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United States v. Murillo

March 13, 2008

UNITED STATES OF AMERICA, PLAINTIFF,
v.
ESAUL ACEVEDO MURILLO, DEFENDANT.



The opinion of the court was delivered by: Mark W. Bennett U. S. District Court Judge Northern District OF Iowa

ORDER REGARDING DEFENDANT'S MOTION TO DISMISS COUNT 3

I. INTRODUCTION

In a six-count Indictment handed down September 26, 2007, defendant Esaul Acevedo Murillo was charged with committing the following offenses: "possession of a false document", in violation of 18 U.S.C. § 1546(a) (Counts 1 and 2); "use of an identification document not lawfully issued", in violation of 18 U.S.C. § 1546(b)(1) (Counts 3 and 4); and, "aggravated identity theft" in violation of 18 U.S.C. § 1028A(a)(1) (Counts 5 and 6). More specifically, Count 1 charges that, on or about June 27, 2007, the defendant knowingly possessed a document prescribed by statute or regulation as evidence of authorized stay or employment in the United States, that is, a social security card in the name of "Esaul Acevedo" bearing the last four digits 8944, which document the defendant knew had been forged, counterfeited, falsely made, and otherwise unlawfully obtained. Count 2 charges that, on or about July 15, 2007, the defendant knowingly possessed a document prescribed by statute or regulation as evidence of authorized stay or employment in the United States, that is, a resident alien card in the name of "Esaul Acevedo" bearing the last four digits 5692, which document the defendant knew had been forged, counterfeited, falsely made, and otherwise unlawfully obtained. Count 3 charges that, on or about June 27, 2007, the defendant used an identification document, that is, a social security card in the name of "Esaul Acevedo" bearing the last four digits 8944, for the purpose of satisfying a requirement of the employment verification system, knowing and having reason to know that the document had not been issued lawfully for his use. Count 4 charges that, on or about July 15, 2007, the defendant used an identification document, that is, a resident alien card in the name of "Esaul Acevedo" bearing the last four digits 5692, for the purpose of satisfying a requirement of the employment verification system, knowing and having reason to know that the document had not been issued lawfully for his use.*fn1

This matter comes before the court pursuant to defendant Acevedo-Murillo's Motion To Dismiss Count 3 Of The Indictment (docket no. 29). Defendant AcevedoMurillo moves to dismiss Count 3 of the indictment, pursuant to Federal Rule of Criminal Procedure 12(b)(3)(B), on the ground that Count 3 fails to state a cause of action because a "social security card" does not constitute an "identification document" within the meaning of 18 U.S.C. § 1546(b). The prosecution has filed a timely resistance to defendant Acevedo-Murillo's Motion To Dismiss Count 3 Of The Indictment in which it contends that a social security card may constitute an "identification document" within the meaning of 18 U.S.C. § 1546(b).

II. LEGAL ANALYSIS

A. Standards For A Motion To Dismiss

A defendant may move to dismiss an indictment based on defects in the indictment, lack of jurisdiction, or failure to charge an offense. FED. R. CRIM. P. 12(b)(3)(B). Under Federal Rule of Criminal Procedure 12(b)(3)(B), a defendant may not rely on facts which are extrinsic to the Indictment in arguing that the Indictment does not charge an offense. Rather, a court may only consider the four corners of an indictment to determine whether it states an offense. See United States v. Sharpe, 438 F.3d 1257, 1263 (11th Cir. 2006); United States v. Panarella, 277 F.3d 678, 685 (3d Cir. 2002);United States v. Caicedo, 47 F.3d 370, 371 (9th Cir. 1995); United States v. Hall, 20 F.3d 1084, 1087 (10th Cir.1994); United States v. Cadillac Overall Supply Co., 568 F.2d 1078, 1082 (5th Cir. 1978). Generally, an indictment is deemed sufficient "if it, first contains the elements of the offense charged and fairly informs a defendant of the charge against him, and second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense." Hamling v. United States, 418 U.S. 87, 117 (1974) (citing Hagner v. United States, 285 U.S. 427 (1932) and United States v. Debrow, 346 U.S. 374 (1953)). However, as the Third Circuit Court of Appeals explained in Panarella, an indictment does ...


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