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Title: 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

3
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.

7
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.

8
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 .
    . .

9
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

10
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.

11
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

16
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

17
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

18
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

21
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

23
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

24
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.

25
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))

28
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

29
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

30
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

32
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 driving Contempt of
    court Disorderly conduct or disturbing the
    peace Driving without a license or with a revoked
    or suspended license False information to a
    police officer Fish and game violations Gambling H
    indering or failure to obey a police
    officer Insufficient funds check Leaving the
    scene of an accident Local ordinance violations
    (excluding local ordinance violations that are
    also criminal offenses under state
    law) Non-support Prostitution Resisting
    arrest Trespassing
  • Sentences for the following prior offenses and
    offenses similar to them, by whatever name they
    are known, are never counted
  • Hitchhiking Juvenile status offenses and
    truancy Loitering Minor traffic infractions
    (e.g., speeding) Public intoxication Vagrancy.

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 evidence United 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 materials United States v. Kerney
  • Which documents were used to obtain the first
    Aaron Thomas license?
  • Birth certificates?
  • Marriage certificates?
  • Check books?

68
Oregon federal case example U.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 example U.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 example U.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 example U.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 example U.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 example U.S. v. Massey/Melton
74
Oregon federal case example U.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)
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