Federal Criminal Defense Law Firm:
Identity Theft - Federal Criminal Defense Lawyer

Introduction
Identity theft is one of the fastest growing crimes in the world. The news has been filled with stories about how personal data have been compromised from certain personal information aggregators such as ChoicePoint and LexisNexis. See, e.g., Peter Lewis, Taking a Bite Out of Identity Theft; Corporations are mishandling your personal data, but the real threat may be closer to home. Here's how a simple paper shredder can help, FORTUNE May 2, 2005, at 36; David Colker & Rong-Gong Lin II, Law May Help Freeze ID Theft; A 2003 statute allows Californians to block access to their credit reports. Few knew about it until the ChoicePoint Scandal, L.A. TIMES, Apr. 23, 2005 at C1; Heather Timmons, Security Breach at LexisNexis Now Appears Larger, N.Y. TIMES, Apr. 12, at C7. The United States takes the compromising of such data very seriously. On October 30, 1998, Congress enacted the Identity Theft and Assumption Deterrence Act of 1998, Pub. L. No. 105-318 [hereinafter ITADA].

• The ITADA amended the fraud chapter of title 18 of the United States Code to create a new crime prohibiting the unlawful use of personal identifying information, including, but not limited to, names, social security numbers, and credit card numbers. Identity fraud involves the misappropriation of another person's personal identifying information. Criminals use this information to establish credit in their name, run up debts on another person's account, or take over existing financial accounts. The ITADA directed the Sentencing Commission to "review and amend the Federal sentencing guidelines and the policy statements of the Commission, as appropriate, to provide an appropriate penalty for each offense under section 1028 of title 18, United States Code, as amended by this Act." Identity Theft and Assumption Deterrence Act of 1998, Pub. L. No. 105-318 § 4(a), 112 Stat. 3007 (codified in 28 U.S.C. § 994 note). United States v. Williams, 355 F.3d 893, 898 (6th Cir. 2003).

There are both domestic and transnational implications of identity theft. The perpetrators of the most recent ChoicePoint breach, as well as a similar breach in 2000, were from Nigeria. See David Colker & Joseph Menn, ChoicePoint Had Earlier Data Link; Scammers accessed financial information five years ago in a scheme similar to a recent case, L.A. TIMES , Mar. 2, 2005, at C1. Illegal immigrants often have false identities as they try to enter the country, and an Egyptian-born American citizen pleaded guilty to selling fake international driver's licenses to two of the September 11 hijackers. See Threats and Responses: Document Fraud; Guilty Plea Expected by Seller of Fake ID's to 9/11 Hijackers, N.Y. TIMES, Feb. 4, 2003, at A13.

Congress has criminalized identity theft and the use of a false identity in a number of ways. It has criminalized the theft of mail, the unauthorized access of computer storage, the theft of credit cards and PINs, the use of a false identity, and even the use of a false identity in committing a felony. What follows is a synopsis of the crime of identity theft in the United States Code and its application in United States courts.

18 U.S.C. § 1708 (2007).

Theft of Mail
One common way identity theft occurs is through the theft of mail. 18 U.S.C. § 1708 covers this scenario.

It is a federal crime, punishable by a fine, imprisonment for not more than five years, or both, to steal someone's mail. This means it is a crime to steal, take, destroy, embezzle, or fraudulently obtain-or attempt to do any of the previous-mail from the post office, the postal delivery person, a mailbox, or any other mail receptacle. It is also a crime to steal, take, destroy, embezzle, or fraudulently obtain-or attempt to do any of the previous-mail which has been left for collection at a collection box or other authorized mail depository. Finally, it is a crime to buy, receive, conceal, or unlawfully possess mail which has been stolen, knowing it to be stolen.

Possession of Stolen Mail
There are two interpretations of the elements of a possession of stolen mail charge. The first is as follows:

1. That the items in question were stolen from the mails;
2. That the defendant willfully possessed those items contrary to law; and
3. That while possessing the items, the defendant knew they were stolen from the mail. United States v. Patterson, 664 F.2d 1346, 1347 (9th Cir. 1982); United States v. Matzker, 473 F.2d 408, 409 (8th Cir. 1973).

However, other courts removed the requirement that the defendant knows the item was stolen from the mails. United States v. Gardner, 454 F.2d 534, 535 (9th Cir. 1972). The matter seems settled by the United States Supreme Court. All that is required is the knowledge that the property was stolen, not necessarily the knowledge that it was stolen from the mail. Barnes v. United States, 412 U.S. 837, 847 & n. 14 (1973) (citing H.R. Rep. No. 734, 76th Cong., 1st Sess., 1 (1939)). Why subsequent courts continue to require knowledge the material was stolen from the mails is unclear, but suffice to say, the Supreme Court has ruled on the issue.

Identity Theft Continued-->