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Identity Theft

 Introduction
Identity theft is one of the fastest growing crimes in the world. The news has been filled with stories about how personal data have been compromised from certain personal information aggregators such as ChoicePoint and LexisNexis. See, e.g., Peter Lewis, Taking a Bite Out of Identity Theft; Corporations are mishandling your personal data, but the real threat may be closer to home. Here's how a simple paper shredder can help, FORTUNE May 2, 2005, at 36; David Colker & Rong-Gong Lin II, Law May Help Freeze ID Theft; A 2003 statute allows Californians to block access to their credit reports. Few knew about it until the ChoicePoint Scandal, L.A. TIMES, Apr. 23, 2005 at C1; Heather Timmons, Security Breach at LexisNexis Now Appears Larger, N.Y. TIMES, Apr. 12, at C7. The United States takes the compromising of such data very seriously. On October 30, 1998, Congress enacted the Identity Theft and Assumption Deterrence Act of 1998, Pub. L. No. 105-318 [hereinafter ITADA].

The ITADA amended the fraud chapter of title 18 of the United States Code to create a new crime prohibiting the unlawful use of personal identifying information, including, but not limited to, names, social security numbers, and credit card numbers. Identity fraud involves the misappropriation of another person's personal identifying information. Criminals use this information to establish credit in their name, run up debts on another person's account, or take over existing financial accounts. The ITADA directed the Sentencing Commission to "review and amend the Federal sentencing guidelines and the policy statements of the Commission, as appropriate, to provide an appropriate penalty for each offense under section 1028 of title 18, United States Code, as amended by this Act." Identity Theft and Assumption Deterrence Act of 1998, Pub. L. No. 105-318 § 4(a), 112 Stat. 3007 (codified in 28 U.S.C. § 994 note). United States v. Williams, 355 F.3d 893, 898 (6th Cir. 2003).

There are both domestic and transnational implications of identity theft. The perpetrators of the most recent ChoicePoint breach, as well as a similar breach in 2000, were from Nigeria. See David Colker & Joseph Menn, ChoicePoint Had Earlier Data Link; Scammers accessed financial information five years ago in a scheme similar to a recent case, L.A. TIMES , Mar. 2, 2005, at C1. Illegal immigrants often have false identities as they try to enter the country, and an Egyptian-born American citizen pleaded guilty to selling fake international driver's licenses to two of the September 11 hijackers. See Threats and Responses: Document Fraud; Guilty Plea Expected by Seller of Fake ID's to 9/11 Hijackers, N.Y. TIMES, Feb. 4, 2003, at A13.

Congress has criminalized identity theft and the use of a false identity in a number of ways. It has criminalized the theft of mail, the unauthorized access of computer storage, the theft of credit cards and PINs, the use of a false identity, and even the use of a false identity in committing a felony. What follows is a synopsis of the crime of identity theft in the United States Code and its application in United States courts.

18 U.S.C. § 1708 (2007).
Theft of Mail
One common way identity theft occurs is through the theft of mail. 18 U.S.C. § 1708 covers this scenario.
It is a federal crime, punishable by a fine, imprisonment for not more than five years, or both, to steal someone's mail. This means it is a crime to steal, take, destroy, embezzle, or fraudulently obtain-or attempt to do any of the previous-mail from the post office, the postal delivery person, a mailbox, or any other mail receptacle. It is also a crime to steal, take, destroy, embezzle, or fraudulently obtain-or attempt to do any of the previous-mail which has been left for collection at a collection box or other authorized mail depository. Finally, it is a crime to buy, receive, conceal, or unlawfully possess mail which has been stolen, knowing it to be stolen.

Possession of Stolen Mail
There are two interpretations of the elements of a possession of stolen mail charge. The first is as follows:
That the items in question were stolen from the mails;
That the defendant willfully possessed those items contrary to law; and
That while possessing the items, the defendant knew they were stolen from the mail. United States v. Patterson, 664 F.2d 1346, 1347 (9th Cir. 1982); United States v. Matzker, 473 F.2d 408, 409 (8th Cir. 1973).
However, other courts removed the requirement that the defendant knows the item was stolen from the mails. United States v. Gardner, 454 F.2d 534, 535 (9th Cir. 1972). The matter seems settled by the United States Supreme Court. All that is required is the knowledge that the property was stolen, not necessarily the knowledge that it was stolen from the mail. Barnes v. United States, 412 U.S. 837, 847 & n. 14 (1973) (citing H.R. Rep. No. 734, 76th Cong., 1st Sess., 1 (1939)). Why subsequent courts continue to require knowledge the material was stolen from the mails is unclear, but suffice to say, the Supreme Court has ruled on the issue.

18 U.S.C. § 1029 (2007).
Another, increasingly common method of stealing identities is through the theft of credit card numbers or Personal Identification Numbers [hereinafter PINs]. This method is covered by 18 U.S.C. § 1029, which uses the unfortunate terminology of "access devices."

The Crime
It is a crime to do any of the following ten offenses listed in section 1029(a):
knowingly, and with intent to defraud, produce, use, or traffic in one or more counterfeit access devices;

knowingly, and with intent to defraud, traffic in or use one or more unauthorized access devises during any one-year period, and, by doing so, obtain anything of value aggregating $ 1,000 or more during that period;
knowingly, and with intent to defraud, possess fifteen or more devices which are counterfeit or unauthorized access devices;
knowingly, and with intent to defraud, produce, traffic in, have control or custody of, or possess device-making equipment;
knowingly, and with intent to defraud, effect transactions, with 1 or more access devices issued to another person or persons, to receive payment or any other thing of value during any 1-year period the aggregate value of which is equal to or greater than $ 1,000;
without the authorization of the issuer of the access device, knowingly, and with intent to defraud, solicit a person for the purpose of either: offering an access device, or selling information regarding or an application to obtain an access device;
knowingly, and with intent to defraud, use, produce, traffic in, have control or custody of, or possess a telecommunications instrument that has been modified or altered to obtain unauthorized use of telecommunications services;
knowingly and with intent to defraud use, produce, traffic in, have control or custody of, or possess a scanning receiver;
knowingly use, produce, traffic in, have control or custody of, or possess hardware or software, knowing it has been configured to insert or modify telecommunication identifying information associated with or contained in a telecommunications instrument so that such instrument may be used to obtain telecommunications service without authorization; or
without the authorization of the credit card system member or its agent, knowingly, and with intent to defraud, cause or arrange for another person to present to the member or its agent, for payment, 1 or more evidences or records of transactions made by an access device.

The Punishment
If the offense affects interstate or foreign commerce, a person convicted of violating section 1029(a), will be punished in the following manner.
If the conviction is for a first-time offense under section 1029, and the defendant violated paragraphs 1029(1), (2), (3), (6), (7), or (10)., the punishment will be a fine, imprisonment for not more than 10 years, or both.
If the conviction is for a first-time offense and the defendant violated paragraphs 1029(4), (5), (8), or (9), the punishment will be a fine, imprisonment for not more than 15 years, or both;
If the conviction is for a subsequent offense under section 1029, the punishment will be a fine, imprisonment for not more than 20 years, or both;

The defendant will also be forced to forfeit any personal property used or intended to be used to commit the offense.
An attempt to commit any of the above offenses will be punished in the same manner as if the offense had been completed. Furthermore, a person who is a party to a conspiracy to commit any of the above offenses, that person will be fined up to the maximum allowed, imprisoned for not longer than one-half the maximum period allowed, or both.

Definitions
As used in this section--
Access device: any card, plate, code, account number, electronic serial number, mobile identification number, personal identification number, or other telecommunications service, equipment, or instrument identifier, or other means of account access that can be used, alone or in conjunction with another access device, to obtain money, goods, services, or any other thing of value, or that can be used to initiate a transfer of funds (other than a transfer originated solely by paper instrument);
Counterfeit access device: any access device that is counterfeit, fictitious, altered, or forged, or an identifiable component of an access device or a counterfeit access device;
Unauthorized access device: any access device that is lost, stolen, expired, revoked, canceled, or obtained with intent to defraud;
Produce: includes design, alter, authenticate, duplicate, or assemble;
Traffic: transfer, or otherwise dispose of, to another, or obtain control of with intent to transfer or dispose of;
Device-making equipment: any equipment, mechanism, or impression designed or primarily used for making an access device or a counterfeit access device;
Credit card system member: a financial institution or other entity that is a member of a credit card system, including an entity, whether affiliated with or identical to the credit card issuer, that is the sole member of a credit card system;
Scanning receiver: a device or apparatus that can be used to intercept a wire or electronic communication in violation of chapter 119 18 U.S.C. §§ 2510 et seq.) or to intercept an electronic serial number, mobile identification number, or other identifier of any telecommunications service, equipment, or instrument;

Telecommunications service: has the meaning given such term in section 3 of title I of the Communications Act of 1934 (47 U.S.C. 153);
Facilities-based carrier: an entity that owns communications transmission facilities, is responsible for the operation and maintenance of those facilities, and holds an operating license issued by the Federal Communications Commission under the authority of title III of the Communications Act of 1934 (47 U.S.C. §§ 301 et seq.);
Telecommunication identifying information: electronic serial number or any other number or signal that identifies a specific telecommunications instrument or account, or a specific communication transmitted from a telecommunications instrument.

18 U.S.C. § 1028 (2007).
False Identification Documents
After a person has obtained another person's mail or personal information, he can then forge a new identity and attempt to use it, which is a crime covered by 18 U.S.C. § 1028.

Jurisdictional Elements
The government will have to prove one of three things in prosecuting a case for fraud in connection with identification documents. One of the three is that the false identification appears to be issued by or under the authority of the United States or a sponsoring entity of an event designated as a special event of national significance or that the document-making implement is designed or suited for making such an identification document, authentication feature, or false identification document. 18 U.S.C. § 1028(c)(1). The second of the three is that the offense is covered by section 1028(a)(4) (knowingly possessing an identification document (other than one issued lawfully for the use of the possessor), authentication feature, or a false identification document, with the intent such document or feature be used to defraud the United States). 18 U.S.C. § 1028(c)(2). The third of the three is two-pronged: either (A) the production, transfer, possession, or use prohibited by this section is in or affects interstate or foreign commerce, including the transfer of a document by electronic means; or (B) the means of identification, identification document, false identification document, or document-making implement is transported in the mail in the course of the production, transfer, possession, or use prohibited by this section. 18 U.S.C. § 1028(c)(3).

The Crime
Under section 1028(a), it is a crime for a person to
knowingly and without lawful authority produce an identification document, authentication feature, or a false identification document; 18 U.S.C. § 1028(a)(1);
knowingly transfers an identification document, authentication feature, or a false identification document knowing that such document or feature was stolen or produced without lawful authority; Id. § 1028(a)(2);

knowingly possesses with intent to use unlawfully or transfer unlawfully five or more identification documents (other than those issued lawfully for the use of the possessor), authentication features, or false identification documents; Id. § 1028(a)(3);
knowingly possesses an identification document (other than one issued lawfully for the use of the possessor), authentication feature, or a false identification document, with the intent such document or feature be used to defraud the United States; Id. § 1028(a)(4);
knowingly produces, transfers, or possesses a document-making implement or authentication feature with the intent such document-making implement or authentication feature will be used in the production of a false identification document or another document-making implement or authentication feature which will be so used; Id. § 1028(a)(5);
knowingly possesses an identification document or authentication feature that is or appears to be an identification document or authentication feature of the United States or a sponsoring entity of an event designated as a special event of national significance which is stolen or produced without lawful authority knowing that such document or feature was stolen or produced without such authority; Id. § 1028(a)(6);
knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person with the intent to commit, or to aid or abet, or in connection with, any unlawful activity that constitutes a violation of Federal law, or that constitutes a felony under any applicable State or local law; Id. § 1028(a)(7); or
knowingly traffics in false or actual authentication features for use in false identification documents, document-making implements, or means of identification; Id. § 1028(a)(8).

Definitions
Some of the terms in the above sections need to be defined.
Authentication feature: any sort of feature, such as a hologram, watermark, code, image, or sequence of numbers or letters, that either individually or in combination with another feature is used by the issuing authority on an identification document, document-making implement, or means of identification to determine if the document is counterfeit, altered, or otherwise falsified;
Document-making implement: any implement, impression, template, computer file, computer disc, electronic device, or computer hardware or software, that is specifically configured or primarily used for making an identification document, a false identification document, or another document-making implement;
Identification document: a document made or issued by or under the authority of the United States Government, a State, political subdivision of a State, a foreign government, political subdivision of a foreign government, an international governmental or an international quasi-governmental organization which, when completed with information concerning a particular individual, is of a type intended or commonly accepted for the purpose of identification of individuals;

False identification document: means a document of a type intended or commonly accepted for the purposes of identification of individuals that (A) is not issued by or under the authority of a governmental entity or was issued under the authority of a governmental entity but was subsequently altered for purposes of deceit; and (B) appears to be issued by or under the authority of the United States Government, a State, a political subdivision of a State, a foreign government, a political subdivision of a foreign government, or an international governmental or quasi-governmental organization;
False authentication feature: an authentication feature that (A) is genuine in origin, but, without the authorization of the issuing authority, has been tampered with or altered for purposes of deceit; (B) is genuine, but has been distributed, or is intended for distribution, without the authorization of the issuing authority and not in connection with a lawfully made identification document, document-making implement, or means of identification to which such authentication feature is intended to be affixed or embedded by the respective issuing authority; or (C) appears to be genuine, but is not;
Issuing authority: (A) any governmental entity or agency that is authorized to issue identification documents, means of identification, or authentication features; and (B) includes the United States Government, a State, a political subdivision of a State, a foreign government, a political subdivision of a foreign government, or an international government or quasi-governmental organization;
Means of identification: any name or number that may be used, alone or in conjunction with any other information, to identify a specific individual, including any (A) name, social security number, date of birth, official State or government issued driver's license or identification number, alien registration number, government passport number, employer or taxpayer identification number; (B) unique biometric data, such as fingerprint, voice print, retina or iris image, or other unique physical representation; (C) unique electronic identification number, address, or routing code; or (D) telecommunication identifying information or access device (as defined in section 1029(e) (18 U.S.C. § 1029(e)));
Personal identification card: means an identification document issued by a State or local government solely for the purpose of identification;
Produce: includes alter, authenticate, or assemble;
Transfer: includes selecting an identification document, false identification document, or document-making implement and placing or directing the placement of such identification document, false identification document, or document-making implement on an online location where it is available to others;
State: any State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, and any other commonwealth, possession, or territory of the United States;
Traffic: (A) to transport, transfer, or otherwise dispose of, to another, as consideration for anything of value; or (B) to make or obtain control of with intent to so transport, transfer, or otherwise dispose of.

18 U.S.C. § 1028 (2007) (Continued)
. The PunishmentThe punishment will be a fine, imprisonment for not more than 15 years, or both if the defendant is convicted of one of the following:
Producing or transferring an identification document, authentication feature, or false identification document that is or appears to be either an identification document or authentication feature issued by or under the authority of the United States; or a birth certificate, or a driver's license or personal identification card.
Producing or transferring more than five identification documents, authentication features, or false identification documents;
Violating section 1028(a)(5); or
Violating section 1028(a)(7) in a way that involves the transfer, possession; or use of 1 or more means of identification if, as a result of the offense, any individual committing the offense obtains anything of value aggregating $1,000 or more during any 1-year period;
The punishment will be a fine, imprisonment for not more than 5 years, or both, if the defendant is convicted of:
Any other production, transfer, or use of a means of identification, an identification document, authentication feature, or a false identification document; or
Violating sections 1028(a)(3) or (7) of such subsection;
(Note: The punishment provisions here seem redundant and it seems that Congress intended the harsher penalty to go to those who benefit financially from falsifying identification; however, that is not how the statute is written.)
The punishment will be a fine, imprisonment for not more than 20 years, or both, if the defendant is convicted of:
Violating 18 U.S.C. § 1028 to facilitate a drug trafficking crime under 18 U.S.C. § 929(a)(2);
Violating 18 U.S.C. § 1028 in connection with a crime of violence under 18 U.S.C. § 924(c)(3); or
Violating 18 U.S.C. § 1028 after a prior conviction under this section becomes final;
The punishment will be a fine, imprisonment for not more than 30 years, or both, if the defendant is convicted of violating:18 U.S.C. § 1028:
to facilitate an act of domestic terrorism under 18 U.S.C. § 2331(5); or
to facilitate an act of international terrorism under 18 U.S.C. § 2331(1).

The punishment will be a fine, imprisonment for not more than one year, or both, in any other case. 18 U.S.C. § 1028(b)(6).
A convicted defendant will also be required to forfeit to the United States any personal property used or intended to be used to commit the offense.
Any person who attempts or conspires to commit any offense under 18 U.S.C. § 1028 section shall be subject to the same penalties as those prescribed for the offense.

Case Law Interpreting Section 1028
It is irrelevant whether or not the defendant physically produced the false document. The defendant "cannot insulate himself from punishment by manipulating third parties to perform acts on his behalf that would be illegal if he performed them himself." United States v. Rashawn, 328 F.3d 160, 165 (4th Cir. 2003). In Rashawn, the court found that the defendant "aided and abetted the production of false identification documents by providing false information to the [Virginia] DMV with the specific intent that the agency would then produce a false identification document for him." Id.
In United States v. Villarreal, 253 F.3d 831, 834 (5th Cir. 2001), the defendant was convicted of violating 18 U.S.C. § 1028(a)(2) The defendant agreed to transfer false identification documents to a third party to enable the third party to travel freely between the United States and Mexico. However, the third party was a federal agent working undercover, so the transferred documents never actually traveled in foreign commerce as originally planned. The question was whether the jurisdictional requirements of section 1028(c)(3)(A)-that the prohibited conduct is in or affects interstate or foreign commerce-were satisfied. The court held that it should focus on "whether the transfer would have affected interstate or foreign commerce if [the defendant] had successfully accomplished his intended goals," and not whether the transfer actually occurred. Villarreal, at 835. There was evidence that the defendant met with an undercover officer in a Laredo, Texas motel; that he believed the undercover officer was a Mexican National in need of documents to remain in the United States; that during the meeting the two discussed the pros and cons of using various documents to cross the border between the United States, travel beyond Texas, and how to avoid the suspicions of immigration officers; and that the defendant sold a fraudulent City of Laredo Birth Registration Card to the undercover officer for $ 625. Id. Therefore, the court found there was jurisdiction.

In United States v. Kayode, 254 F.3d 204 (D.C. Cir. 2001) the defendant was charged with the possession of false identification documents with the intent to use them unlawfully. Kayode at 213. 18 U.S.C. § 1028(a)(3) makes it unlawful to possess five or more false documents. "In order to convict, the jury must find as to each identification document that the document was false, that the defendant possessed it and that the defendant intended to use that document unlawfully." Id. at 214. The defendant wanted a unanimity instruction requiring all members of the jury to agree as to which five documents satisfied all elements of the statute. However, the court stated that "[t]he statute makes relevant only the number of false identification documents intended to be used, not the identity of each particular document. The district court therefore did not err in declining to give a unanimity instruction." Id.

In United States v. Pearce, 65 F.3d 22 (4th Cir. 1995), the defendants were charged with possessing document-making implements under section 1028(a)(5) such as: "laminating materials, rub on lettering materials, laminating machine [sic], photos with backdrops, blank driver's licenses from the States of Tennessee and Connecticut, and one partially completed State of Tennessee driver's license." Pearce at 24. At issue in Pearce was whether there was a sufficient nexus between a document-making implement and interstate commerce in order to satisfy the jurisdictional requirements of section 1028(c)(3). Evidence was introduced, and the court determined, that there was a sufficient nexus. The defendants were North Carolina residents, but they possessed identification from Tennessee, New Jersey, and Connecticut, and several materials were made abroad and had traveled through interstate commerce: laminating pouches from Mexico, a laminating machine from Korea, and at least one package of rub-on letters from Blaine, Washington. Id. at 25.

Aggravated Identity Theft
. 18 U.S.C. § 1028A (2007)
Under 18 U.S.C. § 1028A, if a person knowingly and unlawfully transfers, possesses, or uses a means of identification of another person in conjunction with the commission of a set list of felonies, that person will be punished as those felonies provide and that person will additionally be imprisoned for 2 years. If the felony happens to be a terrorism offense, that person will receive an additional 5 years of imprisonment.
Furthermore, that person will not be placed on probation, nor will the term of imprisonment run concurrently, unless the court has been given discretion to do by the Sentencing commission.

The felonies that are listed in section 1028A are:
18 U.S.C. § 641 (relating to theft of public money, property, or rewards), 18 U.S.C. § 656 (relating to theft, embezzlement, or misapplication by bank officer or employee), or 18 U.S.C. § 664 (relating to theft from employee benefit plans);
18 U.S.C. § 911 (relating to false personation of citizenship);
18 U.S.C. § 922(a)(6) (relating to false statements in connection with the acquisition of a firearm);
any provision contained in this chapter (18 U.S.C. §§ 1001 et seq.) (relating to fraud and false statements), other than this section or 18 U.S.C. § 1028(a)(7);
any provision contained in chapter 63 (18 U.S.C. §§ 1341 et seq.) (relating to mail, bank, and wire fraud);
any provision contained in chapter 69 (18 U.S.C. §§ 1421 et seq.) (relating to nationality and citizenship);
any provision contained in chapter 75 (18 U.S.C. §§ 1541 et seq.) (relating to passports and visas);
section 523 of the Gramm-Leach-Bliley Act (15 U.S.C. § 6823) (relating to obtaining customer information by false pretenses);

section 243 or 266 of the Immigration and Nationality Act (8 U.S.C. §§ 1253 and 1306) (relating to willfully failing to leave the United States after deportation and creating a counterfeit alien registration card);
any provision contained in chapter 8 of title II of the Immigration and Nationality Act (8 U.S.C. §§ 1321 et seq.) (relating to various immigration offenses); or
section 208, 811, 1107(b), 1128B(a), or 1632 of the Social Security Act (42 U.S.C. §§ 408, 1011, 1307(b), 1320a-7b(a), and 1383a) (relating to false statements relating to programs under the Act).

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