3d 1291, 1297 (11th Cir. 2007). “We will not

reverse a conviction for insufficient evidence in a non-jury trial unless, upon

reviewing the evidence in the light most favorable to the government, no

reasonable trier of fact could find guilt beyond a reasonable doubt.” United States

v. Schaltenbrand, 930 F.2d 1554, 1560 (11th Cir. 1991). We review a district

court’s bench trial findings of fact for clear error. See O’Ferrell v. United States,

253 F.3d 1257, 1265 (11th Cir. 2001).

       The aggravated identity theft provision requires an enhanced sentence of two

years of imprisonment if a person “during and in relation to any felony violation

enumerated in subsection (c), knowingly transfers, possesses, or uses, without

lawful authority, a means of identification of another person . . . .” 18 U.S.C.

§ 1028A(a)(1) (emphasis added). At the time of Gaspar’s conviction, our sister

circuits were divided as to whether the knowledge requirement applied to “of

another person.” Compare United States v. Godin, 534 F.3d 51, 61 (1st Cir. 2008)

(knowledge requirement applies to “of another person”); United States v. Miranda-

Lopez, 532 F.3d 1034, 1040 (9th Cir. 2008) (same); United States v. Villanueva-


initial brief, we will not address it. See United States v. Valladares, 544 F.3d 1257, 1269 n.2
(11th Cir. 2008) (per curiam).

                                                 7
Sotelo, 515 F.3d 1234, 1246 (D.C. 2008), cert. denied, ___ U.S. ___, 129 S. Ct.

2377 (2009) (same), with United States v. Mendoza -Gonzalez, 520 F.3d 912, 915

(8th Cir. 2008), vacated, ___ U.S. ___, 129 S. Ct. 2377 (2009) (knowledge

requirement does not apply to “of another person”); United States v. Montejo, 442

F.3d 213, 215 (4th Cir. 2006) (same). We had agreed with those circuits

concluding that the government need not prove that the defendant knew the

identification used belonged to another actual person. See Hurtado, 508 F.3d at

610.

       After the initial briefs were filed in this appeal, the Supreme Court resolved

the circuit split in Flores-Figueroa. The Court held that “§ 1028A(a)(1) requires

the Government to show that the defendant knew that the means of identification at

issue belonged to another person.” Flores-Figueroa, ___ U.S. at ___, 129 S. Ct. at

1894. The defendant in Flores-Figueroa had worked for six years under a false

name, using a Social Security number and alien registration number that did not

belong to a real person. See id. at ___, 129 S. Ct. at 1889. He then presented his

employer with new counterfeit Social Security and alien registration cards using

his real name but with numbers that were assigned to actual people. See id. at ___,

129 S. Ct. at 1889. The Eighth Circuit Court of Appeals affirmed his conviction

based on the district court’s determination that the government need not prove that



                                           8
the defendant knew the numbers on the counterfeit documents had been allocated

to other people. See id. at ___, 129 S. Ct. at 1889. The United States Supreme

Court reversed, concluding that the word “knowingly” applied to all the

subsequently listed elements of the crime, including the phrase “of another

person.” See id. at ___, 129 S. Ct. at 1890, 1894.

      The Court noted that the examples of identity theft given by Congress in its

legislative history all involved situations “where the offender would know that

what he has taken identifies a different real person.” See id. at ___, 129 S. Ct. at

1893. These instances include computer hacking, stealing paperwork likely to

contain personal information, and dumpster diving (rifling through another

person’s trash for credit card and bank statements). See id. at ___, 129 S. Ct. at

1893. Intent would be fairly easy to prove in such classic cases of identity theft.

See id. at ___, 129 S. Ct. at 1893. However, the Court acknowledged that proof of

knowledge would be more difficult in many other circumstances. See id. at ___,

129 S. Ct. at 1893. For example, an alien who uses a false identification document

to obtain employment may not care whether the document belongs to a real person

or is simply a counterfeit paper. See id. at ___, 129 S. Ct. at 1893. In that

circumstance, the government may be able to prove the defendant knew the

document was not his, but would have difficulty in proving beyond a reasonable



                                           9
doubt that the defendant knew the document actually belonged to another real

person. See id. at ___, 129 S. Ct. at 1893. Nevertheless, the Court concluded that

any “concerns about practical enforceability are insufficient to outweigh the clarity

of the text.” Id. at ___, 129 S. Ct. at 1893.

      “It is the law of this Circuit that a subsequent panel is not obligated to follow

a prior panel’s decision where an intervening Supreme Court decision establishes

that the prior panel decision is wrong.” United States v. Hogan, 986 F.2d 1364,

1369 (11th Cir. 1993). The intervening Supreme Court decision must have

actually overruled or conflicted with the prior panel decision in order to warrant a

departure. See United States v. Marte, 356 F.3d 1336, 1344 (11th Cir. 2004).

Here, the Supreme Court’s decision in Flores-Figueroa directly conflicts with our

holding in Hurtado that the government need not prove the defendant knew that the

identification means he used belonged to another person. See Flores-Figueroa, ___

U.S. at ___, 129 S. Ct. at 1894; Hurtado, 508 F.3d at 610. In accordance with the

Supreme Court’s ruling, we may affirm Gaspar’s conviction for aggravated

identity theft only if the government proved beyond a reasonable doubt that Gaspar

knew the birth certificate she used in applying for a passport in fact belonged to

another person. See Flores-Figueroa, ___ U.S. at ___, 129 S. Ct. at 1894.

      Our review of the evidence reveals that the government did not meet its



                                           10
burden of proof. The hypothetical envisioned by the Supreme Court in Flores-

Figueroa, that of an alien using another person’s document to procure employment,

is strikingly analogous to the situation here, that of an alien using another person’s

document to procure a passport. As in the hypothetical, the government can prove

that the defendant knew the document was not his. Here, there is no dispute that

Gaspar knew she was using a birth certificate that was not hers. The government

stumbles both in the hypothetical and in this case, however, in trying to prove that

the defendant knew the document belonged to a real person.

      As the government implicitly concedes, there is no direct evidence that

Gaspar knew the birth certificate belonged to an actual person at the time she

applied for the passport. Although it was stipulated that the birth certificate was in

fact a means of identification of a real person (C.T.), it was not stipulated that

Gaspar knew that C.T. existed when she used the document to obtain a passport.

The government presumably did not include this element in the joint stipulation

given that Hurtado did not require it. Consequently, there is no evidence that

Gaspar ever met or spoke with C.T. (who was born in Texas), or that the co-worker

who sold the birth certificate to Gaspar in Tennessee mentioned that C.T. was a

real person.

      Nor is intent readily proven from the circumstances of the case given that



                                           11
Gaspar did not commit classic identity theft. She did not search another person’s

trash, hack into someone’s computer account, or pretend to be someone else to

obtain personal information. Rather, Gaspar bought a document from a co-worker,

and later agreed, after the fact, that the document identified a real person.

      Given this dearth of evidence, we conclude that the district court’s finding

that Gaspar knew that C.T. was a real person is clearly erroneous. That finding

was based on the court’s inference that Gaspar would “obviously want to use the

documentation of an actual person” in order to pass a background check run by the

passport agency. R2 at 12. The court’s inference is refuted by the factual scenario

in Flores-Figueroa, where the defendant remained employed for six years using a

Social Security number and counterfeit alien registration card that did not belong

to a real person. See Flores-Figueroa, ___ U.S. at ___, 129 S. Ct. at 1889. As that

case demonstrates, an individual can successfully use documents that do not belong

to a real person in order to secure benefits such as employment, even though

employers also presumably run background checks. In any event, even if the

district court’s inference was valid, at most it proves that Gaspar might have an

incentive to buy an authentic birth certificate, not that she knew whether she

actually purchased one.

      We therefore conclude that the evidence, even when viewed in the light most



                                           12
favorable to the government, is insufficient for a rational trier of fact to find

beyond a reasonable doubt that Gaspar knew that the birth certificate belonged to

another person when she used it for her passport application. Accordingly,

Gaspar’s conviction for aggravated identity theft cannot stand. See id. at ___, 129

S. Ct. at 1889.

                                 III. CONCLUSION

      For the foregoing reasons, we REVERSE Gaspar’s conviction on count three

for aggravated identity theft under § 1028A(a)(1), REMAND for entry of acquittal,

and VACATE the sentence imposed as to that count.

      REVERSED and REMANDED.




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