Identity Theft Prosecution

Efforts by the federal government to prosecute identity theft cases have as grown in the aftermath of 9/11. The ability of persons to commit identity theft offenses has become much more widespread through the use of technological advances and computers. Identity theft is the unlawful use of another person’s identification. It is done through the knowing transfer, possession, or use of another person’s identification such as the name, date of birth, social security numbers, and address. Under federal law it is treated as a serious white collar crime and can be a factor that aggravates another felony offense, warranting additional jail sentence.

The federal statute that was enacted to deal with identity theft is found primarily in Title 18 U.S.C. § 1028 and 1028A. These statutes make it a crime to knowingly and without legal authority to use, produce, transfer, possess, or traffic in false identity documents. The statute also makes it a crime to produce transfer or possess a document making device or an authentication feature with the intent to use it in the production false identity document. The statute also makes it a crime to possess a stolen or counterfeit identity document for a special event designated by the President as a special event of national significance. An identification document described in theses statutes means a document made or issued by or under the authority of:

  1. The U.S. government;
  2. A state government;
  3. A political subdivision of a state, such as a city;
  4. A sponsoring entity of a special event of national significance; or
  5. A foreign government.

Miami attorney Ken Swartz has the experience and expertise in criminal law to handle your identity theft case.

Mandatory 2 year sentence with knowledge the identity belongs to a real person

Section 1028A imposes a mandatory 2 year sentence if a person knowingly possesses or uses the identity of another without authority in relation to another felony. Some of the felonies listed in the statute to include theft of public money, false impersonation of citizenship, false statement to acquire a firearm, mail fraud, wire fraud and any immigration offense.

The Supreme Court held in U.S. v. Flores-Figueroa that the government must prove the defendant knew the means of identification belonged to another person. In that case Flores-Figueroa a citizen of Mexico gave his employer a counterfeit Social Security card and alien registration card (green card) in his name but used numbers which in fact had been assigned to other people. When Flores-Figueroa was charged with the predicate crime of entering the U.S. without inspection and misusing immigration documents, he was charged with identity theft and subject to the mandatory sentence. The Supreme Court held that the mandatory sentence could not be imposed because the government could not prove that he knew that the counterfeit document numbers belonged to someone else.

A different result happened in U.S. v. Gomez-Castro, where the Eleventh Circuit found that found that defendnant’s use or misuse of the identity documents proved knowledge it belonged to a real person. The court considered the large price paid for the birth certificate and the social security card, her having successfully used the ID to obtain a N.Y. driver’s license, credit card, and bank cards were all circumstantial proof that the defendant knew the identity was a real person.

If you or someone you love has been arrested, is being investigated, or is accused of committing an identity fraud crime, you need an attorney to represent you who has the experience and expertise in criminal law to handle the problem. Ken Swartz, one of the top Miami criminal defense attorneys in the state, is prepared for your defense.

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