Wednesday, March 20, 2013

Aggravated Identity Theft and Purchasing Personal Identifying Information

As Wikipedia notes, identity theft “is a form of stealing someone’s identity in which someone pretends to be someone else by assuming that person's identity, typically in order to access resources or obtain credit and other benefits in that person's name.” 

Federal law creates two identity theft crimes:  Section 1028(a) of Title 18 of the U.S. Codemakes it a crime, essentially, to possess, transfer or use someone else’s personal identifying information under any of various circumstances, one of which is committing or aiding and abetting a federal crime or a felony under state law. Section 1028A of Title 18 of the U.S. Code creates the crime of “aggravated identity theft,” which consists of using or possessing another person’s personal identifying information in committing any of a series of specified federal felonies or a crime of terrorism under 18 U.S. Code § 2332b. 

This post examines a case in which the defendant challenged his conviction under 18 U.S. Code § 1028A.  U.S. v. Lumbard, __ F.3d __, 2013 WL 452512 (U.S. Court of Appeals for the 6th Circuit 2013).  This, according to the opinion, is how the case arose:

On June 24, 2009, [Nathan] Lumbard was arrested by state authorities in Michigan on two warrants, which included charges of breaking and entering, destruction of a building, and larceny. He was released on a $100,000 bond. Other . . . warrants charged [him] with aggravated battery, obstruction of justice, receiving stolen property and other crimes. In July 2009, a St. Joseph County Sheriff's Deputy attempted to arrest Lumbard pursuant to another warrant, but [he] fled on foot and successfully evaded arrest. . . .

Lumbard was introduced to Justin Cheesebrew by a mutual acquaintance who believed [they] resembled one another. . . Lumbard agreed to purchase Cheesebrew's driver's license, social security number and birth certificate for $500. However, when [he] purchased the information, Cheesebrew merely told him his birth date and social security number and did not provide Lumbard with his social security card or birth certificate. He did . . . respond to Lumbard's questions about his place of birth and identifying information about his parents.

U.S. v. Lumbard, supra.

As the opinion further explains, Lumbard used this information to apply for a

driver's license and obtain a copy of Cheesebrew's birth certificate at the Ingham County Clerk's Office. He also submitted an application for a United States Passport in Cheesebrew's name, using the driver's license and birth certificate he obtained from the Ingham Clerk as proof of identification. Lumbard listed Cheesebrew's information for all portions of the passport application except for the address to which the passport would be sent, where he listed his father's address.

He paid a fee for his application to be expedited and received a passport with Cheesebrew's information but his photograph in August 2009. He flew from Los Angeles to Tokyo and later traveled to Thailand and Burma. Before leaving for Tokyo, Lumbard placed a suitcase with an attached suicide note on a bridge near Cairo, Illinois. 

He left a voice mail for a St. Joseph County Sheriff's deputy explaining they would find him shortly and they could `kiss [his] cold, white, wet a* *.’ Authorities searched the river near the bridge where the suicide note was found for Lumbard's body.

In January 2011, Lumbard was located by the Department of State Diplomatic Security Service in Burma. They informed Burmese officials that Lumbard was traveling under an assumed name and requested authorities arrest him. Burmese officials arrested him in January 2011 and returned him to United States custody.

According to a report by the Diplomatic Security Service, Lumbard told Burmese officials to transport him to Bangkok rather than the United States, and attempted to stab a Burmese officer with an improvised knife when they refused. [He] was escorted by some twenty Burmese officers to the airport, with Lumbard screaming he was being kidnapped. Lumbard claims he attempted to stab the Burmese official because he wanted to be charged in Burma, which would have prevented his extradition.

U.S. v. Lumbard, supra.

“Once back in the United States,” Lumbard was charged with

falsely representing information in an application for a passport and knowingly providing false identifying documents in violation of18 U.S. Code § 1542. He was also indicted for using the name, social security number, date of birth, and driver's license of another person to obtain a passport in violation of 18 U.S. Code § 1028A(a)(1) and (c)(7). 

U.S. v. Lumbard, supra.  The § 1028A count charged him, essentially, with transferring, possessing or using, without lawful authority, “a means of identification of another person” in committing a felony concerning federal law relating to “passports and visas.” 

Lumbard moved to dismiss the § 1028A count, but the federal district court judge denied his motion.  U.S. v. Lumbard, supra.  Lumbard then pled guilty to both charges but “reserved the right to appeal the district court judge’s denial of his motion to dismiss the aggravated-identity-theft-charge.”  U.S. v. Lumbard, supra.  The judge then sentenced Lumbard to “24 months on both counts to be served consecutively for a total of 48 months” and a “$30,000 fine.”  U.S. v. Lumbard, supra. 

On appeal, Lumbard renewed his argument that the § 1028A charge should have been dismissed as legally insufficient.  U.S. v. Lumbard, supra.  The Court of Appeals began its analysis by explaining that 18 U.S. Code § 1028A imposes a sentence of two years

of imprisonment on a defendant who `during and in relation to a felony violation enumerated in subsection (c), knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person.’ 

Lumbard argues the phrase `without lawful authority’ excludes cases, such as this one, where a defendant obtains a person's consent to use his or her information unlawfully; that is, Lumbard urges we take the section title `Aggravated Identity Theft’ literally and read the statute to require actual theft. 

U.S. v. Lumbard, supra. 

In making this argument, Lumbard relied on the Supreme Court’s decision in Flores-Figueroa v. U.S., 556 U.S. 646 (2009), which I discussed in an earlier post. He argued that in Flores-Figueroa the Supreme Court limited § 1028A to theft:

Flores–Figueroa analyzed whether the government must prove a defendant charged with violating § 1028A knew the means of identification he used belonged to a real individual. A circuit split had developed between courts that held § 1028A did not require a defendant know the information he misuses belongs to a real individual, rather than being fake information . . . and courts that concluded the statute required such knowledge, which would be more appropriately called `theft.’. . .

U.S. v. Lumbard, supra. 

As the Court of Appeals noted, the Flores-Figueroa Court “agreed with the latter view, and concluded § 1028A requires the government prove a defendant knows the identifying information he misuses belongs to a real individual.” U.S. v. Lumbard, supra.  For more on the Court’s ruling, check out this post.

Here, Lumbard argued “at length” that Flores-Figueroa should

control our decision here. Before Flores–Figueroa, Lumbard notes, those circuits that held in favor of the government's position did so by implicitly or explicitly rejecting the view § 1028A meant to target theft; . . . the circuits with whom the Supreme Court agreed in Flores–Figueroa based their conclusion on § 1028A's focus on theft, rather than mere fraud. . . . 

Lumbard suggests, when the Supreme Court chose sides in Flores-Figueroa, it concluded that § 1028A only applied to instances of theft and does not apply to cases where a defendant has permission to misuse another's identifying information.

U.S. v. Lumbard, supra. 

The Court of Appeals found that while Flores-Figueroa was “material to our analysis,”

it did not answer the question currently before us. . . . Flores–Figueroa analyzed § 1028A to determine the mens rea required for commission of the offense, which is not at issue here. The Court's focus on fraud versus theft is instructive, but not determinative. 

Rather, our task is to determine the meaning of the phrase `without lawful authority’ and whether it includes instances where an individual gives his identifying information to a defendant with permission to misuse it. . . .

U.S. v. Lumbard, supra. 

The Court of Appeals explained that when it analyzes what the language of a statute means, its starting point is the “language of the statute itself.  U.S. v. Lumbard, supra. 

With respect to the plain language of the statute, Lumbard relies primarily on the word `theft’ in the title of the statute and the fact that [it] refers specifically to the identifying information of `another person.’ Requiring the information belong to another person, Lumbard reasons, means the lawful authority must also be provided by that person, rather than by a governmental entity. 

The government, on the other hand, points to the use of the phrase `lawful authority’ rather than `permission’ and argues the former was chosen to encompass broader activity than the latter. Further, the statute also prohibits transferring, possessing, or using a means of identification, which encompass more than just `theft.’ 

The government also notes that Lumbard's reading of the statute would prevent the prosecution of individuals who lawfully possess identifying information, such as a creditor who obtains an applicant's social security number, but then unlawfully misuse the information.

U.S. v. Lumbard, supra. 

The court explained that when a statute contains an undefined term, courts charged with interpreting the statute should give the term its “ordinary and natural meaning.”  U.S. v. Lumbard, supra.  As to what that involves, the Court of Appeals explained that

Black's Law Dictionary defines `lawful’ rather tautologically as `not contrary to law,’ and defines `authority’ as `[t]he right or permission to act legally on another's behalf.’ Black's Law Dictionary 152 & 965 (9th ed. 2009. . . . Neither of those words is confined to permission.

Rather, one could have lawful authority without permission, such as a parent who obtains a passport for a child who stubbornly refuses to accompany the family on summer vacation. Similarly, as is the case here, one could have permission to use an individual's identifying information, but that permission itself does not confer lawful authority to misuse the information. 

To strain the parent-child example, even if the child gives permission to his mother to use his information in, for example, a fraudulent credit application, the mother has not acted with `lawful authority’ even with the child's permission.

That is true both because its use is still `contrary to law’ and because the permission has not afforded `the right or permission to act legally’ on the child's behalf. 

Because § 1028A only applies when the information is used in connection with one or more of the enumerated felonies, permission will never be sufficient to avoid its application.

U.S. v. Lumbard, supra. 

As further support for the conclusion it was reaching, the court noted that its reading of

1028A is consistent with our decision in U.S. v. Mobley, 618 F.3d 539 (U.S. Court of Appeals for the 6th Circuit 2010), where we analyzed § 1028A as applied to a husband who submitted fraudulent credit applications using his wife's information. . . 
[W]e concluded that `a defendant's use of any social security number -- including his own -- to submit fraudulent credit applications must be “without lawful authority.”’ . . . Further, six other circuits to hear this issue have concluded that § 1028A extends beyond mere theft. 

U.S. v. Lumbard, supra (emphasis in the original).

The court therefore held that “the phrase `without lawful authority’ in § 1028A is not limited to . . . theft, but includes cases where the defendant obtained the permission of the person whose information the defendant misused.” U.S. v. Lumbard, supra.  It therefore affirmed Lumbard’s conviction and sentence.  U.S. v. Lumbard, supra. 

If you would like to read more about the facts in the case and see a photo of Lumbard, check out the news story you can find here.   

And I realize this case does not itself involve the use of computer technology.  Despite that, I decided to do a post on the opinion because the court's holding can impact aggravated identity theft cases that do involve the use of such technology.

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