Supreme Court to Review Identity Theft Charges in Undocumented Worker Cases

By TChris, Section Supreme Court
Posted on Mon Oct 20, 2008 at 12:37:00 PM EST
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The Bush administration's recent "get tough" philosophy with regard to undocumented workers (as opposed to its more lenient attitude toward the employers who hire them) might soon require revision. In the past, undocumented workers were deported but usually were not aggressively prosecuted, at least if they had not reentered the country after an earlier deportation. The most recent approach is to charge or threaten to charge identity theft if the worker obtained employment by using another person's name and social security number.

The workers who acquire false documents do not necessarily know whether they are using a real or a fictitious identity. The government insists that it need not prove the worker's knowledge that he or she has misappropriated a real identity. Some courts have agreed with the government while others have held that identity theft requires proof that the worker knew the fraudulent documents contained a real person's information.

[more ...]

The Supreme Court today agreed to resolve that conflict. If it holds (as it should) that Congress did not intend serious penalties to be imposed upon someone who didn't know that his actions might harm a real person, the government's ability to bring identity theft charges against undocumented workers will be hampered. That would require the Justice Department to rethink its tactics, and perhaps return to a more reasonable approach to the enforcement of immigration law violations.

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Supreme Court to Review Identity Theft Charges in Undocumented Worker Cases | 29 comments (29 topical)

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ID (5.00 / 1) (#24)
by Nana on Mon Oct 20, 2008 at 06:13:30 PM EST

Are you kidding me???? Here is a clue for ya....if it's not your name on the documents they don't belong to you. OMG how stupid.

Is it not obvious? (5.00 / 1) (#25)
by Abdul Abulbul Amir on Mon Oct 20, 2008 at 06:47:11 PM EST

Congress did not intend serious penalties to be imposed upon someone who didn't know that his actions might harm a real person

Is it not obvious that using a fake ID might harm a real person? Just as shooting into a crowd might harm a real person or might harm no one, using a made up Social Security Number might harm someone or no one as well.

I wonder of the buyers of the fake docs (5.00 / 1) (#26)
by sarcastic unnamed one on Mon Oct 20, 2008 at 07:00:42 PM EST

give a sh1t whether using fake docs might harm a real person.


: Probably not (none / 0) (#28)
by Abdul Abulbul Amir on Mon Oct 20, 2008 at 07:53:12 PM EST

But reckless disregard for consequences seems a thin excuse.

"Might" is not the question (5.00 / 1) (#27)
by Peter G on Mon Oct 20, 2008 at 07:52:20 PM EST

TChris was a little careless with this wording there, which led to your very reasonable reaction, A3. What turns the ordinary federal crime of identity theft into "aggravated identity theft" -- with the draconian penalty attached -- is the defendant "intentionally" using a means or form of identification of "another person." Just knowing that it might be another's ID (and not caring) isn't enough. That's called "recklessness" in the law, and while it may be criminal it's almost always treated less seriously than "intentional" conduct. The Supreme Court has agreed to take up and analyze the requirements for aggravated identity theft.


: I. C. (none / 0) (#29)
by Abdul Abulbul Amir on Mon Oct 20, 2008 at 07:54:49 PM EST

Social Security is not to be used as ID (4.66 / 3) (#7)
by jerry on Mon Oct 20, 2008 at 01:11:46 PM EST

So my take on this: the problem is with not enough people screaming that Social Security is not to be used as ID.

As a nation, we should decide once and for all if we want a national ID. I say no thank you. But the end run that so many government and non-government agencies have of using your SSN as an ID is unworkable as well as illegal. (I don't know about the illegal part, but I am pretty sure.)

It's unworkable, because the gazillion flaws in using SSN as it currently is implemented have been documented in the tech community for over 20 years. One example: there is no checksum and there aren't enough numbers, so it's easy to make up an SSN, hard to determine it's made up, and easy for that made up SSN to hit on someone else's record.

As a victim of identity theft, TChris, frankly, I have very little sympathy for people who engage in it in any way.

On the other hand, SSNs ARE NOT AN ID AND ARE UNWORKABLE AS GOOD IDS.

: It even says so.... (none / 0) (#11)
by kdog on Mon Oct 20, 2008 at 01:28:44 PM EST

right on the card! I quote..."Not to be used for identification purposes".
But it looks like the new ones don't say that anymore....very interesting. The guy from straightdope.com says it meant the physical card itself wasn't meant to be used for identification purposes, but the number always was. Likely story:)
Regardless, it feels like you can't use a public restroom without somebody asking for your ss number....why not just tattoo it on our foreheads at birth if this is how we wanna live, or go by numbers instead of names.
Citizen 0*7-6*-**56 signing out:)

A nine digit number... (4.50 / 2) (#6)
by kdog on Mon Oct 20, 2008 at 01:09:42 PM EST

is not an identity...it's a 9 digit number.

Ya tell me I need a 9 digit number to work and therefore eat, I'm coming up with a 9 digit number one way or the other.

Wow. (4.50 / 2) (#9)
by sarcastic unnamed one on Mon Oct 20, 2008 at 01:17:17 PM EST

The workers who acquire false documents do not necessarily know whether they are using a real or a fictitious identity.

For anyone who thinks illegal workers don't know they're buying false docs, well, I have a bridge to Brooklyn for sale. Cheap.

Isn't the point that the buyer (5.00 / 3) (#10)
by oculus on Mon Oct 20, 2008 at 01:24:59 PM EST

knows it isn't his or her true identity but doesn't necessarily "know" whether the identity is that of a real or fake "other" person?


Fair enough, you are correct. (5.00 / 2) (#20)
by sarcastic unnamed one on Mon Oct 20, 2008 at 01:56:02 PM EST

My (revised) point is that if you are an illegal worker and you buy docs in some shady back-alley scheme that allow you to "skirt" the law, by definition the docs you bought are fictitious and you know it.

But you are right, I read too quickly.

The thread is about whether the purchaser of the illegal docs knows whether or not the docs are based on information "stolen" from an actual citizen or "merely" made up out of whole cloth.

Either way it's illegal, but, as others pointed out, apparently the specifics of "identity theft" require intent.


Correct (none / 0) (#13)
by Steve M on Mon Oct 20, 2008 at 01:37:49 PM EST

There are a probably quite a few people who know they are buying a fake identity but have no idea that the information actually belongs to a real person.


Although, wouldn't anyone be mightily (none / 0) (#16)
by oculus on Mon Oct 20, 2008 at 01:42:37 PM EST

miffed if the purchased fake identity docs. didn't pass the SSN/employer test? But no remedy.


: Well (none / 0) (#17)
by Steve M on Mon Oct 20, 2008 at 01:43:25 PM EST

I assume, without knowing, that the black market has its own variety of market-based solutions.

Yes, Oculus (none / 0) (#14)
by Peter G on Mon Oct 20, 2008 at 01:37:59 PM EST

Exactly.


That's correct (none / 0) (#15)
by scribe on Mon Oct 20, 2008 at 01:38:42 PM EST

there are more nine-digit SSNs than there have ever been Americans. So the number could very easily have been an "unused" number, not belonging to anyone.


Wow, Indeed (5.00 / 1) (#18)
by sj on Mon Oct 20, 2008 at 01:51:12 PM EST

Your comment has nothing to do with the statment you quoted.

You realize that, right? After you read it again?


Identity Theft sucks... (4.50 / 2) (#23)
by Dee77 on Mon Oct 20, 2008 at 06:00:40 PM EST

I'm of latin decent and I didn't worry to much about these things until it happened to my younger brother, his "identity" was used. The scariest part of it was when we saw a picture of the persons I.D. and it had all of my brother's information on it up to his D.O.B. It wasn't fun at all especially since it took over a month to get all of it worked out. They were about to start garnishing his wages because of the amount of money this person made one year and didn't do his taxes so they were accusing my brother of not reporting it. It was very frustrating and made me look at this situation in a different light.

It's unfortunate what happened to all these people and there are a lot of hard workers and people who want to make a better life for themselves. But what about all the ones that don't. Those are the ones that are ruining it for everyone else.

Not a good idea.... (1.00 / 1) (#22)
by ID Liberal on Mon Oct 20, 2008 at 02:52:43 PM EST

SSN's are indeed used to identify us in a number of ways: paying taxes, credit reporting, and through our companies for payroll purposes. Although in the database the identifying number is cross-referenced with a SSN. SSN identifies us as US citizens. There's is always going to be a debate over using SSN, but I think the point here is not using SSN's as identification, but illegal immigration and a back-handed way to deal with the issue. So rather than having a ridiculous law and spending tax payer dollars trying cases like this or kicking out the hard working illegal's who let me see, have jobs and contribute to our economy, we should kick them out, and penalize the companies who employee them?

How about instead getting them at least registered, get them a tax ID number, so they can work LEGALLY AND PAY TAXES! If we did that then we could elminate those whose intent was not for fraud, but to be able to work. Then there would not be a need for interpretation or guess work for those who are using SSN for identity theft or to hide thier true identity, and therefore intent would be innate.

I believe that our current system sets up a system of deception and illegal activity for those people who legitimately want to make a better life for themselves but are in the country illegally.

Do our elected leaders have any common sense left?

As a non-lawyer, I have a hard time understanding (none / 0) (#1)
by imhotep on Mon Oct 20, 2008 at 12:44:31 PM EST

how they will prove or disprove that the worker had or did not have knowledge that the false documents contained information about a real person.

Exactly (none / 0) (#2)
by CST on Mon Oct 20, 2008 at 12:51:15 PM EST

You can't. And as we all know "innocent until proven guilty". So the responsibility of proof is on the accuser not the accused. You don't have to "disprove" anything.


: It's rather simple (none / 0) (#5)
by scribe on Mon Oct 20, 2008 at 12:57:27 PM EST

you charge someone under a statute with a massive prison exposure - five, six, eight years - for a paperwork issue. Then you offer him a reduced sentence - three months, whatever - if he pleads out.
In practical terms, he's an idiot to take the case to trial.
This defendant did take it to trial, likely because he was in fact innocent. But, the problem is that over the years many doctrines have grown up to support the proof of someone's knowledge and intent. These all manage, in one way or another, to allow the proof that someone who is not obligated to say anything in his defense knew something, without his saying anything.
So, for example, by operations of these doctrines you can be convicted of knowingly possessing dope if someone asks you to drive a car for them from Town A to Town B, and the car has a trunkload of stuff, which you never see and never actually know is there.
Your guarantee of innocent until proven otherwise and not having to say anything is, in practical terms, pretty meaningless.
Sorry.

This statute is the one which DoJ and ICE (none / 0) (#3)
by scribe on Mon Oct 20, 2008 at 12:52:06 PM EST

used to justify coercing pleas from all the workers they arrested in the Postville, Iowa mass raid on the packing plant earlier this year. That raid was both the template for more mass raids and mass deportations after criminalizing the immigrant workers, and of much comment here and elsewhere.

In short, there's a significant penalty in the statute for those who choose to challenge their being coerced to plead to a lesser offense - a massively greater sentence exposure if they insist on a trial.

And, for those who should return to the US after being deported, a significantly enhanced sentence for illegally entering (or attempting to enter) the US.

So, this is a mightily important case. If the S.Ct. comes down in favor of the government, it will be putting its imprimatur on those mass raids, mass detentions and similar police state tactics.

silly me, (none / 0) (#4)
by cpinva on Mon Oct 20, 2008 at 12:53:06 PM EST

i always thought that the state had to prove, at minimum, that there was an intent to commit a crime. that is, that you knew, or reasonably should have known, that your act was illegal.

granted, this makes it tougher on the state to prove it's case, but (for the moment anyway), the burden is still the state's, not the individual charged.

Maybe not silly, (5.00 / 1) (#19)
by Peter G on Mon Oct 20, 2008 at 01:52:14 PM EST

but incorrect, nonetheless. Criminal law very rarely requires knowledge that your act was illegal. "Ignorance of the law is no excuse" is in fact the general rule. I was able to beat the odds and win a "knowledge that one's conduct is illegal" (not necessarily criminal, but at least illegal) ruling from the Supreme Court in 1994 in Ratzlaf v United States (I wrote the brief; didn't give the oral argument) by 5-4 vote. That was because the conduct was not inherently "morally wrongful" (among other arguments we had). (The offense was structuring bank transactions of over $10,000 to evade the bank's "cash transaction" reporting requirement.) Normally, all the criminal law requires is knowledge that one is engaging in certain conduct, and/or the intent to engage in that conduct, and that the conduct in question corresponds with what the Legislature (such as Congress) has made illegal. Sometimes, an intent to accomplish a certain purpose or effect (called "specific intent") is also required. Here, the worker knows that the ID is false, and knowingly/intentionally uses that false ID (a relatively minor crime); the government wants to get out of proving that the worker intends to use the ID "of another person," which makes it identity theft (a major crime). Since knowingly using a false ID is at least dishonest (thus, morally wrongful), I don't think it would qualify as conduct where the govt would have to prove knowledge of illegality.


: Congratulations on your winning brief. (none / 0) (#21)
by oculus on Mon Oct 20, 2008 at 01:58:53 PM EST

Quite an accomplishment.

Some crimes, (none / 0) (#12)
by eric on Mon Oct 20, 2008 at 01:35:50 PM EST

like statutory rape, don't require intent. There are a few, but you are right, here, intent does appear to be an element.


Here's the statute in question: (none / 0) (#8)
by oculus on Mon Oct 20, 2008 at 01:12:40 PM EST

18 USC 1028A