Defendant was convicted, following a bench trial and denial of her motion for judgment of acquittal, in the United States District Court for the Northern District of Florida, of falsely representing herself as a United States citizen, and aggravated identity theft, and was sentenced to a 33-month prison term. The Eleventh Circuit Court of Appeals affirmed.

Graciela Zuniga-Arteaga appeals her conviction for aggravated identity theft, in violation of 18 U.S.C. § 1028A(a)(1). On appeal, Ms. Zuniga-Arteaga argues that § 1028A(a)(1)

cannot be applied to her conduct because that provision does not cover the theft of a person’s identity when that person is no longer living . . . [W]e affirm.

Ms. Zuniga-Arteaga, a Mexican national, sought admission to the United States in March 1995. She first claimed to have been born in Texas, but offered no documents supporting her claim . . . At some point, Ms. Zuniga-Arteaga returned to the United States, where she was later arrested for an alleged drug offense. When arrested, she said that her name was

“MSG,” and gave a false identification document in the form of a Texas Department of Public Safety Identity Card in the name “MSG.” At her initial appearance, however, Ms. Zuniga-Arteaga admitted that she was the person named in the indictment,

“Zuniga-Arteaga.” In August 2002, Ms. Zuniga-Arteaga was convicted in federal court for conspiracy to possess with intent to distribute more than 1,000 kilograms of marijuana.

Nearly eight years later, on February 18, 2010, Immigration and Customs Enforcement (ICE) encountered Ms. Zuniga-

Arteaga at the federal prison in Tallahassee, Florida, where she was serving her sentence for the 2002 conviction. During that meeting, Ms. Zuniga-Arteaga claimed to be “MSG,” a United States citizen born in Mercedes, Texas. Ms. Zuniga-

Arteaga also gave ICE a date of birth that has since been confirmed to belong to MSG, who had lived and died prior to Ms. Zuniga-Arteaga’s use of the name.

. . . Meanwhile, law enforcement investigated further and found that Ms. Zuniga-Arteaga was not MSG. They located and interviewed MSG’s brother, who told them that MSG was a U.S. citizen who died as a child in 1960. Law enforcement also acquired a certified copy of MSG’s death certificate confirming the brother’s statements. The information on the death certificate matched that repeatedly given by Ms. Zuniga-Arteaga, and shown on the birth certificate produced by her attorney.

. . . Section 1028A(a)(1) states: Whoever, 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 shall, in addition to the punishment provided for such felony, be sentenced to a term of imprisonment of 2 years.

Ms. Zuniga-Arteaga argues that the term “person” in the statute refers only to the living, and does not cover theft of the identity of a person who has died. Thus, she argues that her use of MSG’s identity falls outside the statute’s scope.

Though this issue is one of first impression for this Court, we now follow four circuits in holding that § 1028A(a)(1) punishes theft of the identity of any actual person, regardless of whether that person is still alive.

We begin our analysis by looking to the statute’s plain language. Because Congress did not define the term “person,” we look to its ordinary meaning. The definitions of “person” contained in standard general-purpose dictionaries reflect ambiguity in the common usage of that term. And though some terms that carry ambiguity in popular parlance may possess a specific meaning as a legal term of art. Thus, to determine the meaning of the term “person” here, we must consider the context in which it is used.

We consider the provision as whole “to determine whether the context gives the term a further meaning that would resolve the issue in dispute.” In particular, we examine the phrase “a means of identification of another person,” 18 U.S.C. § 1028A(a)(1), for indications as to whether Congress intended this provision to apply only to the living. Congress defined the term “means of identification” to encompass “any name or number that may be used . . . to identify a specific individual.” 18 U.S.C. § 1028(d) (7). Thus Congress did not limit that term to the identification of individuals still living. Absent any indication to the contrary, Congress’s use of the term “specific individual” in a way that captures both the living and the dead suggests that Congress did not intend to limit the provision. Insofar as the term “means of identification” may also include the identification of the living and dead, it seems natural to read “a means of identification of another person” as simply “a means of identification of anyone other than the defendant.” See Merriam-Webster’s Collegiate Dictionary 48 (10th ed. 2000) (defining “another” as “different or distinct from the one first considered”).

. . . The statute’s purpose supports this interpretation of § 1028A(a)(1). As the Ninth Circuit observed, like the theft of living persons’ identities, “theft of [deceased persons’] identities is not a victimless crime.” Instead, it has very real consequences for the living, such as the beneficiaries of the decedents and businesses who are misled into relying on the stolen identity information. Congress made clear that these risks, as much as concern for the living victims of identity theft, motivated this legislation . . . Indeed, there is good reason to think that Congress would have regarded this form of identity theft as particularly worrisome. “The dead, after all, will not create conflicting paper trails or notice strange activity on their credit reports.” In light of the considerable harm caused by this conduct, and the apparent need for deterrence, Congress almost certainly intended for §

1028A(a)(1) to apply to those who steal the identity of any real person, regardless of whether the person is still living.

Viewed together, the text, structure and purpose of the statute make plain the meaning of § 1028A(a)(1)’s text:

the provision criminalizes the use of a real person’s identity, regardless of whether that person is currently living . . . For these reasons, we affirm Ms. Zuniga-Arteaga’s conviction.

Questions:-

1. Identify the elements of aggravated identity theft under the federal statute.
2. What is the defendant’s primary argument?