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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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  1. Such things are no more elections than those in the late, unlamented Soviet Union.

  2. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  3. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  4. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  5. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

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