Online Identity Theft applicable federal statutes and preventive measures

1
On-line Identity Theft applicable federal
statutes and preventive measures
Sean B. Hoar sean.hoar_at_usdoj.gov 541-465-6792
(voice)
2
Overview

• Federal statutes
• conventional identity theft -- 1028(a)(7)
• aggravated identity theft 1028A
• Federal cases
• United States v. Melendrez United States v.
  Godin
• Sentencing guidelines
• applicable enhancements
• Preventive measures
• Reactive measures

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18 U.S.C. 1028 and 1028A

• Title 18 U.S.C. 1028(a)(1)-(8) proscribes
  eight different types of document and
  identification fraud. Section 1028(a)(7) is the
  conventional federal identity theft statute.

The aggravated identity theft statute, 18
U.S.C. 1028A, carries a two year minimum
sentence, and prohibits the knowing and unlawful
transfer, possession, or use of a means of
identification of another person during and in
relation to any of more than 180 felony offenses.
4
United States v. Melendrez

• Facts Melendrez used stolen Social Security
  numbers to produce false forms of identification
  including other Social Security cards and DD
  Forms 214 (military discharge paperwork).
  Melendrez was subject to a 6-level sentence
  enhancement (from level 6 to level 12) because he
  used a means of identification to produce another
  means of identification (the breeder document
  enhancement).

Issue(s) Should the sentencing enhancement apply
where a defendant uses another persons means of
identification to produce fictitious forms of
identification (either in the defendants name or
a fictitious name) ?
An example of a fake ID
5
United States v. Melendrez

• Holding The Ninth Circuit engaged in a detailed
  analysis of the term means of identification
  and concluded that the means of identification
  is the identifying name or number of the actual
  person, not the document upon which it is placed.
  This means that if a SSN which was issued to an
  actual person is subsequently used to create a
  SSN card in a different name, the SSN continues
  to be a means of identification regardless of
  whether the document is fictitious.

• Discussion Questions
• Does the word another mean additional or
  different? See FN 5.

6
U.S. v. Godin

• In 2006, Godin defrauded eight banks and credit
  unions. She opened accounts using fabricated
  social security numbers, closed some accounts,
  and then deposited checks drawn on the closed
  accounts into the still open accounts. She then
  withdrew funds from the falsely inflated
  accounts. In this manner, she defrauded the banks
  of approximately 40,000.
• Godin fabricated seven different social security
  numbers by altering the fourth and fifth digits
  of her own social security number. Of the seven
  fabricated numbers, only one belonged to another
  person. Godin opened an account at Bank of
  America with the fabricated number but provided
  the bank with her correct name, address, date of
  birth, driver's license number, and telephone
  number.

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U.S. v. Godin

• Godin was charged in a 17 count indictment with
  bank fraud, social security fraud and one count
  of aggravated identity theft. She moved to
  dismiss the aggravated identity theft count,
  arguing that the government had to prove that she
  knew that the social security number belonged to
  another person.

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U.S. v. Godin

• Using all methods of statutory construction
  available to the court, it claimed to be unable
  to ascertain whether Congress intended the
  knowingly mens rea requirement to extend to of
  another person. It asserted that the language
  of section 1028A is ambiguous. Since it could
  not resolve the ambiguity by the statutory
  structure, the title, or the legislative history,
  it held that the rule of lenity applies, and the
  scienter requirement must stretch to of another
  person.
• The issue is currently before the Supreme Court .
  . .

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For Next Class

• I. The criminalization of Internet fraud, access
  device fraud, threatening communications, and
  interstate stalking.
• II. 18 U.S.C. 875, 1343, and 2261A.
• III. United States v. Kammersell
• IV. United States v. Alkhabaz
• V. United States v. Bowker
• VI. U.S.S.G. 2A6.1, 2A6.2, and 2B1.1

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Identity theft the nature of the problem

• Identity theft is simply the theft of information
  that identifies a specific individual -- a name,
  date of birth, Social Security Number (SSN),
  drivers license number, financial account
  number, etc.

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Identity theft the nature of the problem

• Due in part to our reliance upon the Internet and
  other electronic mediums to conduct financial
  transactions and store information, identity
  information is now more susceptible to theft than
  ever before.
• Sensational cases involving millions of victims
  from electronic database breaches frequent the
  written and broadcast media, highlighting the
  vulnerability of our information infrastructure.

12
Identity theft the nature of the problem

• Identity information exists everywhere from
  wallets to the Internet . . .
• Where is your identity information?
• Wallets or purses what is in yours?
• Computers what is in yours?
• Homes what is in yours?
• Cars what is in yours?
• The Internet anything in any public database or
  otherwise posted . . . or stolen . . .
• Data repositories . . .

13
Impact upon identity theft victims is different
than general fraud victims

• Law enforcement often becomes aware that a person
  is a victim of identity theft before the victim
  does
• During the course of an investigation, law
  enforcement often finds the identity of a victim
  in the possession of a criminal
• The crime is then reported to the victim, rather
  than from the victim to law enforcement

14
Impact upon identity theft victims is different
than general fraud victims

• The way in which identity theft occurs may delay
  discovery by the victim
• Database breaches done by insiders or through
  vulnerable or insecure area of computer system
• Computer intrusion done surreptitiously, often
  through vulnerable or insecure area of computer
  system
• Theft of mail pre-approved credit card
  solicitations accounts activated and cards sent
  to third-party address difficult to detect when
  unsolicited mail is stolen
• Theft of garbage and recycling material, both
  residential and commercial ("dumpster diving")
  difficult to detect when only identity
  information is taken

15
Impact upon identity theft victims is different
from general fraud victims

• The way in which identity theft occurs may delay
  discovery by the victim
• Pretexting done under false pretenses from third
  party
• Skimming done surreptitiously with electronic
  device which downloads credit/debit card
  information
• When committed against the vulnerable
• minors and elders
• When committed by someone in place of trust
• Friend, family, financial institution insider,
  food server

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Impact upon identity theft victims is different
than general fraud victims

• Scope of harm may be wider to victims of identity
  theft
• Direct financial losses
• Loss from checking account/savings account
• Indirect harms
• Damage to credit status
• Lost economic opportunities
• Damage to reputation
• Time and money incurred in legal process
• Civil liens and judgments
• Criminal arrest warrants and convictions
• Correction of harm may take substantial time and
  expense
• Victim may need to prove the negative

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Federal identity theft statutes

• 18 U.S.C. 1028(a)(1)-(6) and (8) proscribe the
  fraudulent creation, use, or transfer of
  identification documents
• 18 U.S.C. 1028(a)(7) proscribes the criminal
  transfer, possession or use of identification
  information

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Federal identity theft statutes

• 18 U.S.C. 1028A imposes a two-year mandatory
  sentence, consecutive to the underlying guideline
  sentence, for identity theft occurring during or
  in relation to over 180 federal
  non-terrorism-related felonies

19
The jurisdictional component

• All 1028 offenses must have facts that create
  federal jurisdiction. A commonly overlooked, but
  critical phrase at 1028(a)
• Whoever, in a circumstance described in
  subsection (c) of this section
• shall be punished as provided in subsection (b)
  of this section.

20
1028(a) jurisdictional component (a) Whoever,
in a circumstance described in subsection (c) of
this section This circumstance is comprised
of four types of facts

• the document or feature is or appears to be
  issued by or under the authority of the United
  States (SSN, DD 214, Passport, Alien Registration
  Receipt Card, etc.) or the document-making
  implement is designed or suited for making such a
  document or feature
• the document is possessed with intent to defraud
  the United States
• the prohibited production, transfer, possession,
  or use is in or affects interstate or foreign
  commerce (focus upon the actual interstate
  effects of the conduct)
• the means of identification, document, or
  document-making implement is transported in the
  mail in the course of the prohibited production,
  transfer, possession, or use

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Section 1028 proscribes a variety of document
fraud

• 1028(a)(1) unlawful production of an
  identification document, authentication feature,
  or a false identification document
• 1028(a)(2) transfer of an identification
  document, authentication feature, or a false
  identification document knowing that such
  document or feature was stolen or produced
  without lawful authority
• 1028(a)(3) possession with intent to use
  unlawfully or transfer unlawfully five or more
  identification documents (other than those issued
  lawfully for the use of the possessor),
  authentication features, or false identification
  documents

22
Section 1028 proscribes a variety of document
fraud

• 1028(a)(4) possession of an identification
  document (other than one issued lawfully for the
  use of the possessor), authentication feature, or
  a false identification document, with the intent
  such document or feature be used to defraud the
  United States (note that aggravating factors must
  be pled to allege a felony under (a)(4))
• 1028(a)(5) production, transfer, or possession
  of a document-making implement or authentication
  feature with the intent such document-making
  implement or authentication feature will be used
  in the production of a false identification
  document or another document-making implement or
  authentication feature which will be so used

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Section 1028 proscribes a variety of document
fraud

• 1028(a)(6) possession of an identification
  document or authentication feature that is or
  appears to be an identification document or
  authentication feature of the United States which
  is stolen or produced without lawful authority
  knowing that such document or feature was stolen
  or produced without such authority (note that
  aggravating factors must be pled to allege a
  felony under (a)(6))
• 1028(a)(8) trafficking in false authentication
  features for use in false identification
  documents, document-making implements, or means
  of identification

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Text of 18 U.S.C. 1028(a)(7) Conventional
identity theft subsection

• (a) Whoever, in a circumstance described in
  subsection (c) of this section
• Knowingly transfers or uses, without lawful
  authority, a means of identification of another
  person with the intent to commit, or to aid or
  abet, or in connection with, any unlawful
  activity that constitutes a violation of Federal
  law, or that constitutes a felony under any
  applicable State or local law
• shall be punished as provided in subsection (b)
  of this section.

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Elements of 18 U.S.C. 1028(a)(7)

• The government must prove beyond a reasonable
  doubt that the defendant
• knowingly transferred, possessed or used
• a means of identification of another person
  without lawful authority
• with the intent to commit, or aid and abet, or in
  connection with, any federal crime or any felony
  under state or local law, and
• that the transfer, possession or use was in or
  affected interstate or foreign commerce, or
  involved the mail
• Note that the federal, state, or local law that
  is facilitated by the identity theft must also be
  proven

26
Definition of transferred as used in
1028(a)(7) and 1028A--

• Transferred is defined under 18 U.S.C.
  1028(d)(10) and includes selecting an
  identification document and placing or directing
  the placement of it to on an online location
  where it is available to others

27
Definition of means of identification as
used in 1028(a)(7) and 1028A--

• Means of identification is defined under 18
  U.S.C. 1028(d)(7) and includes any name or number
  that may be used, alone or in conjunction with
  any other information, to identify a specific
  individual, including
• Name, SSN, DOB, drivers license number, alien
  registration number, passport number, taxpayer
  identification number, unique biometric data
  (fingerprint, retina or iris image, etc.), unique
  electronic identification number (e-mail address,
  financial account number, etc.), or
  telecommunication identifying information or
  access device (as defined in 18 U.S.C. 1029(e))

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Statutory penalties for a 1028(a) offense

• Depending upon the subsection alleged, and the
  facts pled and proved, 1028 provides a penalty
  of between one (1) and 30 years of imprisonment
• The penalty for a 1028(a)(7) offense will
  always be at least five (5) years imprisonment
  it will always be a felony

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Statutory penalties for a 1028(a) offense

• a 250,000 fine or imprisonment for not more than
  15 years, or both, if the offense is
• (A) the production or transfer of an
  identification document, authentication feature,
  or false identification document that is or
  appears to be
• (i) an identification document issued by or under
  the authority of the United States or
• (ii) a birth certificate, or a driver's license
  or personal identification card
• (B) the production or transfer of more than five
  identification documents, authentication
  features, or false identification documents

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Statutory penalties for a 1028(a) offense

• a 250,000 fine or imprisonment for not more than
  15 years, or both, if the offense is
• (C) an offense under (a)(5)
• (D) an offense under (a)(7) that involves the
  transfer or use of one (1) or more means of
  identification if, as a result of the offense,
  any individual committing the offense obtains
  anything of value aggregating 1,000 or more
  during any one (1) year period

31
Statutory penalties for a 1028(a) offense

• a 250,000 fine or imprisonment for not more than
  five (5) years, or both, if the offense is--
• (A) any other production, transfer, or use (not
  mere possession) of a means of identification, an
  identification document, authentication feature,
  or a false identification document or
• (B) an offense under (a)(3) possession with
  intent to use or transfer unlawfully five or more
  identification documents or (a)(7) transfer,
  possession or use of means of identification of
  another person with intent to commit federal
  crime or state felony

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Statutory penalties for a 1028(a) offense

• a 250,000 fine or imprisonment for not more than
  20 years, or both, if the offense is committed--
• (A) to facilitate a drug trafficking crime (as
  defined in 929(a)(2) any felony federal
  drug crime)
• (B) in connection with a crime of violence (as
  defined in 924(c)(3) a felony offense that
  has as an element the use or attempted use of
  physical force, or that by its nature involves a
  substantial risk of physical force being used
  during the offense) or
• (C) after a prior conviction under 1028 becomes
  final

33
Statutory penalties for a 1028(a) offense

• a 250,000 fine or imprisonment for not more than
  30 years, or both, if the offense is committed to
  facilitate an act of domestic terrorism (as
  defined under 2331(5)) or an act of
  international terrorism (as defined in
  2331(1))

34
Forfeiture component of 18 U.S.C. 1028

• 1028(b)(5) provides for forfeiture to the United
  States of any personal property used or intended
  to be used to commit any offense under 1028.
• Especially when investigation is assisted by a
  local agency, forfeited (or abandoned) computer
  equipment may be provided to a local agency for
  use in future investigations.
• Every 1028 charging instrument should have a
  forfeiture count.
• Every 1028 plea agreement should have a
  forfeiture or abandonment provision.

35
Forfeiture component of 18 U.S.C. 1028

• Note to accomplish criminal forfeiture, a
  separate count must be alleged against the
  specified property, setting forth the basis for
  forfeiture.
• Like a criminal count against a person, the
  forfeiture count must be proven beyond a
  reasonable doubt. In the case of a guilty plea,
  the person(s) having an ownership interest in the
  property must consent to the forfeiture count.
• Notice of the forfeiture must thereafter be
  published to ensure there are no third parties
  who desire to make a claim to the property.

36
Conspiracy component of 18 U.S.C. 1028

• 18 U.S.C. 1028(f) provides that any person who
  attempts or conspires to commit a 1028 offense
  is subject to the same penalties as those
  prescribed for the substantive offense, the
  commission of which was the object of the attempt
  or conspiracy
• This ensures that the applicable maximum penalty
  is commensurate with the offense.

37
United States Sentencing Guidelines

• Offense Level
• Base Offense Level
• Specific Offense Characteristics
• Cross References
• Aggravating/Mitigating Factors
• Acceptance of Responsibility
• Departures
• Total Offense Level
• Criminal History Category
• Applicable Advisory Sentencing Guideline Range

38
Sentencing Guidelines

• U.S.S.G. 2B1.1. Larceny, Embezzlement, and
  Other Forms of Theft Offenses Involving Stolen
  Property Property Damage or Destruction Fraud
  and Deceit Forgery Offenses Involving Altered
  or Counterfeit Instruments Other than Counterfeit
  Bearer Obligations of the United States
• (a) Base Offense Level
• 7, if the offense of conviction has a statutory
  maximum penalty of 20 years or more.
• 6, otherwise.

39
Sentencing Guidelines -- Actual penalties under
the sentencing guidelines --

• Actual guideline ranges are based primarily on
  the amount of loss (U.S.S.G. 2B1.1) prior to
  adjustments, the lowest guideline ranges based on
  ranges of loss are as follows
• If 5,000 or less 0-6 months
• If more than 5,000 but less than 10,000 0-6
  months
• If more than 10,000 but less than 30,000 6-12
  months
• If more than 30,000.00 but less than 70,000.00
  10-16 months
• If more than 70,000.00 but less than
  120,000.00 15-21 months
• If more than 120,000.00 but less than
  200,000.00 21-27 months
• If more than 200,000.00 but less than
  400,000.00 27-33 months
• If more than 400,000.00 but less than
  1,000,000.00 33-41 months
• If more than 1,000,000.00 but less than
  2,500,000.00 41-51 months
• If more than 2,500,000.00 but less than
  7,000,000.00 51-63 months
• If more than 7,000,000.00 but less than
  20,000,000.00 63-78 months
• If more than 20,000,000.00 but less than
  50,000,000.00 78-97 months
• If more than 50,000,000.00 but less than
  100,000,000.00 97-121 months
• If more than 100,000,000.00 but less than
  200,000,000.00 121-151 mos
• If more than 200,000,000.00 but less than
  400,000,000.00 151-188 mos
• If more than 400,000,000.00 188-235 months
• Even if there is no loss, however, the "floor" or
  minimum applicable guideline range, prior to
  other adjustments, will be 10-16 months in prison
  if certain circumstances exist. U.S.S.G.
  2B1.1(b)(10).

40
Sentencing Guidelines -- multiple victim
enhancement --

• U.S.S.G. 2B1.1(b) Specific Offense
  Characteristics -- multiple victim enhancement
• (2) (Apply the greater) If the offense
• (A)(i) involved more than 10, but less than 50
  victims, or (ii) was committed through
  mass-marketing, increase by 2 levels or
• (B) involved 50 or more, but less than 250
  victims, increase by 4 levels
• (C) involved 250 or more victims, increase by 6
  levels.

41
Sentencing Guidelines -- multiple victim
enhancement --

• Victim means any person who sustained any part
  of the actual loss. Person includes
  individuals, corporations, companies, etc.
  U.S.S.G. 2B1.1, comment. (n. 1).
• Actual loss means the reasonably foreseeable
  pecuniary harm that resulted from the offense.
  Reasonably foreseeable pecuniary harm means
  pecuniary harm that the defendant knew or
  reasonably should have known was a potential
  result of the offense. U.S.S.G. 2B1.1,
  comment. (n. 3(A)).
• Bottom line All persons whose means of
  identification are possessed, used or transferred
  in a 1028 offense are victims under U.S.S.G.
  2B1.1(b)(2).

42
Sentencing Guidelines -- breeder document
enhancement--

• Even if there is no loss, however, pursuant to
  U.S.S.G. 2B1.1(b)(10), the "floor" or minimum
  applicable guideline range, prior to other
  adjustments, will be 10-16 months in prison if
  the offense involves
• The possession or use of any device- making
  equipment
• The production or trafficking of any unauthorized
  access or counterfeit access device
• The unauthorized transfer or use of any means of
  identification unlawfully to produce or obtain
  any other means of identification
• The possession of five (5) or more means of
  identification that unlawfully were produced
  from, or obtained by the use of, another means of
  identification
• If the guideline range is already at least 10-16
  months, then a two level increase is appropriate.
  U.S.S.G. 2B1.1(b)(10).
• Note means of identification must be of an
  actual person. U.S.S.G. 2B1.1, comment. (n.
  9(A)).

43
Sentencing Guidelines-- breeder document
enhancement --

• U.S. v. Melendrez on a conviction under
  1028(a)(1) (unlawful production of false
  identification documents), sentence was enhanced
  for possessing five or more means of
  identification that unlawfully were produced
  from, or obtained by the use of, social security
  numbers, and for obstructing justice by
  attempting to conceal or destroy evidence.
• Even though there was no known loss to victims,
  based upon enhancements and his criminal history,
  a 30 month prison term was ordered.

44
Sentencing Guidelines misrepresentation
enhancement --

• If the resulting offense level is less than 10,
  increase to 10, or otherwise increase by 2 levels
  if the misrepresentation is
• that defendant was acting on behalf of a
  charitable, educational, religious, or political
  organization, or government agency
• during the course of a bankruptcy proceeding
• a violation of judicial or administrative order
• to a consumer in connection with obtaining,
  providing, or furnishing financial assistance for
  an institution of higher education
• U.S.S.G. 2B1.1(b)(8).

45
Sentencing Guidelines relocation or
sophisticated means enhancement --

• If the resulting offense level is less than 12,
  increase to 12, or otherwise increase by 2 levels
  if
• the defendant relocated fraudulent scheme to
  another jurisdiction to evade law enforcement or
  regulatory officials
• A substantial part of scheme occurred outside
  United States
• The offense otherwise involved sophisticated
  means
• U.S.S.G. 2B1.1(b)(9)

46
Sentencing Guidelines tremendously adverse
impact departure --

• An upward departure may be warranted "in a case
  involving unlawfully produced or unlawfully
  obtained means of identification . . . if the
  offense level does not adequately address the
  seriousness of the offense." U.S.S.G. 2B1.1,
  comment.(n.19). Possible examples
• The offense caused substantial harm to the
  victim's reputation or credit record, or the
  victim suffered a substantial inconvenience
  related to repairing the victim's reputation or a
  damaged credit record.
• An individual whose means of identification the
  defendant used to obtain unlawful means of
  identification is erroneously arrested or denied
  a job because an arrest record has been made in
  that individual's name.
• The defendant produced or obtained numerous means
  of identification with respect to one individual
  and essentially assumed that individual's
  identity.

47
Sentencing Guidelines -- Role adjustments
aggravating role --

• 3B1.1. Aggravating Role -- Based on the
  defendants role in the offense, increase the
  offense level as follows
• (a) If the defendant was an organizer or leader
  of a criminal activity that involved five or more
  participants or was otherwise extensive, increase
  by 4 levels.
• (b) If the defendant was a manager or supervisor
  (but not an organizer or leader) and the criminal
  activity involved five or more participants or
  was otherwise extensive, increase by 3 levels.
• (c) If the defendant was an organizer, leader,
  manager, or supervisor in any criminal activity
  other than described in (a) or (b), increase by 2
  levels.
• Note Federal identity theft defendants often
  play an aggravating role through supervision of
  identity theft rings or coordination of criminal
  activities.

48
Sentencing Guidelines -- Role adjustments
mitigating role --

• 3B1.2. Mitigating Role -- Based on the
  defendants role in the offense, decrease the
  offense level as follows
• (a) If the defendant was a minimal participant in
  any criminal activity, decrease by 4 levels.
• (b) If the defendant was a minor participant in
  any criminal activity, decrease by 2 levels.
• In cases falling between (a) and (b), decrease by
  3 levels.

49
Sentencing Guidelines -- Abuse of trust/special
skill --

• 3B1.3. Abuse of Position of Trust or Use of
  Special Skill
• If the defendant abused a position of public or
  private trust, or used a special skill, in a
  manner that significantly facilitated the
  commission or concealment of the offense,
  increase by 2 levels. This adjustment may not be
  employed if an abuse of trust or skill is
  included in the base offense level or specific
  offense characteristic. If this adjustment is
  based upon an abuse of a position of trust, it
  may be employed in addition to an adjustment
  under 3B1.1 (Aggravating Role) if this
  adjustment is based solely on the use of a
  special skill, it may not be employed in addition
  to an adjustment under 3B1.1 (Aggravating Role).

50
Sentencing Guidelines -- Criminal History
Categories U.S.S.G. 4A1.1 --

• The total points from the following items
  determine the criminal history category for
  purposes of the United States Sentencing
  Guidelines Sentencing Table
• (a) Add 3 points for each prior sentence of
  imprisonment exceeding one year and one month.
• (b) Add 2 points for each prior sentence of
  imprisonment of at least sixty days not counted
  in (a).
• (c) Add 1 point for each prior sentence not
  counted in (a) or (b), up to a total of 4 points
  for this item.
• (d) Add 2 points if the defendant committed the
  instant offense while under any criminal justice
  sentence, including probation, parole, supervised
  release, imprisonment, work release, or escape
  status.
• (e) Add 2 points if the defendant committed the
  instant offense less than two years after release
  from imprisonment on a sentence counted under (a)
  or (b) or while in imprisonment or escape status
  on such a sentence. If 2 points are added for
  item (d), add only 1 point for this item.
• (f) Add 1 point for each prior sentence resulting
  from a conviction of a crime of violence that did
  not receive any points under (a), (b), or (c)
  above because such sentence was considered
  related to another sentence resulting from a
  conviction of a crime of violence, up to a total
  of 3 points for this item. Provided, that this
  item does not apply where the sentences are
  considered related because the offenses occurred
  on the same occasion.

51
Sentencing Table
52
Sentencing Guidelines -- Criminal History
Categories Prior Sentence Defined

• The term "prior sentence" means any sentence
  previously imposed upon adjudication of guilt,
  whether by guilty plea, trial, or plea of nolo
  contendere, for conduct not part of the instant
  offense
• Prior sentences imposed in unrelated cases are to
  be counted separately. Prior sentences imposed in
  related cases are to be treated as one sentence.
  Use the longest sentence of imprisonment if
  concurrent sentences were imposed and the
  aggregate sentence of imprisonment imposed in the
  case of consecutive sentences.
• A conviction for which the imposition or
  execution of sentence was totally suspended or
  stayed shall be counted as a prior sentence under
  4A1.1(c) (meaning it gets 1 point).
• Where a defendant has been convicted of an
  offense, but not yet sentenced, the conviction is
  counted as if it constituted a prior sentence
  under 4A1.1(c) if a sentence resulting from that
  conviction otherwise would be countable.
• "Convicted of an offense," for the purposes of
  this provision, means that the guilt of the
  defendant has been established, whether by guilty
  plea, trial, or plea of nolo contendere.

53
Sentencing Guidelines -- Criminal History
Categories Sentence of Imprisonment Defined

• The term "sentence of imprisonment" means a
  sentence of incarceration and refers to the
  maximum sentence imposed.
• If part of a sentence of imprisonment was
  suspended, "sentence of imprisonment" refers only
  to the portion that was not suspended.

54
Sentencing Guidelines -- Criminal History
Categories Sentences counted and excluded

• Sentences for all felony offenses are counted.
  Sentences for misdemeanor and petty offenses are
  counted, except as follows
• Sentences for the following prior offenses and
  offenses similar to them, by whatever name they
  are known, are counted only if (A) the sentence
  was a term of probation of at least one year or a
  term of imprisonment of at least thirty days, or
  (B) the prior offense was similar to an instant
  offense
• Careless or reckless drivingContempt of
  courtDisorderly conduct or disturbing the
  peaceDriving without a license or with a revoked
  or suspended licenseFalse information to a
  police officerFish and game violationsGamblingH
  indering or failure to obey a police
  officerInsufficient funds checkLeaving the
  scene of an accidentLocal ordinance violations
  (excluding local ordinance violations that are
  also criminal offenses under state
  law)Non-supportProstitutionResisting
  arrestTrespassing
• Sentences for the following prior offenses and
  offenses similar to them, by whatever name they
  are known, are never counted
• HitchhikingJuvenile status offenses and
  truancyLoiteringMinor traffic infractions
  (e.g., speeding)Public intoxicationVagrancy.

55
Sentencing Guidelines -- Criminal History
Categories Offenses Committed Prior to Age
Eighteen

• If the defendant was convicted as an adult and
  received a sentence of imprisonment exceeding one
  year and one month, add 3 points for each such
  sentence.
• In any other case,
• add 2 points under 4A1.1(b) for each adult or
  juvenile sentence to confinement of at least
  sixty days if the defendant was released from
  such confinement within five years of his
  commencement of the instant offense
• add 1 point under 4A1.1(c) for each adult or
  juvenile sentence imposed within five years of
  the defendants commencement of the instant
  offense not otherwise covered.

56
Sentencing Guidelines -- Criminal History
Categories Applicable Time Period for Prior
Convictions

• Any prior sentence of imprisonment exceeding one
  year and one month that was imposed within
  fifteen years of the defendants commencement of
  the instant offense is counted. Also count any
  prior sentence of imprisonment exceeding one year
  and one month, whenever imposed, that resulted in
  the defendant being incarcerated during any part
  of such fifteen-year period.
• Any other prior sentence that was imposed within
  ten years of the defendants commencement of the
  instant offense is counted.
• Any prior sentence not within the time periods
  specified above is not counted.

57
Text of aggravated identity theft 18 U.S.C.
1028A(a)(1) (non-terrorism offense)

• Whoever, during and in relation to any
  non-terrorism-related felony violation enumerated
  in subsection (c) (over 180 felonies), knowingly
  transfers, possesses, or uses, without lawful
  authority, a means of identification of another
  person, shall, in addition to the punishment
  provided for such felony, be sentenced to a term
  of imprisonment of two (2) years.

58
Text of aggravated identity theft 18 U.S.C.
1028A(a)(2) (terrorism offense)

• Whoever, during and in relation to any
  terrorism-related felony violation enumerated in
  section 2332b(g)(5)(b) (over 100 felonies),
  knowingly transfers, possesses, or uses, without
  lawful authority, a means of identification of
  another person, shall, in addition to the
  punishment provided for such felony, be sentenced
  to a term of imprisonment of five (5) years.

59
Elements of aggravated identity theft 18 U.S.C.
1028A

• The government must prove beyond a reasonable
  doubt that the defendant
• during and in relation to any felony violation
  enumerated in subsection 1028A(c) (over 180
  non-terrorism-related felonies, including bank
  fraud, wire fraud, etc.), or section
  2332b(g)(5)(b) (over 100 terrorism-related
  felonies),
• knowingly transferred, possessed, or used,
  without lawful authority, a means of
  identification of another person
• Note that the felony committed during and in
  relation to the identity theft must also be proven

60
Restitution

• Restitution
• Justice for All Act provides for the right to
  full and timely restitution. (18 U.S.C.
  3771(a)(6)).
• Act also provides that In a case where the court
  finds that the number of crime victims makes it
  impracticable to accord all of the crime victims
  the rights described in subsection (a), the court
  shall fashion a reasonable procedure to give
  effect to this chapter that does not unduly
  complicate or prolong the proceedings. (18
  U.S.C. 3771(d)(2).
• But specialized statute may require restitution
  in certain cases (e.g., identity theft involving
  telemarketing fraud -- see 18 U.S.C. 2327(a)).
• All plea agreements should require defendant to
  pay full restitution to all victims of the
  offense.

61
The power of photographic evidenceUnited States
v. April Brissett

• Scheme to defraud numerous financial institutions
  through counterfeit check cashing operation
• She used so many identities, that she later could
  not recall using some of them
• Without photographic evidence, she would not have
  been held accountable

62
Power of surveillance photos
Photograph of April Brissett opening account in
name of Marta Curiel
63
Power of surveillance photos
Photograph of April Brissett depositing
counterfeit check into Marta Curiel account
64
Power of surveillance photos
Photograph of April Brissett withdrawing cash
from Marta Curiel account
65
Power of photographic evidence

• The real Aaron Thomas

66
Power of photographic evidence

• The imposter Aronte Kerney as Aaron Thomas

67
DMV application materialsUnited States v. Kerney

• Which documents were used to obtain the first
  Aaron Thomas license?
• Birth certificates?
• Marriage certificates?
• Check books?

68
Oregon federal case exampleU.S. v.
Massey/Melton

• Massey and Melton supervised a ring of thieves in
  1999 who
• obtained identity information by stealing mail,
  garbage and recycling material,
• by breaking into cars, and
• by hacking into web sites and personal computers.
  
• They paid for the stolen identity information
  with methamphetamine, cellular telephones
  (activated with fraudulently obtained credit
  cards), and other favors.

69
Oregon federal case exampleU.S. v. Massey/Melton

• Investigative steps
• Hilton hotel security -- parking garage
• Call to police
• Chase to 10th floor
• Arrest of Massey on ledge outside window
• Seizure of computers
• Debriefing of Massey

70
Oregon federal case exampleU.S. v. Massey/Melton

• Investigative steps
• Identification of associates
• Location of Melton
• Debriefing of Melton
• Tracking credit card applications
• Tracking credit card purchases
• Identification of victims
• Notification of victims

71
Oregon federal case exampleU.S. v. Massey/Melton

• Outcome
• Both pled guilty to conspiracy to commit computer
  fraud and mail theft (18 U.S.C. 1030(a)(4), 371
  1708)
• Both consented to the forfeiture of computer
  equipment obtained and used to commit the offense
• Massey was sentenced to serve 41 months in prison
  and ordered to pay 70,025.98 in restitution
• Melton was sentenced to serve 15 months in prison
  and ordered to pay 52,379.03 in restitution.

72
Oregon federal case exampleU.S. v. Massey/Melton

• Perhaps due to the convergence of the low and
  high tech means used to commit identity theft,
  the media took a unique interest in the case . .
  .
• Local written broadcast media
• Massey submitted to extensive interview
• New York Times Magazine article
• Massey submitted to extensive interview
• Useful in identifying him in recent identity
  theft
• NBC Nightly News with Tom Brokaw

73
Oregon federal case exampleU.S. v. Massey/Melton
74
Oregon federal case exampleU.S. v. Massey/Melton

• Epilogue the gift that keeps on giving . . .
• Massey was released in February of 2003. He
  reconnected with a former associate and organized
  a counterfeit check cashing ring using meth
  addicts to pass checks in Oregon, Nevada, and
  Arizona
• Arrested in December, 2003, due primarily to his
  interview with the New York Times Magazine . . .
• Sentenced in October, 2005 to 11 years for
  conspiracy to commit identity theft and bank
  fraud

75
How can identity theft be prevented?

• While it is extremely difficult to prevent
  identity theft, the best approach is to be
  proactive and take steps to avoid becoming a
  victim
• Only share identity information when necessary
• When in public, exercise caution when providing
  identity information
• Do not carry unnecessary identity information in
  a purse or wallet

76
How can identity theft be prevented?

• Secure your mailbox
• Do not place outgoing mail in residential mail
  boxes
• Deposit outgoing mail in locked postal collection
  boxes or at a local post office
• Promptly remove mail after it has been delivered
  to your mailbox

77
How can identity theft be prevented?

• Secure information on your personal computer
• Install a firewall to prevent unauthorized access
  to stored information
• Install anti-virus and anti-spyware software and
  frequently update
• Never open e-mail from unknown, unsolicited
  sources
• Never provide credit card or identity information
  to anyone on the Internet unless you have
  initiated the contact and it is with a vendor or
  entity familiar to you.
• Remove your name from e-mail marketing lists

78
How can identity theft be prevented?

• Keep financial and medical records in a secure
  location

79
How can identity theft be prevented?

• Shred non-essential material containing identity
  information
• All non-essential documentary material containing
  any type of identity information should be
  shredded prior to being placed in garbage or
  recycling. The best shredding is done through a
  cross-cut shredder which cuts paper into small
  pieces, making it extremely difficult to
  reconstruct documents.

80
How can identity theft be prevented?

• "Sanitize" the contents of garbage and recycling
• All non-essential documentary material containing
  any type of identity information should be
  shredded before being placed in garbage or
  recycling
• Ensure that organizations shred identity
  information
• Many businesses, firms, and medical facilities
  are not sensitive to privacy issues arising from
  discarded material. Many of these entities
  regularly dispose of material containing customer
  identity information, i.e. customer orders,
  receipts, prescription labels, etc., into garbage
  cans, dumpsters, or recycling bins without
  shredding the material.

81
How can identity theft be prevented?

• Remove your name from mailing (conventional mail
  e-mail) lists
• Carefully review financial statements
• Promptly review all bank and credit card
  statements for accuracy. Pay attention to
  billing cycles. A missing bill may mean a thief
  has taken over an account and changed the billing
  address to avoid detection. Report any
  irregularities to the bank or credit card company
  immediately.
• Periodically request copies of credit reports

82
Should you become a victim of identity theft . . .

• Immediately contact the fraud departments of each
  of the three major credit bureaus (Equifax,
  Experian, and Trans Union) and place fraud
  alert on your file
• inform the representative of the identity theft,
  and request that a "fraud alert" be placed on
  your file, as well as a statement asking that
  creditors call you before opening any new
  accounts
• request longest alert possible
• This should stop any ongoing fraud and prevent
  future unauthorized opening of accounts

83
Should you become a victim of identity theft . . .

• Request from credit bureaus free copy of credit
  report to identify any unauthorized transactions
• Information on unauthorized transactions should
  be shared with USAO and investigative agency for
  loss and restitution purposes
• Note that Fair and Accurate Credit Transactions
  Act (FACTA) amended Fair Credit Reporting Act to
  allow identity theft victims two free copies of
  their credit report within 12 months of reported
  theft, and every consumer one free copy of credit
  report once a year

84
Should you become a victim of identity theft . . .

• Contact the security or fraud departments for any
  creditors of accounts in which fraudulent
  activity occurred and immediately close accounts
  that have been tampered with and open new ones
  with new Personal Identification Numbers (PINs)
  and passwords.

85
Should you become a victim of identity theft . . .

• File a report with a local police department or
  the police department where the identity theft
  occurred, if that can be determined.
• obtain a copy of the police report in the event
  creditors need proof of the crime.
• If filing a police report is a challenge due to
  resistance by police agency, there are
  alternatives
• FTC identity theft affidavit (available online at
  www.consumer.gov/idtheft)
• Company-provided affidavit

86
Should you become a victim of identity theft . . .

• File a complaint with the Federal Trade
  Commission (FTC) at www.consumer.gov
• Information may be shared with law enforcement
  through Consumer Sentinel
• If the theft involved Internet fraud, file a
  complaint with the Internet Crime Complaint
  Center at www.ic3.gov
• Information may be shared with law enforcement
  through interactive database

87
Should you become a victim of identity theft . . .

• Certain situations may require certain additional
  action by the victim.
• If public agencies have enforcement or oversight
  responsibilities, they should be notified
• Postal Inspection service for mail theft
• SEC for securities fraud
• FCC for telecommunications fraud
• Social Security Administration for Social
  Security fraud
• IRS for tax fraud
• State Department for passport fraud
• DMV for driver's license fraud
• Likewise, if other entities or businesses may
  have been affected, notify them e.g. if someone
  has stolen a health insurance card, the theft
  should be reported to the insurer. Subsequent
  insurance statements should be reviewed for
  fraudulent billing.

88
Should you become a victim of identity theft . . .

• Maintain file of all actions and correspondence
• Notification of credit bureau request for fraud
  alert
• Copy of credit report
• Notification of creditors account closings
• Copy of police report
• Receipt of documentation from affected parties

89
Any questions?
90
On-line Identity Theft applicable federal
statutes and preventive measures
Sean B. Hoar sean.hoar_at_usdoj.gov 541-465-6792
(voice)