The Supreme Court, in the only new grant on Monday, agreed to spell out the proof that federal prosecutors must offer in order to obtain a more severe punishment for criminal identity theft under a 2004 law.  The granted case is Flores-Figueroa v. U.S. (08-108).  The Justice Department, noting a split in the lower courts on the issue, had supported review.

The issue is whether the law enhancing the sentence for identity theft requries proof that an individual knew that the identity card or number he had used belonged to another, actual person — that is, a knowledge requirement.   The Circuit Courts have split 3-3 on the issue.  The dispute centers on the meaning of the word “knowingly” in the 2004 statute.

The granted case involves Ignacio Carlos Flores-Figueroa, a native of Mexico who had worked at a steel plant in East Moline, Ill.  He was accused of using a phony Social Security card and a phony alien registration card.  The two numbers on those cards had been assigned to someone else; he argued that he used the documents without knowing the numbers were someone else’s.  He was convicted and sentenced to 75 months in prison; 24 of those months represented an enhancement.  The Eighth Circuit Court upheld the sentence, concluding that it was not necessary to show that Flores-Figueroa knew he was using another person’s identifying information.

The Court’s denial of review of another case, testing the constitutionality of the death penalty as it is applied in Georgia, drew a strongly worded statement from Justice John Paul Stevens (available here) arguing that the appeal’s challenge appeared to be supported by the Court’s prior precedents. Stevens, however, did not dissent from the denial, conceding that the inmate had not raised the issues in lower courts.  The case is Walker v . Georgia (08-5385).  Justice Clarence Thomas, in a separate statement supporting the denial of review (available here), argued that Georgia’s Supreme Court had “faithfully and without any error” applied the Court’s death penalty precedents.

Justice Stevens’ argument against the death penalty procedure in Georgia focused on what he called the “utterly perfunctory review” that the state’s Supreme Court has recently given to the issue of whether a death sentence was disproportionate for one individual when compared to sentences in other individuals’ cases.  Stevens said the state court had also failed increasingly to closely examine the history of the individual convicted in a capital case and the circumstances of the case. 

Justice Thomas answered that Stevens’ complaint was based on Stevens’ dissents from prior Supreme Court rulings on which the Georgia Supreme Court has been relying in its death penalty jurisprudence.

In one of its orders Monday, the Court named Barton H. Thompson, Jr., to be a Special Master to prepare recommendations for action by the Court in a case in which Montana is suing Wyoming and North Dakota in a dispute over use of water from the Yellowstone River and tributaries, under a 1950 interstate compact.  Thompson, a former law clerk to the late Chief Justice William H. Rehnquist, is the Robert E. Paradise professor of natural resources law at Stanford University.  The case is Original 137.  On Feb. 19, the Court granted Montana permission to file the case directly in the Supreme Court, bypassing lower courts.  Wyoming has sought to have the case dismissed.  The dismissal request, as well as the remainder of the case, will be reviewed initially by Professor Thompson.

For the second week in a row, the Court examined but took no action on an appeal testing whether it is unconstitutional for an elected state judge to take part in a case involving the financial interests of a major donor to that judge’s election campaign.  The next chance to look at the case of Caperton v. A.T. Massey Coal (08-22) will be at the Oct. 31 Conference of the Justices.

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