In U.S. v. Gomez, No. 09-11031 (Aug. 28, 2009), the Court held that it was not harmless error for the trial judge to fail to instruct the jury – contrary to the Supreme Court’s recent holding in Flores-Figueroa v. U.S., 129 S.Ct. 1886 (2009) – that the government had to show that the defendant knew that the means of identification that was the subject of the identity theft charged under 18 U.S.C. §1028A(a)(1) "belonged to another person."
The Court noted defense argument that Gomez used a false identification document in order to get a job, to fulfill "the American dream," and not to "live off of somebody else . . . or steal." The Court noted that the evidence supported this defense; the jury could have found that the government failed to prove that Gomez knew that the identification documents belonged to another person. The error therefore was not harmless. The Court vacated the conviction and remanded for further proceedings.