IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

vs. CASE NO. 4:10-CR-79-SPM/WCS-1

GRACIELA ZUNIGA-ARTEAGA,

Defendant.

_______________________________/

BENCH TRIAL VERDICT

AND ORDER DENYING MOTION FOR JUDGMENT OF ACQUITTAL

THIS CAUSE comes before the Court upon a criminal bench trial that was held

in Tallahassee on December 20, 2010. The Defendant was charged in a two-count

indictment with (Count One) knowingly and willfully falsely representing herself to be a

citizen of the United States, and (Count Two) aggravated identity theft, by knowingly

possessing and using the name and date of birth of another person during and in

relation to the felony charged in Count One. At the bench trial, the Parties submitted a

Stipulation of Facts (doc. 26), without need of further proof. The only issue presented at

the bench trial was the Defendant’s Motion for Judgment of Acquittal (doc. 21) with

regard to Count Two of the Indictment, in which the Defendant argues that the

aggravated identity theft statute, 18 U.S.C. § 1028A, is not violated where a defendant

uses the means of identification of a deceased person. Upon due consideration of the

stipulation of facts, and the arguments raised in support of and opposition to (docs. 20,

22) the Defendant’s Motion for Judgment of Acquittal, the Court finds the Defendant

guilty on both counts, and the Motion for Judgment of Acquittal is denied.
FACTUAL BACKGROUND

The Stipulation of Facts describes that the Defendant, an alien without legal

status in the United States, was denied admission into the United States in 1995, after

initially claiming to have been born in Texas and providing a name and date of birth that

did not exist. She ultimately admitted that she was born in Mexico and completed an I275 Notice of Visa Cancellation Form.

In 2002, the Defendant was convicted in the Southern District of Texas of

Conspiracy to Possess with Intent to Distribute More than 1,000 Kilograms of

Marijuana. Upon her arrest, she submitted a false identification card in the name of

“MSG,” a deceased United States citizen, and stated that her name was “MSG.” At the

initial appearance, she admitted that she was the same person named in the

indictment, Zuniga-Arteaga.

On or about February 18, 2010, the Defendant, an inmate at the Federal

Correctional Institution in Tallahassee, Florida, told Immigration and Customs

Enforcement that she was “MSG,” a United States Citizen born in Mercedes, Texas,

and provided the date of birth of the deceased victim. On or about July 27, 2010, the

Defendant made the same claims, yet admitted to signing the I-275 form from 1995

when it was presented to her. On or about August 3, 2010, the Defendant again

claimed that she was United States citizen “MSG,” and stated that she was in the

process of obtaining her birth certificate from her attorney.

On September 21, 2010, the Defendant’s attorney presented a valid birth

certificate in the name of “MSG” to Immigration and Customs Enforcement on the

Defendant’s behalf. Law enforcement interviewed the brother of the actual “MSG,” who

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confirmed that “MSG” died as a child in 1960. A certified copy of the “MSG’s” death

certificate was obtained by law enforcement, and the name and date of birth on the

victim’s death certificate matched the name and date of birth provided by the Defendant

and listed on the birth certificate.

On October 1, 2010, the Defendant again claimed that the birth certificate with

the name “MSG” was her own and that she was a citizen of the United States. She also

signed a sworn statement. 

MOTION FOR JUDGMENT OF ACQUITTAL

18 U.S.C. § 1028A(a)(1) makes it a federal crime to use “a means of

identification of another person” during and in relation to several enumerated felonies,

including falsely and willfully representing oneself to be a citizen of the United States,

with which the Defendant was charged under Count One of the Indictment. The

punishment for aggravated identity theft is two years imprisonment in addition to the

punishment imposed for the underlying felony. Defendant asserts that she is entitled to

judgment of acquittal with regard to Count Two because a decedent is not “another

person” for purposes of 18 U.S.C. § 1028A.

This Court is in agreement with all federal courts having addressed this issue

that the aggravated identity theft statute criminalizes the use of a living or deceased

person’s identification. See United States v. Jimenez, 507 F.3d 13 (1st Cir. 2007);

United States v. Kowal, 527 F.3d. 741 (8th Cir. 2008); United States v. Maciel-Alcala,

612 F.3d 1092 (9th Cir. 2010); United States v. LaFaive, 618 F.3d 613 (7th Cir. 2010).

First, in plain and ordinary English, the term “person” does not necessarily exclude the

deceased, although such an exclusion may be implied in the context of how the term

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“person” is used. In the context of 18 U.S.C. § 1028A, there is no such limiting or

restrictive implication. Additionally, the broad interpretation of the word “person,” that is,

encompassing both the living and the dead within its definition, is consistent with the

legislative intent of the aggravated identity theft statute, as the contrary interpretation

would render misuse of the identities of others, the problem facing Congress in

enacting the statute, not actionable, so long as the identities so used belonged to the

dead. Particularly in the context of falsely representing oneself to be a United States

citizen, the use of an identity of a deceased person is likely to be preferable to the use

of an identity of a living person, merely because a deceased victim cannot discover or

report the misappropriation of her identity. It is inconsistent with the purpose of the

aggravated identity theft statute to insist that Congress intended to shield such conduct

from the ambit of the law. Lastly, because the Court finds that the aggravated identity

theft statute is not ambiguous and that the word “person” naturally includes the

deceased as well as the living, the rule of lenity is inapplicable. Accordingly, for the

foregoing reasons, the Motion for Judgment of Acquittal will be denied.

CONCLUSION

After reviewing all of the evidence presented at the bench trial, including the

stipulation of facts, and having considered all of the arguments in support of and

opposition to the Defendant’s Motion for Judgment of Acquittal, it is hereby 

ORDERED AND ADJUDGED as follows:

1. The Motion for Judgment of Acquittal (doc. 21) is DENIED.

2. The Court finds beyond a reasonable doubt that the Defendant, Graciela

Zuniga-Arteaga, is guilty of the offense of knowingly and willfully falsely

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representing herself to be a citizen of the United States, as charged in

Count One of the indictment, and guilty of the offense of aggravated

identity theft, as charged in Count Two of the indictment.

3. All parties shall appear before this Court for sentencing as directed.

DONE AND ORDERED this twenty-ninth day of December, 2010.

s/ Stephan P. Mickle

Stephan P. Mickle

Chief United States District Judge

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