ILNews

Federal identity theft statute includes use of deceased's identity

Back to TopE-mailPrintBookmark and Share

A person can be convicted of aggravated identity theft under 18 U.S.C. Section 1028A for using the identity of a person who is dead or alive, the 7th Circuit Court of Appeals ruled in an issue of first impression.

Anna LaFaive, who stole her dead sister’s identity to open checking accounts using counterfeit checks and withdrew nearly $65,000, argued that Section 1028A can only criminalize the use of a living person’s identity.

Section 1028A only uses the term “another person,” and doesn’t define “person.” In United States of America v. Anna LaFaive, also known as Phyllis Click, No. 09-2344, the judges rejected LaFaive’s argument that because Congress didn’t specify deceased people under the statute, that “another person” only refers to living people. But Congress didn’t use the word “living” either, and citing an 8th Circuit Court of Appeals case, the 7th Circuit judges agreed that the common usage of “person” includes both living and dead individuals.

They also concluded the structure of the statute supported their decision. Both subsections (a)(1) and (a)(2) prohibit the use of another person’s identification. Subsection (2) deals with identity theft and terrorism.

“If ‘another person’ in subsection (a)(2) was limited to living persons, the statute would prohibit the use of a deceased person’s social security card but not the oral use of that same deceased person’s social security number,” wrote Judge Michael Kanne. “…we agree with the other circuits that have concluded that limiting ‘person’ in subsection (a)(2) to a living person works an ‘illogical,’ ‘absurd,’ and ‘nonsensical’ result.”

Judge Kanne also noted the 7th Circuit is not the only one to decide after the ruling in Flores-Figueroa v. United States, 129 S.Ct. 1886 (2009), that Section 1028A covers the use of the identity of those living and dead.

The Circuit judges also upheld LaFaive’s sentence, finding the District Court didn’t plainly err in calculating or imposing her sentence. The District Court made it abundantly clear that it was departing upward from the 24- to 30-month range for the bank fraud counts based almost entirely on the fact that LaFaive’s criminal history score underrepresented the seriousness of her criminal background. In addition, the District Court was required to impose the mandatory 24 consecutive months on the aggravated identity theft counts, wrote the judge.
 

ADVERTISEMENT

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Someone off their meds? C'mon John, it is called the politics of Empire. Get with the program, will ya? How can we build one world under secularist ideals without breaking a few eggs? Of course, once it is fully built, is the American public who will feel the deadly grip of the velvet glove. One cannot lay down with dogs without getting fleas. The cup of wrath is nearly full, John Smith, nearly full. Oops, there I go, almost sounding as alarmist as Smith. Guess he and I both need to listen to this again: https://www.youtube.com/watch?v=CRnQ65J02XA

  2. Charles Rice was one of the greatest of the so-called great generation in America. I was privileged to count him among my mentors. He stood firm for Christ and Christ's Church in the Spirit of Thomas More, always quick to be a good servant of the King, but always God's first. I had Rice come speak to 700 in Fort Wayne as Obama took office. Rice was concerned that this rise of aggressive secularism and militant Islam were dual threats to Christendom,er, please forgive, I meant to say "Western Civilization". RIP Charlie. You are safe at home.

  3. It's a big fat black mark against the US that they radicalized a lot of these Afghan jihadis in the 80s to fight the soviets and then when they predictably got around to biting the hand that fed them, the US had to invade their homelands, install a bunch of corrupt drug kingpins and kleptocrats, take these guys and torture the hell out of them. Why for example did the US have to sodomize them? Dubya said "they hate us for our freedoms!" Here, try some of that freedom whether you like it or not!!! Now they got even more reasons to hate us-- lets just keep bombing the crap out of their populations, installing more puppet regimes, arming one faction against another, etc etc etc.... the US is becoming a monster. No wonder they hate us. Here's my modest recommendation. How about we follow "Just War" theory in the future. St Augustine had it right. How about we treat these obvious prisoners of war according to the Geneva convention instead of torturing them in sadistic and perverted ways.

  4. As usual, John is "spot-on." The subtle but poignant points he makes are numerous and warrant reflection by mediators and users. Oh but were it so simple.

  5. ACLU. Way to step up against the police state. I see a lot of things from the ACLU I don't like but this one is a gold star in its column.... instead of fighting it the authorities should apologize and back off.

ADVERTISEMENT