Monday, December 23, 2013

The Liquor Store, Identity Fraud and "Persons"

A jury convicted Rodolfo Lara Martinez “of five counts of forgery in the first degree and two counts of identity fraud”, but the judge later reversed the conviction “on one of the two counts of identity fraud” when he ruled on Martinez’s motion for a new trial.  Martinez v. State, __ S.E.2d __ , 2013 WL 6097947 (Georgia Court of Appeals 2013).

The opinion notes that the judge reversed the second count of identity fraud because he found that the evidence presented at trial was insufficient to prove beyond a reasonable doubt that Martinez committed identity fraud with the second alleged victim – Staffing Zone. Martinez v. State, supra.  The surviving identity fraud count was based on the allegation that Martinez obtained and used “the bank account number of the corporate victim, Labor Staffing, Inc.”  Martinez v. State, supra.

This, according to the opinion, is how the prosecution arose:

[T]he evidence shows that on August 14, 2007, Martinez attempted to cash a check at Tower Package Store. The check, dated August 10, 2007, purported to be a payroll check issued by Labor Staffing, Inc., and payable to Martinez in the amount of $139.36. 

The cashier followed the store's usual practice by attempting to access Martinez's information on her computer, but instead she received instructions to immediately contact store security. The security officer determined that, according to the computer-generated information, the check was fraudulent, and so he detained Martinez and notified the DeKalb County Police.

When the responding detective arrived, the security officer gave him copies of four checks that had been previously cashed at the store by Martinez, but that had been returned by the bank as counterfeit. And after the detective arrested Martinez and read him his Miranda rights, Martinez claimed he was `paid that money for doing construction work.’ 

But when the detective offered to drive Martinez to any location where he performed work in order to confirm his story, Martinez was unable to remember any work location or name, address, or telephone number associated with his alleged employers.

At trial, the evidence showed that Martinez previously cashed four checks at the Tower Package Store dated May 25, May 26, May 29, and June 2, 2007, in the amounts of $98.76, $97.86, $148.61, and $146.64, respectively. All four checks purported to be payroll checks issued by Staff Zone, Inc. 

But according to Staff Zones's manager, the company did not issue any payroll checks to Martinez. The manager also examined photocopies of the checks purported to have been issued by Staff Zone and testified that they were not, in fact, company checks.

And as to the check purported to have been issued by Labor Staffing, Inc., and which Martinez attempted to cash at Tower Package Store on August 14, 2007, Labor Staffing's employee in charge of accounting and payroll testified that it was not an authentic corporate check and that the real check bearing the same check number had already been issued by the company to another person in a different amount.

Martinez v. State, supra.

On appeal, Martinez challenged his convictions for both crimes.  The Court of Appeals rejected his challenges to his conviction for forgery in the first degree for reasons that are not relevant to the issues addressed in this post.  Martinez v. State, supra.  It focused on his challenges to the identity fraud convictions. Martinez v. State, supra. 

Basically, Martinez argued that (i) “the crime of identity fraud, as applicable to the August 2007 incident at issue, protected only the identifying information of natural persons and not corporations” and (ii) his defense attorney was ineffective because he did not object to how the trial judge instructed the jury on the elements of identity fraud and/or because he did not take actions to challenge his convictions on the identity fraud counts.  Martinez v. State, supra (emphasis in the original).  

As I noted in an earlier post, most identity theft/identity fraud statutes make it a crime to steal a real person’s identity and do not encompass identify theft targeting corporations and other artificial entities.

The Court of Appeals began its analysis of Martinez’s first argument by explaining that

[i]t is undisputed that before May 24, 2007, a victim of the crime of identity fraud was not limited to natural persons. Under [Georgia Code] § 16–9–121(1), as amended in 2002, a person committed identity fraud if, inter alia, he or she `with the intent unlawfully to appropriate resources of or cause physical harm to that person . . . [o]btains or records identifying information of a person which would assist in accessing the resources of that person or any other person.

Under [Georgia Code § 16–1–3], which contains the definitions of certain words used in Title 16, and which has not been amended since 1982, a `person’ is `an individual, a public or private corporation, an incorporated association, government, government agency, partnership, or unincorporated association.’ Thus, a `person,’ which was not separately defined for purposes of the article governing identity fraud, necessarily included corporate victims before May 24, 2007.

And under the current version of the statute, a person commits the crime of identity fraud when, inter alia, `he or she willfully and fraudulently . . . [w]ithout authorization or consent, uses or possesses with intent to fraudulently use identifying information concerning a person.’  Again, in light of the definition of the term for purposes of Title 16, there is no doubt that a `person’ encompasses corporate victims.

Martinez v. State, supra (emphasis in the original).

The court then noted that

in August 2007, when Martinez used the identifying information of Labor Staffing, the law provided that a person commits the offense of identity fraud when, as applicable here, `he or she willfully and fraudulently . . . [w]ithout authorization or consent, uses or possesses with intent to fraudulently use, identifying information concerning an individual.

And unlike `person,’ there is no definition for `individual’ in Title 16. The question squarely presented, then, is whether the fraudulent use or possession of the identifying information of a corporation was punishable as the crime of identity fraud under [Georgia Code] § 16–9–121 (2007).

Martinez v. State, supra (emphasis in the original).

The Court of Appeals then explained that

as with any question of statutory interpretation, we necessarily begin our analysis with familiar and binding canons of construction. Indeed, in considering the meaning of a statute, our charge as an appellate court is to `presume that the General Assembly meant what it said and said what it meant.’ And toward that end, we must afford the statutory text its plain and ordinary meaning, consider the text contextually, and read the text `in its most natural and reasonable way, as an ordinary speaker of the English language would.’ 

In sum, where the language of a statute is plain and susceptible of only one natural and reasonable construction, `courts must construe the statute accordingly.

Martinez v. State, supra (quoting Deal v. Coleman, 2013 WL 6050665 (Georgia Supreme Court 2013).

The court began that task by pointing out that

[i]n the case sub judice, we first consider the ordinary meaning of `individual,’ as it is not a term of art or a technical term. In its common meaning, an `individual’ is an actual human being.  

And this appears to be the way `individual’ is used in the definition of “person” in [Georgia Code] § 16–1–3(12), so as to differentiate a natural person from other entities, such as corporations. [Georgia Code] § 16–9–121 (2007) also used the term `person,’ but in the context of the perpetrator or in the context of fraud committed `on another person,’ but not in the context of the victim whose identifying information was being used or possessed. This, of course, is entirely consistent with the General Assembly having intended that `individual’ refer to a natural person, not a corporation.

Martinez v. State, supra.

The Court of Appeals also found that

[f]urthermore, and of some significance, when the General Assembly again changed the law in 2010, it was `[t]o amend Article 8 of Chapter 9 of Title 16 of the Official Code of Georgia Annotated, relating to identity fraud, so as to revise  a term so as to include businesses as potential identity theft victims.

And tellingly, the law was then amended so as to substitute `person’ for `individual’ in the text of [Georgia Code] § 16–9–121(a)(1), (4), and (5). It follows, then, that no rational trier of fact could have found beyond a reasonable doubt that Martinez committed the crime of identity fraud against `an individual’ by using the identifying information of Labor Staffing, a corporation, in a manner otherwise prohibited by [Georgia Code] § 16–9–121 (2007).

Martinez v. State, supra (emphasis in the original).

The Court of Appeals therefore held that “Martinez's identity-fraud conviction must be reversed, and Martinez's claims that his trial counsel rendered ineffective assistance are moot.” Martinez v. State, supra.

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