Jan 192010
 January 19, 2010  Posted by  Breaches, Laws

Janice Kephart writes:

This Backgrounder proposes statutory language fixes to federal identity theft and aggravated felony language in 18 U.S.C. §§ 1028 and 1028A to reverse the practical implications of the May 2009 Supreme Court ruling in Flores-Figueroa v. United States.1 Flores crippled prosecutors’ longstanding practice of using the aggravated identity theft statute by requiring that prosecutors now also prove that a defendant knew he was using a real person’s identity information, as opposed to counterfeit information not connected to an actual person. The statute is an important tool for immigration enforcement. Proving a defendant’s knowledge about his crime is always difficult, and impossible in some cases, even where there is substantial harm and clear victims. This is especially the situation with illegal aliens who buy identity information from third parties. The inevitable result of the Flores decision is to enable perpetrators an easy defense and to tie prosecutors’ hands. The defendant in the case was an illegal alien working at a steel plant in Illinois.

The fixes proposed in this report attempt to encapsulate the original intent of Congress when it broadened federal criminal identity theft law in 1998 and added mandatory sentencing guidelines for identity theft in 2004. Ensuring adequate penalties for the ever-evolving crime of identity theft and fraud and better protecting victims of this pervasive crime was of paramount importance both times federal law was amended. Flores identified an inadvertent flaw in the statutory language and has now put the responsibility on Congress to fix the language or deal with the untenable result of an additional burden of proof on prosecutors, resulting in fewer identity theft cases being prosecuted or more defendants being let off the hook for serious crimes due to a legal loophole.

This report:

  • Provides an independent analysis of 250 identity theft and fraud cases prosecuted in every state by the Department of Justice and sentenced under the aggravated identity theft statutes (Sections 1028 and 1028A) within the past three years.
  • Reviews legislative history of both Sections 1028 and 1028A.
  • Analyzes the Circuit Court and Supreme Court cases that led to the current interpretation of Section 1028A.
  • Proposes minor but important changes in the statutory language for Sections 1028 and 1028A.

We conclude that, while the Supreme Court’s decision in the Flores case arguably may be supported by the plain language of Section 1028A, the decision goes against a clear reading of congressional intent. More importantly, the practical result of Flores will be to chill prosecutors’ use of the aggravated identity theft felony charges. Perpetrators of identity fraud will be emboldened due to less concern about penalties and culpability, while victims and the federal government will have less effective tools to combat the ever-proliferating means of identity fraud, especially within the context of immigration violations and illegal hiring practices.

Congress should act to correct the Flores interpretation of 18 U.S.C. § 1028A quickly. This Backgrounder shows a way forward.

Recommendation: Amend Title 18, United States Code, Chapter 47, Sections 1028 and 1028A to (1) ensure persons who commit identity theft or fraud for the purpose of unauthorized employment or hiring or harboring unauthorized employees are punishable under both Sections 1028 and 1028A; (2) expand the mandatory aggravated identity theft felony charge under Section 1028A to include fraud relating to a means of identification, identity documents, or authentication features, whether genuine or false; (3) make clear that a defendant who possesses or otherwise uses identity information not his own without lawful authority and in the commission of another felony is still punishable for aggravated identity fraud, regardless of the defendant’s “knowledge” of the victim.

Read more on Center for Immigration Studies.

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