Identity Theft. Even If You Didn’t Steal Anyone’s Identity.

Two weeks ago, a federal court of appeals in California decided that a law that punished “aggravated identity theft” could apply to a person who didn’t steal or misappropriate anyone’s identity. See 18 U.S.C. § 1028A. If the decision stands, it will create federal law in California and eight other states.

That matters because section 1028A mandates an extra two, consecutive years in prison if you commit its brand of identity theft during and in relation to any one of a broad list of qualifying crimes and frauds. You’re not eligible for probation if you’re convicted, and there’s no parole in the federal system, so you’re pretty much serving all that time no matter what.

The statute defines identity theft as knowingly using, possessing, or transferring a means of identification of another person without lawful authority. A “means of identification” can be any name or number that’s used alone or along with other information to identify a specific person. Id. § 1028(d)(7). Think name, signature, date of birth, driver’s license number, social security number, or in this case, a passport.

The issue before the court was the meaning of the phrase, “without lawful authority.”

So, what if you used someone’s passport but with permission? Is that still identity theft?

That’s what happened to this guy. He was arrested in San Diego after crossing the border from Mexico. He was the sole driver of a car that was found to contain two kilograms of cocaine and three kilograms of methamphetamine. When he was first stopped at the border, he presented a U.S. passport and passed it off as his, but after some questioning, he admitted that the passport belonged to his twin brother.

At trial, he was convicted of aggravated identity theft in addition to the drug-trafficking charges, and he appealed, arguing that he couldn’t be guilty of identity theft because he had his brother’s permission.

But the court held otherwise, agreeing with several other courts of appeals that, despite its title, section 1028A did not require theft as an element of the crime. See, e.g., United States v. Otuya, 720 F.3d 183, 189-90 (4th Cir. 2013) (upholding the conviction of a defendant who used a co-conspirator’s bank account with that person’s consent); United States v. Retana, 641 F.3d 272, 273-75 (8th Cir. 2011) (upholding the conviction of a son who used his father’s social security number with permission).

The law isn’t settled, however. Recently, the federal court of appeals that covers Illinois, Indiana, and Wisconsin held that the statute required proof that you used someone’s identity without consent; otherwise, it’s identity fraud, which is covered by other statutes, not identity theft. United States v. Spears, 729 F.3d 753, 755-58 (7th Cir. 2013) (en banc).

Indeed, the congressional record for section 1028A indicates that its purpose was to raise penalties on people who “steal identities to commit terrorist acts, immigration violations, firearms offenses, and other serious crimes.” See H.R. Rep. No. 108-528, 150 Cong. Record at 3 (June 8, 2004).

What’s clear is that section 1028A doesn’t apply if the phony passport (or other means of identification) doesn’t belong to a real person. See Flores-Figueroa v. United States, 556 U.S. 646, 647 & 657 (2009). The word “person,” however, includes the living and deceased, so the government doesn’t need to prove that you knew the person was alive when you did the deed. United States v. Maciel-Alcala, 612 F.3d 1092, 1094 & 1100-02 (9th Cir. 2010).

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