Focusing public attention on emerging privacy and civil liberties issues

Flores-Figueroa v. United States

Top News

  • For Identity Theft Law, Supreme Court Rules that the Government Must Prove Intent to Impersonate: In a critical case for the emerging field of identity management, the Supreme Court today reversed a lower court opinion and ruled unanimously in favor of the petitioner. The Court held that individuals who provide identification numbers that are not their own, but don’t intentionally impersonate others, cannot be subject to harsh criminal punishments under federal law. The case involved a mandatory 2-year prison term, added on to a prior conviction, for presenting a fake Social Security Number to an employer. EPIC filed an amicus brief in support of the petitioner, arguing that the "unknowing use of inaccurate credentials does not constitute identity theft." For more information, see EPIC, Flores-Figueroa v. United States. (May. 4, 2009)
  • Supreme Court to Hear Argument in "Identity Theft" Case, EPIC Urges Justices to Protect Privacy Enhancing Technologies: On Wednesday, the Supreme Court will hear arguments in a case that will determine whether individuals who include identification numbers that are not theirs, but don't intentionally impersonate others, can be subject to harsh criminal punishments under federal law. In Flores-Figueroa v. United States, the petitioner challenged his conviction for "aggravated identity theft." EPIC filed a "friend of the court" brief, on behalf of 17 legal scholars and technical experts, urging the Justices to protect techniques that allow individuals to safeguard privacy. EPIC explained that the crime of "identity theft" should require an intent to impersonate another. The EPIC brief urges the Court to avoid "a precedent that might inadvertently render the use of privacy enhancing pseudonyms, anonymizers, and other techniques for identity management unlawful." For more, see EPIC's Flores-Figueroa v. United States page. (Feb. 23, 2009)
  • EPIC, Experts Urge Supreme Court: Protect Identity Management Techniques. EPIC filed a "friend of the court" brief in the United States Supreme Court, urging the Justices to protect techniques that allow individuals to safeguard privacy. The brief was filed on behalf of 17 legal scholars and technical experts. In Flores-Figueroa v. United States, the Court will be asked to determine whether individuals who include identification numbers that are not theirs, but don’t intentionally impersonate others, can be subject to harsh criminal punishments for "identity theft." EPIC explained that the crime of identity theft should require an intent to impersonate another as Congress made clear in the federal laws under review. The brief urges the Court to not "set a precedent that might inadvertently render the use of privacy enhancing pseudonyms, anonymizers, and other techniques for identity management unlawful." (Dec. 22)
  • Supreme Court to Hear Argument in Identity Theft Case
    Today, the Supreme Court announced that it will review a case that imposed enhanced criminal identity theft penalties on a person who presented an identity document bearing his own name. The Court will determine whether individuals who include identification numbers that are not theirs, but don’t intentionally impersonate others, can be subject to harsher punishments under federal law. In Flores-Figueroa v. United States, the petitioner challenged his conviction for "aggravated identity theft" under the Identity Theft Penalty Enhancement Act, stating that he did not commit identity theft when he used an identity document with his real name and an identity number that was not his to maintain employment. (Oct. 21).

Background

In Flores- Figueroa v. United States, the Supreme Court will determine whether individuals who include identification numbers that are not theirs, but don't impersonate others, can be subject to harsher punishment under federal law. Ignacio Flores-Figueroa challenges his conviction for "aggravated identity theft" under the Identity Theft Penalty Enhancement Act. The federal law provides for a longer prison term when a person "knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person."

Flores-Figueroa identified himself by his real name to his employer, but provided a false Social Security Number and false Permanent Resident Number. Both ID numbers were issued to someone else, but neither person shared Flores-Figueroa's name, and the government presented no evidence that Flores-Figueroa knew that the ID numbers were assigned to real people. The case will resolve whether a person can be convicted of aggravated identity theft if he does not "knowingly" use an ID number assigned to "another person."

Federal courts have split over this issue. Courts in the First, Ninth, and D.C. Circuit, which cover New England, seven western states, and the nation's capitol, require the government to prove that alleged identity thieves knew that their bogus ID numbers belonged to real people. Conversely, courts in the Fourth, Eighth, and Eleventh Circuits, which cover the coastal southeast, several gulf states, and much of the upper midwest, permit convictions even if the government concedes that the accused simply made up an ID number. In his petition requesting Supreme Court review, Flores-Figueroa aked the Supreme Court to apply one rule to the entire country, arguing that "this division of authority is considered, entrenched, and untenable. The continued disparate application of the severe penalties to similarly situated defendants should not endure."

On December 22, 2008, EPIC filed a "friend of the court" brief, urging the Justices to protect techniques that allow individuals to safeguard privacy. The brief was filed on behalf of 17 legal scholars and technical experts.

The Identity Theft Penalty Enhancement Act

The Identity Theft Penalty Enhancement Act, 18 U.S.C. § 1028A, imposes a mandatory two-year sentence upon persons who commit "aggravated identity theft." Aggravated identity theft is defined as:

18 U.S.C. § 1028A. Aggravated identity theft
(a) Offenses.--
(1) In general.—Whoever, during and in relation to any felony violation enumerated in subsection (c), knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person shall, in addition to the punishment provided for such felony, be sentenced to a term of imprisonment of 2 years.

In 2007, Flores-Figueroa pled guilty to misuse of immigration documents and entry without inspection. He pled not guilty to aggravated identity theft. He was convicted, though the identification he presented to his employer displayed his own name.

The Circuit Split

Three Federal Appeals Courts Require "Knowledge" for an Identity Theft Conviction

On February 15, 2008, the D.C. Circuit ruled that to obtain a conviction under the Identity Theft Penalty Enhancement Act, "the government must prove the defendant actually knew the identification in question belonged to someone else." United States v. Villanueva-Sotelo, 515 F.3d 1234, 1235 (D.C. Cir. 2008).

On July 17, 2008, the Ninth Circuit concurred, ruling that to obtain a conviction under the Identity Theft Penalty Enhancement Act, "the government [is] required to prove that [the accused] knew that the identification belonged to another person." United States v. Miranda-Lopez, 532 F.3d 1034, 1040 (9th Cir. 2008).

On July 18, 2008, the First Circuit agreed, holding that to obtain a conviction under the Identity Theft Penalty Enhancement Act, "the government must prove that the defendant knew that the means of identification transferred, possessed, or used during the commission of an enumerated felony belonged to another person." United States v. Godin, 534 F.3d 51, 53-54 (1st Cir. 2008).

Three Federal Appeals Courts Do Not Require "Knowledge" for an Identity Theft Conviction

On March 29, 2006, the Fourth Circuit ruled that to obtain a conviction under the Identity Theft Penalty Enhancement Act, "the defendant need not be aware of the actual assignment of the [ID] numbers to an individual to have violated the statute." United States v. Montejo, 442 F.3d 213, 217 (4th Cir. 2006).

On November 21, 2007, the Eleventh Circuit concurred, ruling that the Identity Theft Penalty Enhancement Act, "[does] not require the government to prove that [a defendant] knew that the means of identification he possessed and used belonged to another actual person." United States v. Hurtado, 508 F.3d 603, 610 (11th Cir. 2007) (per curiam).

On March 28, 2008, the Eighth Circuit agreed, holding that to obtain a conviction under the Identity Theft Penalty Enhancement Act, "the Government [is] not required to prove that [the accused] knew that [the name and social security number used were legitimately assigned to] a real person." United States v. Mendoza-Gonzalez, 520 F.3d 912, 915 (8th Cir. 2008). On April 23, 2008, the Eighth Circuit applied this interpretation in United States v. Flores-Figueroa, upholding Flores-Figueroa's conviction despite 1) his use of his real name on his identity documents; and 2) his lack of knowledge that the ID numbers were assigned to anyone. Flores-Figueroa v. United States, 274 Fed. Appx. 501 (8th Cir. 2008).

Legal Documents

Flores-Figueroa v. United States, 274 Fed. Appx. 501, (8th Cir. 2008), cert. granted, 2008 U.S. LEXIS 7827 (U.S. October 20, 2008) (No. 08-108).

United States v. Villanueva-Sotelo, 515 F.3d 1234 (D.C. Cir. 2008)

United States v. Miranda-Lopez, 532 F.3d 1034 (9th Cir. 2008)

United States v. Godin, 534 F.3d 51 (1st Cir. 2008)

United States v. Montejo, 442 F.3d 213 (4th Cir. 2006), cert. denied, 75 U.S.L.W. 3169 (U.S. Oct. 2, 2006) (No. 05-11820)

United States v. Hurtado, 508 F.3d 603 (11th Cir. 2007) (per curiam), cert. denied, 76 U.S.L.W. 3644 (U.S. June 9, 2008) (No. 07-9429).

United States v. Mendoza-Gonzalez, 520 F.3d 912 (8th Cir. 2008).

News Items