FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 09-10126

Plaintiff-Appellant, D.C. No.

v.  1:06-cr-00080-1

HAENG HWA LEE, ORDER AND

Defendant-Appellee. OPINION 

Appeal from the United States District Court

for the District of Guam

Dean D. Pregerson, District Judge, Presiding

Argued and Submitted

February 11, 2010—Honolulu, Hawaii

Filed April 28, 2010

Before: Jerome Farris, Dorothy W. Nelson and

Carlos T. Bea, Circuit Judges.

Opinion by Judge D.W. Nelson

6299
COUNSEL

Karon Virginia Johnson, OFFICE OF THE U.S. ATTORNEY, Hagatna, Guam, for the appellant.

Howard Gustaf Trapp, HOWARD TRAPP INC., Hagatna,

Guam, for the appellee.

ORDER

The request to publish the unpublished Memorandum disposition is GRANTED. The Memorandum disposition filed

6300 UNITED STATES v. LEE
February 22, 2010, is redesignated as an authored Opinion by

Judge D. Nelson.

OPINION

D.W. NELSON, Senior Circuit Judge:

Appellee Haeng Hwa Lee (“Lee”), a Korean national who

originally entered Guam under a tourist visa waiver program,

was indicted for Fraud in Connection with an Identification

Document, in violation of 18 U.S.C. §§ 2 and 1028(a)(1), and

Conspiracy, in violation of 18 U.S.C. §§ 2 and 371, after

obtaining a Guam driver’s license using a fictitious Individual

Taxpayer Identification Number (“ITIN”). At Lee’s pretrial

conference, the district court dismissed the indictment against

Lee, holding that a government agent only produces an identification document “without lawful authority” under

§ 1028(a)(1) if that agent was “paid off, so that [the agent

does] not requir[e] the normal documents or know[s] that the

normal documents are forged and . . . issue[s] a driver’s

license anyway.” The government timely appealed. We have

jurisdiction under 28 U.S.C. § 1291, and we reverse.

“We review de novo a district court’s decision to dismiss

an indictment based on an interpretation of a federal statute.”

United States v. Marks, 379 F.3d 1114, 1116 (9th Cir. 2004).

[1] 18 U.S.C. § 2(b) provides that a person who “willfully

causes an act to be done which if directly performed by him

or another would be an offense against the United States, is

punishable as a principal.” In other words, a principal is guilty

of an offense if she used “an innocent pawn to cause an act

to be done which, if performed by the principal, would be

unlawful.” United States v. Valencia, 492 F.2d 1071, 1074

(9th Cir. 1974). The district court, without citing precedent,

concluded that § 2(b) does not apply to prosecutions for identification fraud under § 1028(a)(1). 

UNITED STATES v. LEE 6301
[2] This conclusion was in error. As Lee concedes, it is

irrelevant whether the government agent who actually produced Lee’s license intended to commit identification fraud or

was merely an innocent pawn. See United States v. Rashwan,

328 F.3d 160, 165 (4th Cir. 2003) (“[The defendant] aided

and abetted the production of false identification documents

by providing false information to the DMV with the specific

intent that the agency would then produce a false identification document for him. Because [the defendant] specifically

intended for the DMV to issue a fraudulent identification card

and license, it does not matter whether the clerk who actually

produced the license also had any intent to commit the

crime.”). 

[3] Lee argues that this court should affirm the district

court on the alternate ground that the Guam Department of

Revenue and Taxation does not have the lawful authority to

require that driver’s license applicants present an ITIN or

Social Security Number. This argument fails. Lee is precluded

from challenging the legality of the underlying requirement

that she present an ITIN in order to receive a driver’s license.

See, e.g., Dennis v. United States, 384 U.S. 855, 866 (1966)

(“It is no defense to a charge based upon [fraud] that the statutory scheme sought to be evaded is somehow defective.”). We

therefore reverse the district court’s dismissal of the indictment against Lee and remand for further proceedings.

REVERSED and REMANDED.

6302 UNITED STATES v. LEE