Thursday, February 26, 2009

Supreme Court and ID Theft

This is a very interesting new development regarding ID Theft. Pay Attention!

High Court takes up ID theft law

WASHINGTON ˆ During oral arguments at the U.S. Supreme Court Wednesday, the justices tried to figure out just who Congress intended to punish with its new federal identity theft law.

Here is the key question;

Was the statute meant to boost the sentence of anyone who knowingly uses false identification information, or must a defendant know that information belongs to someone else?

The statute in question, U.S.C. § 1028A(a)(1), tacks an additional two years onto the sentence of anyone who "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."

Subsection (c) includes a host of felonies, from embezzlement and wire fraud to violation of the Immigration and Nationality Act.

But just what the word "knowingly" means is far from clear. And the answer could have wide implications for the law federal prosecutors have used in hundreds of immigration violation cases in the last year alone.

The defendant in Flores-Figueroa v. U.S. , Mexican citizen Ignacio Carlos Flores-Figueroa, worked illegally at a steel plant using forged Social Security and alien registration cards he had purchased.

His employer became suspicious of the documents and contacted federal authorities, who found that the documents listed Social Security and alien registration numbers that had been issued to other people.

Flores-Figueroa pleaded guilty to charges of misuse of immigration documents and illegal entry. After a bench trial, he was also convicted of violating the federal identity theft statute, although the government presented no evidence that Flores-Figueroa knew that the numbers belonged to an actual person.

The 8th Circuit upheld the conviction , and the Supreme Court granted certiorari.

At oral argument, defense attorney Kevin K. Russell, a partner at the Washington, D.C. firm of Howe & Russell, admitted that it is possible to read the statute as forbidding only the knowing use of a false document.

"We don't claim the government's [interpretation] is grammatically impossible," Russell said. "We are saying that the most natural reading" is that the perpetrator must know the information belongs to an actual person.

"Suppose someone buys an identification card [that] looks like it could be real [but] he isn't sure?" asked Justice Samuel Alito, Jr.

"I don't think simply having a number on a card rises [to] the level of knowledge," Russell said.

Toby J. Heytens, the assistant to the Solicitor General, argued that the statute was meant to protect victims of identity theft ˆ whether or not the offender knew who they were or if they existed.

"There are no victimless violations" of the statute, he argued.

Chief Justice John G. Roberts, Jr. wasn't convinced that the same statute that applies to stealing a Social Security card from a purse should apply if "it just so happens that the number you picked out of the air belongs to someone else."

It's not going to matter "to the person whose identity" was accidentally stolen, Heytens replied.

Justice Antonin Scalia wondered if the rule of lenity required giving the defendant the edge.

"If [the statute] is ambiguous, the tie goes to the defendant," Scalia said.

When Heytens asserted that the rule of lenity doesn't apply here, Roberts noted the Court's decision in U.S. v. Hayes , handed down just the day before, in which the Court ruled that any ambiguity in the Federal Gun Control Act required a ruling in the defendant's favor under the rule of lenity.

"Is it time to reconsider the Court's ruling in Hayes?" Roberts asked, drawing laughter.

A decision is expected later this term.


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