Fixing Flores: Assuring Adequate Penalties For Identity Theft and Fraud

Backgrounder Center for Immigration Studies
January 2010
Fixing Flores
Assuring Adequate Penalties for
Identity Theft and Fraud
By Janice Kephart
T
his Backgrounder proposes statutory language fixes to federal identity theft and aggravated felony language
in 18 U.S.C. §§ 1028 and 1028A to reverse the practical implications of the May 2009 Supreme Court
ruling in Flores-Figueroa v. United States.1 Flores crippled prosecutors’ longstanding practice of using the
aggravated identity theft statute by requiring that prosecutors now also prove that a defendant knew he was using
a real person’s identity information, as opposed to counterfeit information not connected to an actual person.
The statute is an important tool for immigration enforcement. Proving a defendant’s knowledge about his crime
is always difficult, and impossible in some cases, even where there is substantial harm and clear victims. This is
especially the situation with illegal aliens who buy identity information from third parties. The inevitable result
of the Flores decision is to enable perpetrators an easy defense and to tie prosecutors’ hands. The defendant in the
case was an illegal alien working at a steel plant in Illinois.
The fixes proposed in this report attempt to encapsulate the original intent of Congress when it broad-
ened federal criminal identity theft law in 1998 and added mandatory sentencing guidelines for identity theft in
2004. Ensuring adequate penalties for the ever-evolving crime of identity theft and fraud and better protecting
victims of this pervasive crime was of paramount importance both times federal law was amended. Flores identified
an inadvertent flaw in the statutory language and has now put the responsibility on Congress to fix the language
or deal with the untenable result of an additional burden of proof on prosecutors, resulting in fewer identity theft
cases being prosecuted or more defendants being let off the hook for serious crimes due to a legal loophole.
This report:
• Provides an independent analysis of 250 identity theft and fraud cases prosecuted in every state by the Depart-
ment of Justice and sentenced under the aggravated identity theft statutes (Sections 1028 and 1028A) within
the past three years.
• Reviews legislative history of both Sections 1028 and 1028A.
• Analyzes the Circuit Court and Supreme Court cases that led to the current interpretation of Section 1028A.
• Proposes minor but important changes in the statutory language for Sections 1028 and 1028A.
We conclude that, while the Supreme Court’s decision in the Flores case arguably may be supported by the
plain language of Section 1028A, the decision goes against a clear reading of congressional intent. More impor-
tantly, the practical result of Flores will be to chill prosecutors’ use of the aggravated identity theft felony charges.
Perpetrators of identity fraud will be emboldened due to less concern about penalties and culpability, while victims
and the federal government will have less effective tools to combat the ever-proliferating means of identity fraud,
especially within the context of immigration violations and illegal hiring practices.
Congress should act to correct the Flores interpretation of 18 U.S.C. § 1028A quickly. This Backgrounder
shows a way forward.
Janice Kephart is the Director of National Security Policy at the Center for Immigration Studies.
1
1522 K Street, NW, Suite 820 • Washington, DC 20005-1202 • (202) 466-8185 • center@cis.org • www.cis.org
Center for Immigration Studies
Recommendation: Amend Title 18, United States sure that identity fraudsters are charged and go to jail for
Code, Chapter 47, Sections 1028 and 1028A to (1) their crimes, while victims are able to get restitution and
ensure persons who commit identity theft or fraud for re-establish their reputations. In 2004, Congress passed
the purpose of unauthorized employment or hiring or the Identity Theft Penalty Enhancement Act. The act
harboring unauthorized employees are punishable under was aimed at ensuring that identity thieves committing
both Sections 1028 and 1028A; (2) expand the man- substantial felonies, including immigration violations,
datory aggravated identity theft felony charge under received mandatory sentencing of another two years (or
Section 1028A to include fraud relating to a means of five for terrorism offenses) after serving time for the un-
identification, identity documents, or authentication derlying crime related to the identity theft.
features, whether genuine or false; (3) make clear that The Aggravated Identity Theft statute, as it is
a defendant who possesses or otherwise uses identity in- commonly known, has been used extensively by pros-
formation not his own without lawful authority and in ecutors against all varieties of identity fraudsters. In our
the commission of another felony is still punishable for research of 250 aggravated identity theft cases prosecut-
aggravated identity fraud, regardless of the defendant’s ed by U.S. Attorneys in 48 of 50 states since February
“knowledge” of the victim. 2006, we found that these cases cost America over one
billion dollars and that 46 of the 250 cases we reviewed,
or 18 percent, stated clearly that the defendants were
Introduction foreign-born. Within those 46 cases (14 had multiple
Identity fraud can be perpetrated by anyone. Immigrant defendants), 64 defendants were illegal aliens and 15
or American, those who commit identity fraud mutilate were resident aliens. In six other cases, the defendant’s
credit ratings and reputations, empty bank accounts, immigration status was unclear.
charge up credit cards, file false tax returns, submit false Government and media reporting consistently
medical claims, commit a variety of immigration viola- indicate that the breadth and depth of identity crimes is
tions, and assume innocent identities for criminal or ter- substantially expanding. All states but Vermont and the
rorist purposes. The Senate Judiciary Subcommittee on District of Columbia have specific identity theft laws on
Technology, Terrorism, and Government Information the books. On the federal level, the Federal Trade Com-
amended the federal document fraud and identity theft mission’s national Identity Theft Data Clearinghouse
statute, 18 U.S.C. § 1028, in 1998 to define identity currently holds more than 1.6 million victim complaints
theft as assuming an entire identity and identity fraud as about identity theft.2 According to a 2007 U.S. Depart-
assuming pieces of an identity compiled with other real ment of Justice National Crime Victimization Survey
or false information to create a new identity. Identity (NCVS) of 1.6 million monetary victims surveyed in
fraud in this report refers to both identity theft and iden- 2005, 1.1 million had suffered misuse of personal in-
tity fraud, as “theft” is a subset of “fraud.” Identity fraud formation and 790,000 had suffered both misuse of
traditionally has been considered to encompass those identity information and financial loss.3 Interestingly,
acting either purposefully or in reckless disregard of the where identity information was used — as was the case
fact that the identity information belongs to a real per- in Flores — these households lost about three times as
son. Either way, the crime and the harm remain; there is much money as did those where no personal informa-
always a victim of some kind with identity fraud. tion was stolen, about $4,850, on average.4 Another as-
Illegal aliens engage in varieties of identity fraud sessment of the costs concluded that:
Americans are unlikely to commit, including illegally
applying for U.S. IDs such passports or driver’s licenses, Identity theft, the biggest source of U.S. consumer
as well as using those IDs to obtain jobs they are not fraud, costs a record $56.6 billion in cash, goods,
authorized to have. and services. Two-thirds of victims have no out-
Since 1998, Congress has recognized the grow- of-pocket expense (because banks and credit card
ing threat of identity crime to our citizens, our economy, companies seldom ask victims to cover any charg-
and our national security. In 1998, Congress amended es); for about 3 million victims, the average cost
the document fraud criminal statute of 18 U.S.C. § of repairing their credit was nearly $1,200; and
1028, “Fraud and related activity in connection with for all victims the average time to set the record
identification documents, authentication features, and straight was 40 hours.5
information,” to include misuse of identity information
as a crime, not just identity documents. The goal was to The victim numbers remain high despite tech-
provide federal prosecutors with adequate tools to en- nological advances curbing some types of identity theft
2
and the fact that law enforcement action was in high ers. The strong indication is that the ICE task forces (in
gear at least through the end of 2008.6 (There are no the last administration where they received significant
reports yet on 2009 law enforcement numbers.) In Oc- leadership support) have helped spur arrests, indict-
tober 2008, the President’s Identity Theft Task Force ments, and convictions across the country.
released its annual report making recommendations U.S. Attorney’s Offices and state prosecutors
for combating identity theft. The 31 recommendations all have a responsibility to enforce identity theft laws
were divided into topic areas including prevention, vic- within their jurisdictions, and of course not all of these
tim assistance, and law enforcement. The law enforce- cases involve illegal aliens. Regarding cases that met the
ment section includes the most recommendations, with threshold for federal or state prosecution, fiscal year
14. These recommendations assert that a multi-agency, 2006 (plus the first half of 2007) saw 1,609 convictions
organized law enforcement approach is essential to on state and federal indictments against illegal aliens and
fighting identity theft and supporting victims. The first counterfeiters.11 For just federal indictments represent-
recommendation is to recognize the urgency of estab- ing both American and foreign-born defendants com-
lishing federal resources in one place with a National mitting identity fraud, in 2006 alone there were 1,946
Identity Theft Law Enforcement Center. In addition to indicted and 1,534 convicted. In fiscal year 2007, 2,470
organizing investigations across agencies, U.S. Attorneys defendants were charged and 1,943 were convicted. This
and state prosecutors need to “increase prosecutions of was a 26.9 percent increase in numbers of defendants
identity theft” and, to support that effort, close gaps in charged, and a 26.7 percent increase in the number of
the federal statutes used to prosecute ID theft-related defendants convicted of identity theft.12 Overall, while
offenses.7 these statistics are not directly comparable, there is
In general, the U.S. Secret Service takes the lead strong evidence that the illegal alien population absorbs
for financial crimes, along with the FBI and Immigra- a significant amount of law enforcement and prosecuto-
tion and Customs Enforcement (ICE);14 other agencies rial resources. Clearly, having the laws on the books to
also have some identity theft jurisdiction. With regard support prosecutorial activity is essential.
to the common scenario, presented in Flores, of an illegal
alien using identity fraud to get in, stay in, or work in Analysis of Prosecutions
the United States, the President’s 2008 Identity Theft While the President’s Identity Theft Task Force reported
Task Force report lauded the work of ICE. in 2008 that a total of 4,416 defendants were charged
In a section titled “Identity Theft by Illegal with federal identity theft under both Sections 1028 and
Aliens,” the Task Force highlighted two key priorities. 1208A and 3,477 were convicted in the two-year pe-
First, the expansion of ICE’s identity fraud investigative riod of 2006-2007, our research narrowed the field to
efforts, noting that ICE’s Identity and Benefit Fraud Pro- only those charged with aggravated identity theft under
gram and its Document and Benefit Fraud Task Forces 18 U.S.C. § 1028A(a)(1) from 2006 to 2009 in order
(DBFTFs), targeting counterfeiting houses that supply to get a more comprehensive analysis of what types of
identity information to illegal aliens, were increasingly cases were pursued using Section 1028A, and the facts
successful.8 Only created in 2006, there are now 17 task involved in these cases. Data from 2009 were included
in order to report the most current cases. The analysis
forces nationwide.9 The DBFTFs target the criminal or-
encompassed a total of more than 250 aggravated iden-
ganizations that facilitate the “unlawful entry, residence,
tity theft prosecutions from 2006 to 2009.13
and employment of illegal aliens” by partnering with Some of our key findings:
other agencies such as the Department of Labor, the
Social Security Administration, the U.S. Postal Service, • Financial Harm. Over one billion dollars in harm
USCIS, the Department of State, and various state and ($1,036,725,413.35) from 250 cases, or an average
local law enforcement agencies.10 of $5,183,627 per case. $944,536,946.99 of the
In addition, the President’s Identity Theft Task financial harm was in fraudulent medical billings.
Force noted that ICE’s Worksite Enforcement Program The medical cases were comprised mostly of two
targets employers who knowingly violate federal law to cases, one of which was worth $148 million with
recruit and hire illegal aliens and encourage document three defendants,14 and a $793 million case involv-
fraud and identity theft to support their workforce. The ing a conspiracy of 44 defendants.15
program has been used to tap the know-how of the FTC,
the SSA, OIG, and state labor agencies to bust employ-
3
• Violent Crime. In six cases the defendant’s purpose rity numbers, adding fictitious names,
was to use the identity in furtherance of a violent and bilking credit card companies.20
crime. Five of these involved foreign nationals, all of
whom were illegal. Three involved homicides16 and  Ali Hammoud, another Lebanese man,
two were linked to drug-related trafficking.17 tried to defraud the state of Florida for $5.7
million and was successful in acquiring $3.9
• Document Fraud. 126 cases involved use of physi- million. The day after his theft, he tried to
cal IDs to support the identity theft or crime; only board a plane to Lebanon. There was sig-
112 were based wholly on computer hacking or nificant evidence linking him to Hezbollah.
some form of digital identity theft. The remaining He had also charged $900,000 in unrecov-
12 cases were unclear regarding the type of identity erable checks for cars, trucks, and off-road
information stolen. vehicles to be delivered to the Middle East.21
• Foreign Nationals. In total, 197 (79 percent) of  A Romanian national used a phishing
these cases appear to have involved American citi- scam involving 7,000 individuals, cost-
zens, while 46 (18 percent) involved foreign nation- ing those victims a total of $700,000,
als.18 Seven of these 243 cases involved both foreign and was sentenced in May 2009.22
nationals and American citizens. The remaining sev-
en cases did not indicate the defendants’ legal status.  Two Kenyan sisters who came to the Unit-
ed States on student visas stole personal in-
o Illegal immigrants comprise less than 4 percent formation from about 500 nursing home
of the U.S. population, indicating that illegal victims in 27 states, filing 540 fraudulent
alien use of identity fraud is significantly higher tax returns worth $15 million and receiving
than their population should otherwise suggest, at least $2.3 million. In 2008, one sister was
with 18 percent of the cases reviewed here in- sentenced to 14 years in jail with no parole,
volving illegal aliens. the other five years.23
o Of the 46 cases involving foreign nationals, 36 We found that foreign nationals replicate the
(78 percent) involved illegal aliens, while the identity-fraud crimes Americans commit, except per-
remaining 10 (22 percent) involved those with haps for the more unusual overseas terrorism nexus, as
legal or unstated status in the United States. noted above. In fact, 46 of the 250 cases we reviewed
(18 percent) stated clearly that the defendants were for-
o Within those 46 cases, 64 defendants were il- eign born. Within those 46 cases, 64 defendants were
legal aliens and 15 were resident aliens (14 cases identified as illegal aliens and 15 were resident aliens. To
had multiple defendants). put that 18 percent in perspective, almost 1 in 5 of the
identity fraud cases involve those who are foreign-born.
o Just seven worksite enforcement cases (6.4 per- That 18 percent is significantly higher than the estimat-
cent of illegal alien cases) included 43 total de- ed illegal alien population, which is less than 4 percent.
fendants, corresponding to 38 percent of illegal While 4 percent is still a high number, it appears that il-
defendants.19 Of these 43 defendants, 26 were legal aliens make up a larger percentage of identity fraud
illegal workers and eight were resident aliens cases than their population in the United States would
involved in management. Another nine defen- otherwise suggest.
dants were Americans in management positions. The identity fraud numbers for aliens, especial-
ly illegal aliens, are likely high for three reasons:
o Illegal aliens also commit substan-
tial financial identity fraud. For example: 1. Foreign nationals commit the same types of crimes
as Americans.
 Fadi Kouriani, a Lebanese national
who had entered illegally from Mexico, 2. In addition, foreign nationals, especially illegal aliens,
caused about $1.7 million in identity commit certain types of identity fraud Americans
fraud damage by stealing Social Secu- have no reason to commit, including illegally apply-
ing for U.S. passports, illegally entering or re-entering
4
the country, applying for immigration benefits, and,

in the most publicized of situations, using identity
Statutory Language
fraud to obtain jobs they are not authorized to have. and Legislative History
In 1998, Congress passed by unanimous consent a sig-
3. Identity fraud is becoming essential with the increas- nificant amendment to Title 18 § 1028 in an effort to
ing strength of biometric border-related identity address the growing crime of identity theft. The law
programs such as US Visit, the Western Hemisphere emerged out of the Senate Judiciary Subcommittee on
Travel Initiative, E-Verify, and the implementation Technology, Terrorism, and Government Information,
of the secure driver license act known as REAL ID. with its chairman and lead sponsor Sen. Jon Kyl (R-
Ariz.), along with other key sponsors, including Sens.
These programs are not easy to bypass without Leahy (D-Vt.), Feinstein (D-Calif.), and full committee
assuming the complete identity of a real person. In fact, chairman Hatch (R-Utah). At that time, identity theft
getting a job today with a law-abiding employer is not was involved in 95 percent of financial crimes and iden-
likely unless an illegal alien obtains a real person’s identity theft losses had nearly doubled in two years, to about
tity information or document. Pure counterfeit (i.e., $745 million.24
counterfeit that does not include a real person’s identity The purpose of the law, known at that time as
information) no longer will pass muster, making identity Senate Bill 512, The Identity Assumption and Deter-
fraud the new rubric for any counterfeiter wanting to rence Act, was to ensure culpability and penalties for
stay in business. identity fraudsters while maximizing support of law en-
Some scholars and activists state repeatedly that forcement and providing relief for identity fraud victims
illegal aliens in the job market are “not intending any for the first time. More specifically, Section 1028 was
harm” when they commit identity fraud. That argu- amended primarily for three reasons: (1) to extend the
ment should be considered debunked; it is at best naïve criminal fraud provisions pertaining to identity docu-
and out of touch with current trends. In fact, any illegal ments to identity information, such as digital photos
alien trying to get hired today knows he has to secure the or Social Security numbers increasingly used in online
identity of a real person. Proving the alien knows he has crimes; (2) to capture the many instances where a coun-
used real identity information, however, is another story terfeit identity is created using a real person’s identity
altogether. information mixed with fake documents, features, or in-
To be clear, immigrants, both legal and illegal, formation; and (3) to “recognize the individual victims
commit the same types of identity fraud American citi- of identity theft crimes and establish their right to resti-
zens do: stealing financial and personal information for tution, including all costs related to regaining good cred-
personal gain by purse-stealing, dumpster-diving, hack- it or reputation.”25 The law also established the Federal
ing into computers, or fraudulent cold calls. They de- Trade Commission’s complaint and education service as
fraud banks, the IRS, credit card companies, and health well as enhanced penalties for identity fraud and theft.
care providers. The substantive addition to Section 1028 was
But there are at least four areas of identity fraud 1028(a)(8)(d)(7), where the knowing transfer, pos-
and identity theft that are not committed by Americans, session, or use of identity information, described as a
and only are committed in the illegal-alien context: (1) “means of identification,” was defined as:
illegal entry; (2) application for immigration benefits;
(3) application for a U.S. passport, driver’s license, or Any name or number that may be used, alone or in
state-issued ID; and (4) work authorization. In some in- conjunction with any other information, to iden-
stances, illegal aliens directly steal identity information tify a specific individual, including any —
and misappropriate such information for their own use. (A) name, Social Security number, date of birth,
In other instances, illegal aliens acquire the information official state- or government-issued driver’s license
from a third party, including alien smugglers and iden- or identification number, alien registration num-
tity fraud document rings. ber, government passport number, or employer or
taxpayer identification number;
(B) unique biometric data, such as fingerprint,
voice print, retina or iris image, or other unique
physical representation;
(C) unique electronic identification number, ad-
dress, or routing code; or
5
(D) telecommunication identifying information or The amendment also provides five years for identity
access device. theft and false identity documents used to support a ter-
rorism offense. The report goes on to show how the new
As the 1998 Senate Judiciary Committee Re- sentencing requirements will “make it easier for prosecu-
port states quite clearly, the new provisions of Section tors to convict identity thieves by allowing prosecution
1028 were intended to enable prosecutors to deal effec- for simply possessing [emphasis added] false identity doc-
tively, within one statute, with both identity fraud and uments with the intent to commit a crime.”30 The report
theft.26 The committee report stated: further states that prosecutors could prove (1) intent to
do unlawful activity or (2) use, transfer, or possession
Today, criminals do not necessarily need a docu- of another person’s identity information. Nowhere does
ment to assume an identity; often they just need the Congress add on that their purpose is to require pros-
information itself to facilitate these types of crimes. ecutors to prove knowledge of any wrongdoing beyond
By amending Section 1028, this statute can keep “unlawful activity:”
pace with criminals’ technological advances. In ad-
dition, an amended Section 1028 … eliminates The words “in connection with” would broaden
the need for investigators and prosecutors to dis- the reach of Section 1028(a)(7) in two important
tinguish between identity takeover (S.512) and ways. First, it will make possible the prosecution
false identification (S.512 and Section 1028). of persons who knowingly facilitate the operations
The Committee believes that an amended Section of an identity-theft ring by stealing, hacking, or
1028 will prove both more useful and efficient for otherwise gathering in an unauthorized way other
prosecutors than a separate new offense.27 people’s means of identification, but who may deny
that they had the specific intent to engage in a par-
In 2004, the House Judiciary Committee ticular fraud scheme. Second, it will provide great-
amended Section 1028 and added Section 1028A, which er flexibility for the prosecution of Section 1028(a)
was tagged “Aggravated Identity Theft” and mandated a (7) offenses. With this proposed change, prosecu-
consecutive two-year jail sentence for “knowingly” using tors would have the option of proving that the de-
the identity information of another person in the com- fendants either had the requisite specific intent to
mission of a felony. The language of Section 1028A was commit a particular unlawful activity or engaged
narrow, specifying only one of eight enumerated charges in the prohibited use, transfer, or possession of oth-
under Section 1028 as qualifying for the two-year penal- ers’ means of identification in connection with that
ty under 1028A, that being the “means of identification” unlawful activity.31
listed in Section 1028(a)(7), which was added in 1998.
The legislative history of Section 1028A makes Unfortunately, nowhere in the House report
clear that its intent is to assure that perpetrators of iden- is the issue addressed of whether a defendant has to
tity fraud and theft receive adequate penalties, while “know” his victim is a real person or not. However, it is
broadening the crime to “possession” in addition to clear that the House intended to widen the breadth of
“transfer” and “use.” In addition, the first sentence of prosecutors’ ability to vigorously pursue identity fraud.
the “Need for the Legislation” section of the House Re- The House report focused instead on whether a defen-
port defines “identity theft” and “identity fraud” inter- dant simply “used, possessed, or transferred” the identity
changeably as “all types of crimes in which someone information illegally or intended to engage in unlawful
wrongfully obtains and uses another person’s personal activity with the identity information; it seems relatively
data in some way that involves fraud or deception, typi- clear that a knowledge requirement of the victim was not
cally for economic or other gain, including immigration intended, as that reading creates an outcome that inocu-
benefits.”28 lates some defendants and not others, which is clearly
More specifically, the Section 1028A amend- not what Congress was intending when it added man-
ment was to provide a “mandatory consecutive penalty datory sentencing guidelines designed to “broaden the
enhancement of two years for any individual who know- reach of ” the identity theft statute.
ingly transfers, possesses, or uses the means of identifi-
cation of another person in order to commit a serious
federal predicate offense.”29 (The law lists the predicate The Immigration Context
offenses, including immigration violations, false citizen- The extent of fraud in the worksite arena was largely
ship crimes, firearm offenses, and other serious crimes.) unknown when Section 1028 was amended in 1998.
6
While the 1986 Immigration Reform and Control Act the nexus between criminal and immigration law. Both
(IRCA) explicitly prohibited unauthorized persons from Chertoff and Myers were former federal prosecutors
working in the United States, the system left employers (Chertoff was a former U.S. Attorney and federal judge)
with few tools to distinguish fraudulent from genuine who understood the value of using federal criminal law
documents or identity information. It also left law en- to focus on immigration-related crimes. Their joint per-
forcement hamstrung by long and tedious paper audit severance sent a clear message to employers and illegal
processes where identity theft was hard to prove, and aliens that use of identity theft to further illegal hiring
cases rarely pursued. The extent of the problem was un- practices was unacceptable and would be punished.
known. The vigor with which the federal government began to
Even so, it was well understood that identity use Sections 1028 and 1028A in worksite enforcement
fraud often formed the foundation for immigration was exemplified by three key highly publicized work-
crimes. As the 1998 Senate report made clear, assuring site meatpacking cases between May and August 2007:
penalties for immigration-related identity fraud that in- Swift & Company in Texas, with 53 undocumented
cluded exclusion and deportation were important: workers charged;35 George’s Processing in Missouri,
with 136 charged;36 and Smithfield Processing in North
Similarities in the nature and method of false Carolina,with 25 charged.37
document and false information crimes make use Employers’ repeated denials of wrongdoing
of the same three-year and misdemeanor penalties based on their compliance with the paper-based I-9 pro-
reasonable. An added advantage of incorporating cess began to hold little weight with investigators with
identity information crimes into the penalties set the evolution of technology to verify a worker’s legal
out in Section 1028 is that such inclusion auto- status. Everyone remains well aware that the paper I-9
matically makes identity information crimes sub- process is nearly incapable of accurately verifying work
ject to exclusion (Section 212(a)(2)) and deporta- authorization. The I-9 process is, and will remain, a way
tion (Section 237 (a)(2)) provisions of the Immi- to mask fraud for those employers who lack an incentive
gration and Nationality Act.”32 to hire only legal workers.
However, with the advent of E-Verify in 2006
The 2004 Enhanced Penalty Act language also displacing the old paper “verification” process at many
targeted abuse of immigration benefits, as well as the worksites (E-Verify is now more than 99.5 percent ef-
identity theft rings that support the many varieties of fective in culling through new hires to determine work
immigration fraud. Former Secretary of Homeland Se- authorization),38 law enforcement increasingly has been
curity Michael Chertoff noted the relationship between able to cull employers who intend to comply with fed-
immigration enforcement in the employment context eral work authorization laws, and those that do not.
and identity theft and document fraud in a 2008 DHS More to the point, E-Verify — while not being perfect
Leadership Journal posting where he noted he had three — is extremely good at determining work authorization
priorities for these types of investigations. One of these quickly and efficiently.39
was to “focus on disrupting the infrastructure that sup- E-Verify’s popularity with employers is evi-
ports illegal immigration, which includes aggressively dent, with a 274 percent growth rate since its inception
targeting those who engage in identity theft, document in 2007. Even Congress has finally recognized its val-
fraud, and/or human smuggling.”33 ue, providing a three-year reauthorization in the 2009
In the year prior to the Flores decision, worksite Homeland Security Appropriations bill after a year of
enforcement cases increased substantially, from 3,667 uncertainty as to the program’s future. The underlying
administrative arrests and 716 criminal arrests in 2006 result for any illegal alien seeking to get hired today is
to 3,000 administrative arrests and 875 criminal arrests that E-Verify is difficult to bypass without assuming a
just in the first half of 2008.34 With technology helping real person’s identity. With more than 500,000 worksites
the federal government improve its ability to prove iden- using E-Verify now — accounting for perhaps one out
tity theft in illegal hiring cases, prosecutors began to use of four new hires nationwide this year — illegal aliens
the aggravated identity theft charge with confidence in know employment is increasingly unlikely without com-
worksite enforcement cases. mitting identity fraud. Counterfeits will not work in E-
The sudden surge in worksite cases not only re- Verify. Thus, an argument from litigators on behalf of
flected a policy shift under Secretary Michael Chertoff the traditional view of the illegal worker who just wants
and ICE Assistant Secretary Julie Myers to greater en- a job and “doesn’t intend to harm anyone” 40 is simply
sure the rule of law, but also the growing recognition of out of touch with current trends. The only way for an
7
illegal alien to get a job in the United States today, and actually knew the identity information belonged to an-
minimize the risk of getting caught, is to harm a real other person in instances where it is either (1) unclear
person. how the identity information was obtained; or (2) the
identity information was acquired from a third party.44
Illegal Alien Cases Led to Supreme Court Review However, the Eleventh Circuit considered such a read-
In six of the seven cases decided among the Circuit ing of Section 1028A absurd, and against the clear intent
Courts that led to the Solicitor General recommenda- of Congress:
tion that the Supreme Court resolve the growing in-
terpretative dispute pertaining to the Aggravated Iden- An extension of the knowledge requirement to the
tity Theft statute,41 the identity theft involved an illegal phrase “of another person” in Section 1028A(a)
alien using a false identity to gain a privilege that by law (1), as advocated by Hurtado, would allow a de-
belongs to legal immigrants or U.S. citizens. Three in- fendant to use the identification of another person
volved work authorization, one a passport application, fraudulently in the commission of another enu-
one an attempted re-entry after deportation, and one use merated felony so long as the defendant remains
of false and stolen identities to support assimilation into ignorant of whether that person is real. The plain
the United States after three prior illegal entries and two language of Section 1028A(a)(1) does not dictate
deportations. All of these cases were decided within a such a reading.45
span of eight months except for the 2006 Montejo deci-
sion, and within 24 months of the October 20, 2008 Thus Flores (and a few of its sister cases) seemed
grant of certiorari in Flores.42 to represent an irreconcilable divide that forced resolu-
Four cases had been decided in favor of the gov- tion by the Supreme Court. Understanding these un-
ernment (whereby only possession, use, or transfer of a derlying cases, their facts, and the reasoning of seasoned
victim’s identity information without lawful authority is judges on this issue makes clear that however the judges
required) and three in favor of the defendant (mens rea ultimately ruled, they all agreed that the statutory lan-
requires the government prove actual knowledge of the guage lacked sufficient clarity. These cases also made
victim’s identity) prior to the Supreme Court agreeing to evident that illegal alien cases are the most difficult, as
take up this mushrooming split between the circuits. In- the “knowledge” requirement (mens rea) is often at its
terestingly, in all three cases that ruled in favor of the de- most difficult to prove. These cases also struggle with
fendant there was dissent, some of which gave Congress congressional intent, some viewing the legislative pro-
clues as to how to reconstruct the enhanced penalties in cess with skepticism, some narrowly as to whether the
order to better avoid issues of statutory interpretation in particular language issue raised in Flores was resolved by
the future. the 2004 House Report or not, and some more broadly,
In at least three of the six alien cases, the facts as to what the overall intent of Congress was in pass-
explicitly state that the illegal alien had bought the iden- ing the mandatory sentencing guidelines at all. Having
tity information from a third party for a price. The D.C. worked on the 1998 amendment of this law, this author
Circuit made clear in United States v. Villanueva-Sotelo, is biased toward viewing congressional intent from its
the case of the three-time illegal entrant, that the gov- overall purpose as a guiding principle for resolving less
ernment must prove the defendant “knew it was a real clear questions like the one raised in Flores.
person’s” identity information: Understanding Flores in context then, is the
purpose of this section.
Villanueva-Sotelo admits he knew the card was a
fake. Although the government can prove that the Circuit Court Cases Where Government Need
alien registration number displayed on the card be- Not Prove Defendant’s Actual Knowledge of
longed to another individual, it concedes — criti-
cally for this case — that it lacks any evidence that
Identity Theft
Villanueva-Sotelo actually knew this.43
United States v. Flores-Figueroa, Illegal Alien Unau-
The decisions that agreed with Villanueva-So- thorized Work Case (April 23, 2008)
telo (which agree with the Supreme Court’s decision in
Flores) make it extremely difficult for the prosecution Background: Flores-Figueroa is a Mexican national who
to prove beyond a reasonable doubt that the defendant had worked at L&M Steel Services in Illinois since 2000.
Flores used the assumed name of Horacio Ramirez46 and
8
used a fake birth date and Social Security number along United States v. Hurtado, Illegal Alien Passport Fraud
with a counterfeit alien registration card. Six years later, Case (November 21, 2007)
(with the advent of more worksite enforcement), Flores-
Figueroa asked his employer to file a new set of Social Background: Hurtado paid $7,000 for a fraudulent visa
Security and alien numbers for him, using his real name. from Colombia to come to the United States and then
This time the numbers belonged to real people. His em- committed identity fraud again in order to obtain a U.S.
ployer reported him to ICE and he was charged with passport to pose as an American travelling to Colombia
aggravated identity theft.47 visiting his family. He paid $1,500 for a driver’s license
and birth certificate in the name of Marcos Alexis Mar-
Defendant’s Argument: The government lacked proof that tinez Colon from a man in Boston named “Orlando”
Flores knew that the means of identification belonged to to support a passport application. Upon investigation,
another person.48 Hurtado had a suite of Colon IDs on him, including a
debit card he was using to make deposits into an account
Eighth Circuit Holding: Relying on the precedent of associated with Colon.53
Mendoza, the court held:
Defendant’s Argument: Hurtado claimed that the govern-
We resolved this issue and determined that un- ment did not prove that Hurtado committed aggravated
der the plain language of the statute, “know- identity theft because there was no proof that (1) Hurta-
ingly” modified only the verbs “transfers, possesses, do had knowledge that Colon was an actual person;
or uses,” and not the phrase “of another person.” or (2) that Hurtado acquired the identity information
Therefore the Government need not prove that “without lawful authority,” which he argued meant that
Flores knew the means of identification belonged he personally stole the documents from Colon.54
to another person. Flores does not challenge the
sufficiency of the Government’s evidence that the Eleventh Circuit Holding: The conviction was upheld.
means of identification he possessed belonged to The phrase “without lawful authority” means that the
another person. Accordingly, we affirm F l o r e s’ s defendant acted without any authority to use Colon’s
conviction.49 identification, and that the Section 1028A(a)(1) terms
“transfers, possession, or use of identification” do not re-
United States v. Mendoza-Gonzalez, Illegal Alien Un- quire that the information be stolen, but covers a “wide
authorized Work Case (March 28, 2008) range of activities.” In addition, the Court concluded
the following regarding the knowledge requirement:
Background: Swift & Company pork processing plant in
Marshalltown, Iowa, used the paper I-9 Form for its em- If Congress had intended to extend the knowledge
ployees. Mendoza-Gonzalez filed his Form I-9 for Swift requirement to other portions of this subsection,
by using a photo ID card in the name of Dinicio Gurrola it could have drafted the statute to prohibit the
III to verify his identity as a “citizen or national of the knowing transfer, possession, or use, without lawful
United States.”50 authority, of the means of identification “known
to belong to another actual person.” An extension
Defendant’s Argument: Mendoza interpreted Section of the knowledge requirement to the phrase “of
1028A to require that the Government must prove be- another person” in § 1028A(a)(1), as advocated
yond a reasonable doubt that Mendoza (1) had actual by Hurtado, would allow a defendant to use the
knowledge that he was stealing a real person’s ID; that identification of another person fraudulently in the
(2) Gurrola was an actual person; and (3) Gurrola was commission of another enumerated felony so long
still alive when his stolen ID was used by Mendoza.51 as the defendant remains ignorant of whether that
person is real. The plain language of § 1028A(a)
Eighth Circuit Holding: Citing both a Supreme Court (1) does not dictate such a reading.55
case and statutory construction authority, the Court
held that “§ 1028A(a)(1) is unambiguous and that the United States v. Montejo, Illegal Alien Unauthorized
Government was not required to prove that Mendoza- Work Case (March 29, 2006)
Gonzalez knew that Gurrola was a real person to prove
he violated § 1028A(a)(1).”52 Background: Montejo walked into the United States in
January 2002 and purchased, in Phoenix, a Resident
9
Alien card and a Social Security card for $60, knowing First Circuit Holding: The Court’s majority held that nei-
they were false. He then used the IDs to get a job with a ther the statutory language nor legislative history made
Norfolk, Va., company called Network Industries, Ltd. clear the meaning of Section 1028A(a)(1). The “rule of
Montejo provided Network Industries with a Resident lenity” requires that ambiguity be decided in favor of
Alien card with his photo, but fabricated numbers, and the defendant. With that rule in mind, the Court held
a Social Security card bearing his name. “that the ‘knowingly’ mens rea requirement extends to
Unknown to Montejo, the alien registration ‘of another person.’ In other words, to obtain a convic-
number he used was assigned to a naturalized U.S. citi- tion under § 1028A(a)(1), the government must prove
zen. The Social Security number used by Montejo was that the defendant knew that the means of identification
also assigned to another person. Montejo was not caught transferred, possessed, or used during the commission of
until August 2004 when ICE found the documents in an enumerated felony belonged to another person. The
Montejo’s possession, and he admitted the facts. government did not do so here. Accordingly, we reverse
Godin’s conviction.”59
Defendant’s Argument: Montejo motioned for acquittal
reasoning that he obtained a Resident Alien card in his Chief Judge’s Concurring Opinion: Chief Judge Lynch
name knowing its associated number was not his own, concluded that the interpretation of the language could
but that he did not know if the number was assigned to go either way and suggested that “Congress may wish
another person. to clarify in new legislation the scope of the enhanced
penalties.”60
Fourth Circuit Holding: Montejo’s motion was denied
based on statutory language, purpose, and legislative United States v. Miranda-Lopez, Illegal Alien Re-En-
history: “The legislative history shows that Congress was try Case (July 17, 2008)
concerned with aggravated identity theft, exactly what
was charged in this case. Montejo stole the identity of Background: Roberto Miranda-Lopez, a previous de-
two entirely innocent people, the holder of the alien portee from El Salvador, tried to re-enter the United
identity number and the holder of the Social Security States using a resident alien card in the name of Jorge
number.”56 A. Garcia Fregoso at the San Ysidro, Calif., port of en-
try in March 2006. Miranda was in the front passen-
Circuit Court Cases Where Government Must ger seat of the vehicle as it approached the inspection
booth. The driver handed the officer three identification
Prove Defendant’s Actual Knowledge of His
cards for the vehicle’s three passengers, but the photos
Identity Theft on the cards did not match the occupants of the vehicle.
However, Miranda, when asked if he was the individual
United States v. Godin, American Bank Fraud Case Fregoso listed on the card, said “yes.” Fingerprints were
(July 18, 2008) then taken, and did not match. In secondary inspection,
all three men in the car were shown to be imposters.61
Background: In 2006, Godin defrauded eight banks us-
ing seven fabricated Social Security numbers that were Defendant’s Argument: Having lost at trial, the court per-
derivatives of her Social Security number, closed some mitted the defendant to file a new motion not previously
accounts, and then deposited checks drawn on the raised — that the government failed to prove that Mi-
closed accounts into the still open accounts. Godin then randa actually knew that the identification belonged to
withdrew funds from the falsely inflated accounts. The another person.62
banks lost a total of about $40,000. Of the seven syn-
thesized SSNs, one belonged to another person. In that Ninth Circuit Holding: In its de novo review of statutory
instance she used the number to open a Bank of America interpretation, the Ninth Circuit stated it would “fol-
account; all the other personal information was hers, ex- low the D.C. Circuit’s reasoning in United States v. Vil-
cept for the SSN.57 lanueva-Sotelo.” The Ninth Circuit found the legislative
intent of Section 1028A(a)(1) ambiguous and thus the
Defendant’s Argument: The government failed to meet its “longstanding” rule of lenity requires us to resolve any
burden of proof that Godin knew that the made-up So- ambiguity in the scope of a criminal statute in favor of
cial Security number belonged to another person.58 the defendant.” The Court concluded this despite ac-
knowledging the dissent’s argument that the majority’s
10
ruling was “absurd” and clearly not within the statute’s priation,” Maj. Op. at 22, of another’s identifica-
intent.63 tion number — the “accident,” I assume, relating
to his ignorance of the fact that the identification
Partial Concurrence and Partial Dissent: In his opinion, he knows to be false is assigned to another person
Judge Bybee made something akin to a recommenda- — would not constitute “theft.” See Maj. Op. at
tion. He stated that “knowingly” modifies “without law- 16 (“As th[e] title demonstrates, the statute con-
ful authority” and thus “the entire phrase ‘of another per- cerns ‘theft,’ i.e., ‘the felonious taking and remov-
son or a false identification document’ could be excised ing of personal property with intent to deprive
from the statute” as surplus and unnecessary language. 64 the rightful owner of it.’ WEBSTER’S THIRD
NEW INTERNATIONAL DICTIONARY
United States v. Villanueva-Sotelo, Illegal Alien Doc- 2369 (1993) (emphasis added); see also BLACK’S
ument Fraud Case (February 15, 2008). LAW DICTIONARY 1516 (8th ed. 2004). …
Here the Congress has made clear — in discuss-
Background: Gustavo Villanueva-Sotelo had three previ- ing the same title the majority reads as limited
ous illegal entries and two deportations. In August 2006, to common-law theft — that identity “theft” is a
Washington, D.C., police stopped Villanueva and re- much broader offense than the majority prefers.
quested identification. Villanueva presented the officers The House Judiciary Committee Report accompa-
with what appeared to be a legitimate government-is- nying the ITPEA explains that “the terms ‘iden-
sued permanent resident/work card that pictured Villan- tity theft’ and ‘identity fraud’ refer to all types of
ueva and displayed his own name, Mexico as his country crimes in which someone wrongfully obtains
of origin, and an alien registration number. Villanueva and uses another person’s personal data in some
admitted he knew the card was a fake. The government way that involves fraud or deception, typically
could prove the alien number belonged to someone else, for economic or other gain, including immigration
but lacked evidence that Villanueva knew the alien num- benefits.” H.R. Rep. No. 108-528, at 4 (2004)
ber belonged to another person. The court held that the (emphases added) (House Report); see also id. at
government had to prove Villanueva’s knowledge of his 25 (statement of Rep. Coble) (“Identity theft and
identity fraud, and did not meet its burden of proof.65 identity fraud are terms used to refer to all types
of crimes in which an individual’s personal or
Prosecution’s Argument: The government argued that the financial data is misused, typically for economic
court, in dismissing its aggravated identity theft count gain or to facilitate another criminal activity.”
against Villanueva-Sotelo, interpreted the word “know- (emphasis added)).68
ingly” in section 1028A(a)(1) to “modify both the verbs
and the object, that is, ‘means of identification of an-
other person’“ erroneously.66
Supreme Court Ties
Prosecutors Hands
D.C. Circuit Holding: In reasoning similar to Godin, the With Flores-Figueroa, the Supreme Court took on an un-
majority held that there was “reasonable doubt” as to the published, per curiam Eighth Circuit decision with tre-
statute’s meaning and congressional intent, that the “rule mendous political interest in its outcome.69 The Court
of lenity” was required to come into play to resolve the had previously denied certiorari to the related Fourth
issue, and concluded: “we hold that section 1028A(a) Circuit Court decision Montejo, which did have a pub-
(1)’s mens rea requirement extends to the phrase ‘of an- lished decision. The issue in both cases was the same:
other person,’ meaning that the government must prove whether a conviction under the federal aggravated iden-
the defendant actually knew the identification in ques- tity theft statute 18 U.S.C. § 1028A(a)(1) requires that
tion belonged to someone else.”67 the defendant actually know that false identity informa-
tion used in commission of another felony is that of an-
Dissent: Circuit Judge Henderson, in her dissent, takes other person, or simply know that such information is
on the majority’s view that the language is ambiguous by not his own and is fabricated. In both cases, the Circuit
adding clarity as follows: Courts had decided against the defendant and in favor
of the government; namely that the government need
Apparently the majority believes that Villanueva- not prove the defendant had actual knowledge of a real
Sotelo’s conduct does not constitute aggravated person’s identity to be convicted of the federal crime of
identity theft because his “accidental misappro- aggravated identity theft.
11
Justice Breyer for the Majority. The Supreme Court re- The Government’s interpretation leads to exceed-
versed the Eighth Circuit in Flores, holding instead that ingly odd results. Under that interpretation, if a
the government must prove that the defendant actually defendant uses a made-up Social Security number
knew he was using a real person’s identity information without having any reason to know whether it
in the commission of another crime. The Court did so belongs to a real person, the defendant’s liability
based primarily on the wording of § 1028A(a)(1): under Section 1028A(a)(1) depends on chance: If
it turns out that the number belongs to a real per-
Section 1028A(a)(1) requires the government to son, two years will be added to the defendant’s sen-
show that the defendant knew that the means of tence, but if the defendant is lucky and the number
identification at issue belonged to another person. does not belong to another person, the statute is
As a matter of ordinary English grammar, “know- not violated. I therefore concur… insofar as it may
ingly” is naturally read as applying to all the sub- be read to adopt an inflexible rule of construction
sequently listed elements of the crime. … Courts that can rarely be overcome by contextual features
ordinarily interpret criminal statutes consistently pointing to a contrary reading.72
with the ordinary English usage.70
Justice Alito’s concern, then, turned on the
The court’s rendering of the language did not practical result of the statute’s interpretation, and not on
include the references to standard legal guides, as did sentence reconstruction, as did the majority’s opinion.
the circuit court cases. Nor did the court acknowledge Alito’s opinion is that unless the statute is interpreted
ambiguity of the statutory language, as all the circuit strictly, different defendants under the prosecutorial in-
cases that ruled in favor of the defendant did. Instead, terpretation are treated differently by the law, not based
the court concluded that the use of language in the stat- on the outcome of what they did or on their actual in-
ute was so plain it need not refer to other guides to make tent to pose as someone other than themselves to com-
its determination, other than a few precedent Supreme mit a crime, but on whether there exists a real victim or
Court cases that had interpreted the use of “knowingly” not. That seemed to elude common sense to Alito, so he
in other statutes. The court left little to argue with — concurred with the majority.
even though its conclusion was in the minority of the Government authorities can more easily prove
circuits — especially since the Flores decision had no dis- mens rea where there is an investigation stemming from
sent, just two separate concurring opinions by Justices the identity theft itself, such as computer hacking of
Scalia and Alito. personal information; employees who steal the personal
information of their employer, clients, or patients; or
Justice Alito’s Concurrence. Only Justice Alito put up those that dumpster dive, steal purses, or use familial ties
any dissent about the Court’s embrace of “ordinary Eng- in an unlawful manner. However, where the investiga-
lish usage” to resolve Flores unequivocally: tion is not an identity theft or fraud investigation per
se, and the identity fraud is collateral to other crimes,
I think the court’s point about ordinary English us- the Flores decision has inadvertently carved out an excep-
age is overstated. Examples of sentences that do not tion that largely lets off the hook those picked up in any
conform to the court’s rule are not hard to imagine. investigation not specifically focused on identity theft.
For example: ‘The mugger knowingly assaulted Often, (although not always), these felonies involve il-
two people in the park — an employee of company legal entry, passport fraud, or unauthorized work where
X and a jogger from town Y.’ A person hearing this the source of the illegally acquired identity information
sentence would not likely assume that the mugger is unknown.
knew about the first victim’s employer or the second The Court acknowledged this potential prob-
victim’s home town. What matters in this example, lem when it wrote:
and the court’s, is context.71
Perhaps of greatest practical importance, there is
Where Alito had trouble was where the statu- the difficulty in many circumstances of proving be-
tory language, in context, produced an absurd result; yond a reasonable doubt that a defendant has the
and he thus agreed with the majority after boiling down necessary knowledge. Take an instance in which
the problem to the same one that the D.C. Circuit had an alien who unlawfully entered the United States
in Villanueva: gives an employer identification documents that in
fact belong to others. How is the Government to
12
prove that the defendant knew that this was so? do? What about those who buy or use counterfeit iden-
The Government may be able to show that such a tity information for the purpose of evading the law with
defendant knew the papers were not his. But per- reckless disregard for victims, as was the case with all the
haps the defendant did not care whether the papers circuit court cases reviewed here? In any of these situa-
(1) were real papers belonging to another person or tions, there is a victim that is “real:” defrauded banks;
(2) were simply counterfeit papers. The difficulties state, local, and federal government institutions; or an
of proof along with the defendant’s necessary guilt employer. If there is a legitimate owner of that identify-
of a predicate crime and the defendant’s necessary ing information involved as well, the policy should be to
knowledge that he has acted “without lawful au- use the restitution provisions to provide as much com-
thority,” make it reasonable, in the Government’s pensation as necessary to restore reputation and financial
view, to read the statute’s language as dispensing status to the victim, including clearing any criminal re-
with the knowledge requirement.73 cord that may have resulted from the identity theft.
However, the court then dismissed the issue

of burden of proof by narrowly defining identity theft A Legislative Fix
crimes, and suggesting that only these crimes, and not The unintended consequence of the Supreme Court’s
other crimes such as work authorization violations, were Flores decision has potential to be disturbingly far-reach-
worthy to pursue on aggravated identity theft charges: ing. By narrowing the use of the aggravated identity theft
charge, prosecutors’ hands are tied. Victims are left with
We do not find this argument sufficient, however, little recourse where actual knowledge of the identity
to turn the tide in the Government’s favor. For one fraud or theft remains elusive. The system has victim-
thing, in the classic case of identity theft, intent is ized the victim further, while providing the defendant
generally not difficult to prove. For example, where — whose harm has been proven — a way out. However,
a defendant has used another person’s identifica- having a defendant go free based on whether or not the
tion information to get access to that person’s bank fraudulent identity information belonged to a real vic-
account, the Government can prove knowledge tim also seems absurd. Instead, the mens rea should fall
with little difficulty. The same is true when the on the intent of the defendant to cause harm or act in
defendant has gone through someone else’s trash to reckless disregard for his victim’s harm while in the com-
find discarded credit card and bank statements, or mission of another felony, eliminating from the burden
pretends to be from the victim’s bank and requests of proof the “knowingly” requirement.
personal identifying information. Indeed, the ex- The Flores decision has reoriented the intent of
amples of identity theft in the legislative history the statutes from supporting victims of identity fraud to
(dumpster diving, computer hacking, and the like) carving out exceptions in favor of defendants who had,
are all examples of the types of classic identity theft at minimum, constructive knowledge of their identity
where intent should be relatively easy to prove, and fraud or theft. Congress should rethink Sections 1028
there will be no practical enforcement problem.74 and 1028A in an attempt to untie prosecutors’ hands so
that all victims of identity fraud are assured relief where
But despite acknowledging the problem their the government can prove that identity information the
interpretation created, the court dismissed the overarch- defendant knows is not his own is used without lawful
ing purpose of the statute and its legislative history as authority.76 The importance of Congress amending Sec-
follows: “To the extent that Congress may have been tions 1028 and 1028A in light of the Supreme Court
concerned about criminalizing the conduct of a broader decision in Flores is further buttressed by the growing
class of individuals, the concerns about practical en- breadth and depth of identity fraud, as discussed previ-
forceability are insufficient to outweigh the clarity of the ously. Nor should illegal aliens have a better chance of
text.”75 getting out of an aggravated identity theft charge than
Is this the policy that the federal government Americans.
wants to stand? That those who know how to hide their Even Justice Breyer seemed to imply that Con-
intended use of identity information for the purpose of gress should consider amending the statute with plain,
committing other felonies should be shielded from the ordinary language to create the “practical enforceability”
law? Should there be a distinction in the law between across the range of identity fraud crimes that the Su-
those who by the luck of the draw happen not to have preme Court says is unsupported by the current statuto-
used a real person’s identity information, and those who ry language. The goal is to use plain, ordinary language
13
to assure adequate penalties regardless of a defendant’s ity. It should not matter whether the person intended to
“knowledge” of his identity crime, and to provide iden- commit identity fraud or theft, or whether he knew for
tity fraud victims as much relief as possible from those sure he was stealing a real person’s identity or thought
who have caused harm to their reputations and finances. just maybe he was. What the turning point under Section
In that light, below are suggested fixes to the statutory 1028 should be instead — and this will require us to
language. recalibrate the crime in criminal code the way the crime
continues to expand in the real world — is whether (1)
identity information (2) other than their own (3) was
Proposed Language Changes to used, possessed, or transferred (4) without lawful author-
Sections 1028 and 1028A ity. If such crime was committed in conjunction with a
When illegal aliens use third parties to purchase ID felony, it should be deemed an aggravated felony under
documents or information, they should not be immune Section 1028A(a)(1). In addition, Section 1028A(a)(1)
to a charge of aggravated identity theft. Fraudulent ID should reflect the breadth of offenses of Section 1028,
rings earn millions from criminals and illegal aliens and not remain narrow to simply identity theft, which is
whose only purpose in obtaining such documents is to only one of eight crimes listed in Section 1028.
misrepresent themselves and further assimilate into the Thus, two main changes need to occur to Sec-
United States. While the federal government works on tions 1028 and 1028A to (1) answer the concerns of
these rings to bring them to justice, their clients — who the Supreme Court in Flores; (2) assure that perpetra-
knowingly buy their products — should not be let off tors of identity fraud do not have an illegitimate defense
the legal hook because they don’t “know” their victims. against the unlawful activities they knowingly commit;
When an illegal alien, criminal, or terrorist ap- (3) make clear that identity theft in regard to illegal hir-
proaches a third party for a fraudulent ID of any kind, ing practices is fully within the scope of enhanced penal-
the purpose is to acquire an identity other than his own. ties under Section 1028; and (4) broaden the aggravated
These clients have, at minimum, actual knowledge that identity theft charge in Section 1028A to all varieties of
the identity information they are provided is fraudulent. identity fraud covered in Section 1028.
They also are well aware, with the advent of biometric Below is a series of proposed changes that could
and database software query programs like E-Verify and accomplish the goal of fixing Flores. They are includ-
US Visit, that they are highly unlikely to pass muster ed with the current statutory language as typical track
with a completely fake identity. Indeed, to be work- changes, crossing out current text and adding new text
authorized in today’s job market or to obtain a driver’s in red. The goal is for Congress to save time on fixes by
license or passport, it is increasingly the case that a real using as much existing language as possible.
person’s identity must be used. Whether a third party
tells a buyer that or not is irrelevant; the buyer’s intent Proposed Change No. 1:
is to defraud the U.S. government, private employer, or
other entity for an illegal purpose without regard for a Title 18, Part I, Chapter 47 § 1028. Fraud and related
potential victim. If the purpose for which the identity activity in connection with identification documents,
information is used is illegal or “without lawful author- authentication features, and information (a) Whoever,
ity,” then the activity of using, transferring, or possess- in a circumstance described in subsection (c) of this sec-
ing that identity information should be treated as con- tion — (7) knowingly transfers, possesses, or uses, with-
structive knowledge to commit identity fraud or theft out lawful authority, a means of identification of another
sufficient for the purposes of an aggravated felony and
person other than his own with the intent to commit, or
deportation.
to aid or abet, or in connection with, any unlawful activ-
The central issue should be that the person com-
ity that constitutes a violation of federal law, or that con-
mitting the identity fraud or identity theft intended to
use an identity other than his own without lawful author- stitutes a felony under any applicable state or local law;
14
Proposed Change No. 2: nator is an Assistant U.S. Attorney (AUSA) with exten-
sive experience in prosecuting identity theft cases. These
Title 18, Part I, Chapter 47 § 1028(b). The punish- coordinators serve as liaisons between the district office
ment for an offense under subsection (a) of this section and the various communities served. Federal, state, and
is — local law enforcement agencies rely on these AUSAs for
(3) a fine under this title or imprisonment for not more information, advice, and emergency prosecutorial deci-
than 20 years, or both, if the offense is committed — sions. This effort builds on existing programs in vari-
(D) to facilitate or assist in harboring or hiring unau- ous U.S. Attorneys’ Offices to coordinate identity theft
thorized workers (as defined in section 8 U.S.C. §1324 resources.”77
relating to the harboring of illegal aliens), § 1342a (relat- However, that will not matter much if prosecu-
ing to the unlawful employment of aliens), and § 1324c tors have their hands tied and cannot pursue criminal
(relating to document fraud); law to bring those who commit identity fraud to justice.
The May 4, 2009, ruling of the Supreme Court in Flores
Proposed Change No. 3: reinterpreted the frequently used Aggravated Identity
Theft statute from its common usage, narrowing sub-
stantially the types of cases where the government can
Section 1028A. Aggravated identity theft fraud and
meet its evidentiary burden. In essence, the court in
related activity in connection with identification doc-
Flores agreed with the defendant that if the government
uments, authentication features, and information
could not prove that the defendant actually knew he had
(a) Offenses.— acquired a real person’s identity information to stay em-
(1) In general.— Whoever, during and in relation to ployed illegally, he could not be convicted of aggravated
any felony violation enumerated in subsection (c), identity theft. Interestingly, Flores did not contend that
knowingly transfers, possesses, or uses, without lawful he did not know he had used a real person’s identity in-
authority, a means of identification of another person formation unlawfully, just that the government could
other than his own; an authentication feature, a false not prove it.
authentication feature, document-making implement, Flores turns congressional intent, coordinated
identification document, or false identification docu- law enforcement, and prosecutorial priorities upside
ment as defined in Section 1028 of this title shall, in down, unintentionally carving out an exception in many
addition to the punishment provided for such felony, be illegal alien cases — and in many American citizen cases
sentenced to a term of imprisonment of two years. as well — that any defendant able to claim ignorance as
(2) Terrorism offense.— Whoever, during and in re- to whether a real person’s identity information was ac-
lation to any felony violation enumerated in section quired unlawfully cannot be prosecuted for aggravated
2332b (g)(5)(B), knowingly transfers, possesses, or uses, identity theft. The Flores decision has the potential to
without lawful authority, a means of identification of an- significantly limit prosecutors’ ability to punish crimi-
other person other than his own or a false identification nals and protect victims. It is up to Congress to fix the
document shall, in addition to the punishment provided Aggravated Identity Theft statutory language so identity
for such felony, be sentenced to a term of imprisonment fraud can be prosecuted fairly and vigorously. What it all
of five years. comes down to is that the result of Flores should not be
acceptable to Congress, or the American people. Only
Conclusion Congress can fix it, and it should be done as expedi-
The President’s Identity Theft Task Force was pleased to tiously as possible through either the House or Senate
say in its 2008 report that all the U.S. Attorneys had Judiciary Committees in order to minimize the conse-
quences of Flores in identity theft prosecutions around
accepted its recommendation from the prior year and
the country.
had designated an Identity Theft Coordinator for each
of the 93 U.S. Attorney’s offices. “Typically, this coordi-
15
End Notes Ibid.: “Over the past four years, the number of docu-
11
ment and benefit fraud investigations launched by ICE

has increased from 2,334 in Fiscal Year (FY) 2004 to
1
See Adam Liptak and Julia Preston, “Justices Limit
3,591 in FY 2005, to 5,222 for FY 2006 and the first
Use of Identity Theft Law in Immigration Cases,” The
half of FY 2007. Corresponding criminal indictments
New York Times, May 4, 2009, http://www.nytimes.
in these cases have increased from 767 to 875 to 1,595,
com/2009/05/05/us/05immig.html.
while arrests have risen from 1,300 to 1,391 to 2010
2
The President’s Identity Theft Task Force, Combating and convictions have increased from 559 to 992 to
Identity Theft: A Strategic Plan, September 2008, pp. 1,609.”
29-30, http://www.ftc.gov/os/2008/10/081021taskfor 12
The U.S. Attorney federal numbers are taken from
cereport.pdf.
The President’s Identity Theft Task Force, Combating
3
Katrina Baum, “National Crime Victimization Sur- Identity Theft: A Strategic Plan, September 2008, p. 37,
vey Identity Theft, 2005, Bureau of Justice Statistics http://www.ftc.gov/os/2008/10/081021taskforcereport.
Special Report,” November 2007, p. 1, http://www.ojp. pdf; while the ICE numbers are taken from “More than
usdoj.gov/bjs/pub/pdf/it05.pdf. 80 arrested in Florida following marriage fraud round-
up,” ICE press release, May 8, 2009, http://www.ice.
4
Ibid., p. 5.
gov/pi/news/newsreleases/articles/080509orlando.htm.
5
“Identity theft costs a record $56.6 billion,” Identity 13
A thank you to CIS interns Matt Graham, a junior
Theft Daily, February 24, 2009, http://www.identity-
at Duke University, and Zachary Nunez, a graduate of
theftdaily.com/index.php/20090223506/Prevention/
George Washington University, for helping sift through
Identity-theft-costs-a-record-$56.6-billion.html.
the U.S. Attorney press releases, indictments, court
6
Ibid.: “Fortunately, ID theft is declining after cases re- dockets, and news stories that underlay this research.
ported to the Federal Trade Commission (FTC) nearly
“DME Defendants Sentenced in Multi-Million
14
tripled from 2001 through 2004. The number of iden-
Dollar Medicare Fraud Scheme,” August 28, 2008,
tity fraud victims in the United States was 8.1 million
U.S. Attorney’s Office for the Southern District of
in 2007, a 3.6 percent decrease from the 8.4 million in
Florida press release, http://www.usdoj.gov/usao/fls/
2006 and a 9.0 percent decrease from 2005 according
PressReleases/080828-04.html.
to Javelin Strategy & Research. Awareness by consum-
ers and creditors coupled with technological safeguards 15
“U.S. Attorney Announces Health Care Fraud
has helped curb cases of identity fraud.” In addition, Charges against Forty-One Defendants,” September
more secure issuance practices for driver’s licenses and 30, 2008, U.S. Attorney’s Office for the Southern Dis-
digitization of birth and death records are helping to trict of Florida press release, http://www.usdoj.gov/
catch fraud at its inception. usao/fls/PressReleases/080930-01.html.
7
The President’s Identity Theft Task Force, Combating 16
“Fugitive Convicted of Identity Theft-Related
Identity Theft: A Strategic Plan, September 2008) p. 30, Offenses,” ICE Press Release, March 19, 2009,
http://www.ftc.gov/os/2008/10/081021taskforcerepor http://www.ice.gov/pi/nr/0903/090319miami.htm
t.pdf. (wanted for double murder in Colombia); and “ICE
agents arrest INTERPOL fugitive wanted for mur-
8
Ibid., pp. 42-43.
der,” ICE Press Release, May 22, 2009 (wanted for
9
Statement of John Morton, “The Fiscal Year 2010 murder of husband with entry to the United States
Budget for Immigration and Customs Enforcement, on same day of murder), http://www.ice.gov/pi/
Customs and Border Protection, and the U.S. Coast nr/0905/090522orlando.htm. For the Polanco case,
Guard,” U.S. House Homeland Security Committee, see also INTERPOL alert at http://www.interpol.int/
June 11, 2009, http://www.ice.gov/doclib/pi/news/tes- public/data/wanted/notices/data/2008/35/2008_7535.
timonies/morton_06_11_09.pdf. asp; and “Van driver in Cottonwood school bus crash
charged with identity theft, falsely representing So-
10
“More than 80 arrested in Florida following mar- cial Security number,” ICE press release, February
riage fraud roundup,” ICE press release, May 8, 29, 2008, http://www.ice.gov/pi/news/newsreleases/
2009, http://www.ice.gov/pi/news/newsreleases/ articles/080229minneapolis.htm.
articles/080509orlando.htm.
16
17
“Mexican Drug Trafficker Convicted of Aggravated 6. “Grand jury indicts 7 employees from George’s
Identity Theft,” Department of Justice press release, chicken processing plant,” ICE Press Release, October
August 10, 2009, http://sanantonio.fbi.gov/dojpress- 17, 2007, http://www.ice.gov/pi/news/newsreleases/
rel/pressrel09/sa081009.htm; and “Francisco Javier articles/071017springfield.htm.
Miranda-Espinosa Sentenced to Serve Over 11 YEARS
in Federal Prison for Aggravated Identity Theft and 7. “Five former poultry plant employees plead guilty
Conspiracy to Launder Monetary Instruments,” U.S. to immigration, identity theft violations,” ICE press
Attorney’s Office for the District of Colorado press re- release, September 10, 2007, http://www.ice.gov/pi/
lease, February 15, 2006, http://www.usdoj.gov/usao/ news/newsreleases/articles/070910springfield.htm.
co/press_releases/archive/2006/February06/2_16_06. 20
“Lebanese Credit Card Fraudster Sentenced to Four
html. Years in Prison,” U.S. Attorney’s Office for the Central
District of California, September 26, 2006, http://
18
Total charges in the 46 cases involving foreign na-
www.usdoj.gov/usao/cac/pressroom/pr2006/127.html.
tionals: Falsely Claiming to be a U.S. Citizen: 13; Il-
legal Re-Entry After Removal: 24; Passport Fraud: 5; 21
Lucy Morgan, “Scheme thwarted after nearly tak-
Possession of Fraudulently Obtained Documents: 6; ing Florida for millions,” St. Petersburg Times, July 30,
Possession of False U.S. ID Documents: 4; Social Secu- 2008.
rity Fraud: 25; Production of False ID Documents: 4; 22
“Romanian national sentenced for possessing un-
Fraudulently Obtained U.S. Citizenship: 2.
authorized credit card numbers, identity theft,” U.S.
19
The seven worksite enforcement cases reflected in Attorney’s Office for the District of Minnesota news
our study do not include the Circuit Court cases that release, May 26, 2009, http://www.usdoj.gov/usao/
led to Flores being accepted for certiorari. Cases noted mn/econ/econ0315.pdf.
here are: 23
“Two Kenyan Women Sentenced for $15 Million
Tax Fraud Conspiracy; Leader Sentenced to 14 Years
1. U.S. v. Gonzalez, Superseding Indictment, (September
in Prison, Sister Sentenced to Five Years,” U.S. Attor-
16, 2009) http://www.jacksonfreepress.com/v3/images/
ney’s Office for the Western District of Missouri news
documents/Jose%20Gonzalez%20new%20indictment.
release, November 13, 2008, http://www.usdoj.gov/
pdf.
usao/mow/news2008/wavinya.sen.htm; see also “Two
Kenyan sisters sentenced to 14 years and 5 years in
2. “Eight arrested in RICO for visa fraud, human traf-
prison for $15 million tax fraud conspiracy,” ICE press
ficking conspiracy; ICE-led investigation reveals $6
release, November 13, 2008, http://www.ice.gov/pi/
million scheme to employ illegal aliens in 14 states,”
nr/0811/081113kansascity.htm.
ICE press release, May 27, 2009, http://www.ice.gov/
pi/nr/0905/090527kansascity.htm. 24
Sen. Jon Kyl, Opening Statement of Chairman, “S.
512, Identity Theft,” May 20, 1998.
3. “Nine Defendants Plead Guilty to Federal Identity
Fraud Charges Involving Employment at Howard In- “The Identity Theft and Assumption Deterrence
25
dustries,” U.S. Attorney’s Office for the Southern Dis- Act, S. 512,” 105th Congress, 2d Session 1998, 105 S.
trict of Mississippi press release, December 3, 2008, Rpt. 274, p.4.
http://www.usdoj.gov/usao/mss/press/DECEM- 26
On this note, Senate Report 105-274 mimics the
BER2008/Howard%20defendants%20pleas.pdf. statutory language, stating “This Senate report uses the
terms ‘identity fraud’ and ‘identity theft’ interchange-
4. “East Texas (Human Resources, Pilgrim’s Pride) ably. ‘Identity fraud’ relates to stealing an identity for
woman arrested on identity fraud charges,” ICE press counterfeit purposes, while ‘identity theft’ pertains to
release, October 9, 2008, http://www.ice.gov/pi/ assuming someone else’s identity.”
nr/0810/081009texarkana.htm.
27
Ibid., p. 5.
5. “Twelve indicted by federal grand jury in Idaho on 28
“Identity Theft Penalty Enhancement Act,” 108th
identity theft and immigration violations,” ICE press Congress, 2nd Session 2004, 108 H. Rpt. 528, p.4.
release, April 17, 2008, http://www.ice.gov/pi/news/
newsreleases/articles/080417boise.htm.
29
Ibid. at p.8.
17
30
Ibid. 44
United States v. Flores-Figueroa, 274 Fed.Appx. 501
(8th Circuit 2008), cert. granted Oct. 20, 2008; United
31
Ibid.
States v. Mendoza-Gonzalez, 520 F.3d 912 (8th Circuit
32
Senate Report, p. 10. 2008), petition for cert. filed (U.S. July 15, 2008) (No.
08-5316); United States v. Hurtado, 508 F.3d 603 (11th
33
“Myth v. Fact: Worksite Enforcement,” Department Circuit 2007); United States v. Montejo, 442 F.3d 213
of Homeland Security Leadership Journal, July 9, 2008, (4th Circuit 2006), cert. denied ___ U.S.___, 127
http://www.dhs.gov/journal/leadership/2008/07/myth- S.Ct. 366 (2006) (“knowingly” does not require defen-
vs-fact-worksite-enforcement.html. dant know the stolen identity information belonged
34
Ibid. to a real person). Mendoza was the case relied upon in
the 8th Circuit Flores-Figueroa decision. However, three
35
“53 former employees at Swift & Company meat other cases held that “knowingly” does require the de-
processing plant in Cactus, Texas, charged in fed- fendant to know the identity information belonged to
eral indictments,” ICE press release, January 10, a real person): United States v. Godin, 534 F.3d 51 (1st
2007, http://www.ice.gov/pi/news/newsreleases/ Circuit 2008); United States v. Miranda-Lopez, 532 F.3d
articles/070110amarillo.htm. 1034 (9th Circuit 2008); United States v. Villanueva-
36
“136 workers apprehended after worksite enforce- Sotelo, 515 F.3d 1234 (D.C. Circuit 2008).
ment at George’s Processing poultry-processing plant as 45
United States v. Hurtado, 508 F.3d 603 (11th Circuit
part of an ongoing criminal investigation,” ICE press 2007).
release, May 23, 2007, http://www.ice.gov/pi/news/
newsreleases/articles/070523springfield.htm.
46
Flores-Figueroa v. United States, On Petition for Writ
of Certiorari to the Eighth Circuit Court of Appeals,
37
“25 charged in N.C. identity theft investigation,” Brief for the United States (Sept. 2008).
ICE press release, August 28, 2007, http://www.ice.
gov/pi/news/newsreleases/articles/070828raleigh.htm.
47
United States v. Flores-Figueroa, 556 U.S.
___ (2009), http://www.supremecourtus.gov/
38
Janice Kephart, testimony for the record before the opinions/08pdf/08-108.pdf.
U.S. House Committee on Oversight and Government
Reform, July 23, 2009, http://cis.org/Testimony/E-
48
United States v. Flores-Figueroa, 274 Fed.Appx. 501
Verify-ChallengesAndOpportunities. (8th Circuit 2008).
39
For more on how E-Verify works, and statistical
49
United States v. Flores-Figueroa, United States v.
analysis of the program, please see Janice Kephart, “If Flores-Figueroa, 274 Fed.Appx. 501 (8th Circuit 2008).
It’s Fixed, Don’t Break It: Moving Forward with E-Ver- 50
United States v. Mendoza-Gonzalez, http://docs.
ify,” Center for Immigration Studies, September 2008, google.com/gview?a=v&q=cache:aBQPim4q9Fg
http://cis.org/Everify. J:caselaw.findlaw.com/data2/circs/8th/072660P.
40
Adam Liptak and Julia Preston, “Justices Limit Use pdf+Mendoza-Gonzalez+identity+theft+facts&hl=en&
of Identity Theft Law in Immigration Cases,” The New gl=us
York Times, May 5, 2009. 51
United States v. Mendoza-Gonzalez. The only real
41
Response to Petitioner’s Brief, Flores-Figueroa v. issue should have been the “actual” knowledge issue.
United States, January 23, 2009. Whether Gurrola was known to be an actual person,
and especially that he was still alive, seem to hold little
42
United States v. Flores-Figueroa, ScotusWiki, basis in a statutory interpretation. No other defense
http://www.scotuswiki.com/index.php?title=Flores- counsel raised the issue of whether the government
Figueroa_v._United_States. proved beyond a reasonable doubt that the defendant
43
United States v. Villanueva-Sotelo, 515 F.3d 1234 knew the victim was alive or not.
(D.C. Cir. 2008).
18
52
United States v. Mendoza-Gonzalez. More specifically, 69
At least five of the seven amicus briefs filed in this
the court stated the following: “The last antecedent rule case from interested parties were clearly seeking a politi-
holds that qualifying words and phrases usually apply cal outcome in favor of the defendant for a variety of
only to the words or phrases immediately preceding or reasons, including the Advocates for Human Rights;
following them, not to others that are more remote. See Electronic Privacy Information Center; the Mexican
2A Norman J. Singer & J.D. Shambie Singer, Suther- American Legal Defense and Educational Fund; Na-
land Statutory Construction § 47:33 (7th ed. 2007). tional Association of Criminal Defense Lawyers; and
‘While [the last antecedent rule] is not an absolute and Professors of Criminal Law. One organization consid-
can assuredly be overcome by other indicia of meaning ered itself neutral, the Professors of Linguistics, and one
... construing a statute in accord with the rule is quite party filed in support of the government and victims,
sensible as a matter of grammar.’ Barnhart v. Thomas, the Maryland Crime Victims’ Resource Center, Inc. See
540 U.S. 20, 26 (2003) (internal quotation omit- Docket for No. 08-108, Ignacio Carlos Flores-Figueroa,
ted). Therefore, we find that the plain language of § Petitioner v. United States, http://www.supremecour-
1028A(a)(1) limits ‘knowingly’ to modifying ‘transfers, tus.gov/docket/08-108.htm.
possesses, or uses’ and not ‘of another person.’”
United States v. Flores-Figueroa, 556 U.S. ___ (2009),
70
53
United States v. Hurtado, http://epic.org/privacy/ Maj. Op.
flores-figueroa/hurtado_11th_cir.pdf. 71
54
United States v. Hurtado. Concur Op.
55
United States v. Hurtado. 72
Concur Op.
56
United States v. Montejo, http://openjurist.org/442/
f3d/213/united-states-v-montejo. United States v. Flores-Figueroa, 556 U.S. ___ (2009),
73
Maj. Op.
57
United States v. Godin, http://epic.org/privacy/flores-
figueroa/godin_1st_cir.pdf. United States v. Flores-Figueroa, 556 U.S. ___ (2009),
74
Maj. Op.
58
United States v. Godin.
75
59
United States v. Godin.
Maj. Op.
60
United States v. Godin, Concur. Op., p. 10. 76
The phrase “without lawful authority” is not defined
61
United States v. Miranda-Lopez. in Section 1028. However, Hurtado states that “without
lawful authority” is much wider than meaning “theft”
62
United States v. Miranda-Lopez. and includes transfer, possession, or use outside the
63
United States v. Miranda-Lopez. purview of the law.
64
United States v. Miranda-Lopez.
77
Combating Identity Theft: A Strategic Plan, The Presi-
dent’s Identity Theft Task Force, September 2008, p.
65
United States v. Villaneuva-Sotelo, Maj. Op. http:// 39, http://www.ftc.gov/os/2008/10/081021taskforcere
www.altlaw.org/v1/cases/1420821. port.pdf.
66
United States v. Villaneuva-Sotelo, Maj. Op.
67
United States v. Villaneuva-Sotelo, Maj. Op.
68
United States v. Villaneuva-Sotelo, Dissent.
19
Backgrounder
www.cis.org
Fixing Flores
center@cis.org
(202) 466-8185
Assuring Adequate Penalties for

Identity Theft and Fraud
Washington, DC 20005-1202
1522 K Street, NW, Suite 820
By Janice Kephart
his Backgrounder proposes statutory language fixes to federal iden-
tity theft and aggravated felony language in 18 U.S.C. §§ 1028 and
T 1028A to reverse the practical implications of the May 2009 Supreme
Court ruling in Flores-Figueroa v. United States.1 Flores crippled prosecutors’
longstanding practice of using the aggravated identity theft statute by requir-
ing that prosecutors now also prove that a defendant knew he was using a
real person’s identity information, as opposed to counterfeit information not
20
connected to an actual person. The statute is an important tool for immigra-
tion enforcement. Proving a defendant’s knowledge about his crime is always
difficult, and impossible in some cases, even where there is substantial harm
and clear victims. This is especially the situation with illegal aliens who buy
identity information from third parties. The inevitable result of the Flores de-
cision is to enable perpetrators an easy defense and to tie prosecutors’ hands.
The defendant in the case was an illegal alien working at a steel plant in Il-
linois.

1522 K Street, NW, Suite 820
Washington, DC 20005-1202
(202) 466-8185 • (202) 466-8076
center@cis.org • www.cis.org
Support the Center through the Combined Federal Campaign

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Backgrounder Center for Immigration Studies

• Reviews legislative history of both Sections 1028 and 1028A.

the country, applying for immigration benefits, and,

However, the court then dismissed the issue

ment and benefit fraud investigations launched by ICE

Assuring Adequate Penalties for

Center for Immigration Studies

Support the Center through the Combined Federal Campaign

by designating 10298 on the campaign pledge card.

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