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Federal identity theft statute includes use of deceased's identity

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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.
 

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  2. Mr. Levin says that the BMV engaged in misconduct--that the BMV (or, rather, someone in the BMV) knew Indiana motorists were being overcharged fees but did nothing to correct the situation. Such misconduct, whether engaged in by one individual or by a group, is called theft (defined as knowingly or intentionally exerting unauthorized control over the property of another person with the intent to deprive the other person of the property's value or use). Theft is a crime in Indiana (as it still is in most of the civilized world). One wonders, then, why there have been no criminal prosecutions of BMV officials for this theft? Government misconduct doesn't occur in a vacuum. An individual who works for or oversees a government agency is responsible for the misconduct. In this instance, somebody (or somebodies) with the BMV, at some time, knew Indiana motorists were being overcharged. What's more, this person (or these people), even after having the error of their ways pointed out to them, did nothing to fix the problem. Instead, the overcharges continued. Thus, the taxpayers of Indiana are also on the hook for the millions of dollars in attorneys fees (for both sides; the BMV didn't see fit to avail itself of the services of a lawyer employed by the state government) that had to be spent in order to finally convince the BMV that stealing money from Indiana motorists was a bad thing. Given that the BMV official(s) responsible for this crime continued their misconduct, covered it up, and never did anything until the agency reached an agreeable settlement, it seems the statute of limitations for prosecuting these folks has not yet run. I hope our Attorney General is paying attention to this fiasco and is seriously considering prosecution. Indiana, the state that works . . . for thieves.

  3. I'm glad that attorney Carl Hayes, who represented the BMV in this case, is able to say that his client "is pleased to have resolved the issue". Everyone makes mistakes, even bureaucratic behemoths like Indiana's BMV. So to some extent we need to be forgiving of such mistakes. But when those mistakes are going to cost Indiana taxpayers millions of dollars to rectify (because neither plaintiff's counsel nor Mr. Hayes gave freely of their services, and the BMV, being a state-funded agency, relies on taxpayer dollars to pay these attorneys their fees), the agency doesn't have a right to feel "pleased to have resolved the issue". One is left wondering why the BMV feels so pleased with this resolution? The magnitude of the agency's overcharges might suggest to some that, perhaps, these errors were more than mere oversight. Could this be why the agency is so "pleased" with this resolution? Will Indiana motorists ever be assured that the culture of incompetence (if not worse) that the BMV seems to have fostered is no longer the status quo? Or will even more "overcharges" and lawsuits result? It's fairly obvious who is really "pleased to have resolved the issue", and it's not Indiana's taxpayers who are on the hook for the legal fees generated in these cases.

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