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GETTING PERSONAL: IDENTITY THIEVES MAY BE CLOSER THAN YOU THINK
Catherine M. Guthrie, Research Attorney

With an estimated 8 to 9 million American victims each year and a recent surge in media coverage, most of us are familiar with the concept of identity theft.1 This crime occurs when someone uses another person's personally identifying information, like their name, credit card number, Social Security number, or driver's license, without permission. The stolen data is then used for any one (or more) of a variety of fraudulent activities, nearly all of which are designed to financially benefit the perpetrator.

As the problem has grown, so has the legal community's response. There are now both federal and state laws criminalizing such conduct, thus allowing judges and juries to convict ID con artists and scammers. For example the Identity Theft and Assumption Deterrence Act of 1998, one of the first federal laws on the issue, explains that it is a federal crime when someone "knowingly transfers or uses, without lawful authority, a means of identification of another person with the intent to commit, or to aid or abet, any unlawful activity that constitutes a violation of federal law, or that constitutes a felony under any applicable state or local law."2

Equally valuable in the fight against this crime is the initial deterrence of identity theft. Thousands of articles, books, courses, and websites offer information about how to protect oneself from falling victim to such predators.3 Specific tips include shredding financial documents, providing Social Security numbers only when absolutely necessary, and using anti-virus software on home computers. The underlying assumption is that it is necessary to safeguard personal data from strangers. In other words, it is often presumed that the criminal contact will come from an outsider unknown to the victim. However, "contrary to what most consumers believe, in cases where the thief is found out, over half of the time the fraud operator turns out to be a coworker, neighbor, in-home employee, friend or family member."4 The following case summaries are illustrative of this issue.

Good Fences Make Good Neighbors5

Michelle Bogan and her friend, Delphine Coleman, opened a Michigan bank account under the name of Sonya Stubbs. Sonya was Michelle's mentally handicapped neighbor. Delphine actually pretended to be Sonya, and the bank's employees failed to confirm her story with photo identification. As a result the criminal duo was able to obtain car loans, vehicles, and money orders in the victim's name. Eventually police interviewed Sonya, the fraud was exposed, and Michelle was convicted on one count each of identity theft and financial institution fraud. On appeal Michelle argued that she was entitled to a reduction in her offense level because she had accepted responsibility for the crime. Under the relevant sentencing guidelines such behavior would indeed mitigate her punishment. However the facts of the case, which included Michelle's repeated attempts to justify her unlawful conduct to investigators, indicated that she had not actually and honestly accepted liability for her illicit acts.

After an unexplained increase in her car insurance rates in 2003, victim Shyla Dashiell discovered that someone had received a traffic ticket in her name and failed to appear at the related court hearings. As a result her driver's license had been suspended and there was an outstanding warrant for her arrest. The true perpetrator was eventually identified as Shyla's former friend and neighbor, Melissa Presba. Melissa had provided Shyla's birth date, address, maiden name, and social security number when she was pulled over by a State Trooper. Melissa tried unsuccessfully to have her identity theft conviction reversed on the grounds that, inter alia, she should have been charged instead with "criminal impersonation" crimes. After analyzing the content and legislative history of the relevant statutes the appellate court disagreed, holding that identity theft was in fact the correct and applicable charge.

Bad for Your Health6

Constance Occident worked as a nurses' aide at INOVA Alexandria Hospital from 1999 to July 2005. During this time she surreptitiously acquired personal identifying information from both patients and co-workers. The information was then passed along to a co-conspirator, Beurn Daphne Ferdinand, in New York where it was used to create new credit card accounts, access existing accounts, and obtain replacement cards. All together the pair amassed nearly $250,000 worth of luxury items using the stolen data. Occident defended her actions at trial by claiming that (1) she had believed Ferdinand was only using the victim's names as references for job applications, and (2) Ferdinand used voodoo to make her comply with the scheme. The trial court was equally unimpressed with both arguments and Constance was convicted of a myriad of charges, including aggravated identity theft. Her convictions were affirmed on appeal.

In 2002 Patricia Morris pled guilty to multiple charges, including one count of identity theft. As part of her plea agreement Patricia admitted to taking personal data from three elderly persons. Patricia had worked for each of these victims as a home health care aide. Their information was used to apply for unauthorized credit cards, which in turn were used for various purchases and cash advances. Patricia was sentenced to nearly four years in jail, a lengthy period time based in part on the fact that she abused her position of trust, victimized particularly vulnerable people, and had a significant criminal history. She contested the sentence, primarily claiming that her lawyer provided ineffective assistance. Specifically, Patricia argued that her lawyer failed to properly investigate and mitigate her criminal history. The court did not find grounds to support her allegations and denied her motion for relief.

All in the Family 7

When New Yorkers Theresa Vandermuelen and her husband, Wayne Vandermuelen, expended over $150,000 from bank accounts held jointly with Theresa's elderly grandmother, Helen Palko, the court held the couple guilty of larceny. However the charges did not stop there. Since the pair also opened a credit card in Helen's name with Helen's identifying information and made multiple charges on the account, Theresa and Wayne were convicted of third degree identity theft. On appeal the Vandermuelens argued that, among other things, they were entitled to open the credit card account under a power of attorney (POA) for Helen. This claim failed because neither the credit card application, nor bank witness's testimony, indicated that the card was obtained pursuant to the POA, or on Helen's behalf.

Janet Mallett obtained over $4500 in cash advances and purchases using a newly issued credit card. She also had one of her friends authorized to use the same account. The problem? The card was obtained under Janet's mother's name, Anthony Mallet. These nefarious acts were accomplished using Anthony's place of employment, maiden name, social security number, and date of birth. They were detected when Anthony received information about her account in the mail. Janet was convicted of identity theft by an Iowa jury and her subsequent appeal, which rested partly on the interpretation of an ambiguity in the applicable ID theft statute, was unsuccessful.

Up
1http://www.ftc.gov/bcp/edu/microsites/idtheft/consumers/about-identity-theft.html and http://www.privacyrights.org/ar/idtheftsurveys.htm. Note that estimates on the number of victims per year vary by source. For media coverage, see for example: Michelle Andrews, Medical Identity Theft Turns Patients into Victims, U.S. News & World Report (Feb. 29, 2008); Christopher Helman, Fowl Play, Forbes, Page 42, Vol. 181, No. 3 (Feb. 11, 2008); William Kresse, Business Schools: A New Ally in the Fight against Identity Crime, The Police Chief, Page 14, Vol. LXXV, No. 2 (Feb. 2008); Bill Brubaker, Government Sites May Be Identity Thief's Best Friend: Millions of Social Security Numbers Are Easy to Find, Houston Chronicle, Page A29 (Jan. 2, 2008); Freeze, Id Thief!, Newsweek, Page 66, Vol. 150, No. 13 (Sept. 4, 2007). For more resources on Identity Theft, see: Sabrina I. Pacifici and Catherine M. Guthrie, Identity Theft: An Annotated Bibliography of Federal, State, Consumer and News Resources, http://www.llrx.com/features/idtheft.htm (last updated on Sept. 17, 2006).
2http://myfloridalegal.com/usc1028.pdf; P.L. 105-318, Enacted H.R. 4151, October 30, 1998, 112 Sat. 3007, codified at 18 U.S.C 1028.
3See for example: Kyo Suh, Preventing Identity Theft, Criminal Justice, Page 563, Vol. 22, No. 2 (Summer 2007); Terri Cullen, The Wall Street Journal Complete Identity Theft Guidebook: How to Protect Yourself from the Most Pervasive Crime in America (Three Rivers Press, 2007); courses offered by the Office for Victims of Crime Training and Technical Assistance Center, https://www.ovcttac.gov/; and the Federal Trade Commission Identity Theft Information website at http://www.consumer.gov/idtheft.
4The Javelin 2007 Identity Fraud Survey Report: Consumer Version: How Consumers Can Protect Themselves, (Feb. 2007), http://graphics8.nytimes.com/images/blogs/freakonomics/pdf/Javelin%20Report%202007.pdf
5The following summaries are derived from: State v. Presba, 126 P.3d 1280 (Wash. Ct. App. 2005) and United States v. Bogan, 166 Fed. Appx. 205 (6th Cir. 2006), respectively.
6The following summaries are derived from: United States v. Occident, 243 Fed. Appx. 777 (4th Cir. 2007) and United States v. Morris, No. CRIM. 3:02ER53(SRU), 2005 WL 80881 (D. Conn. Jan. 12, 2005), respectively.
7The following summaries are derived from: People v. Vandermuelen, 42 A.D. 3d 667 (N.Y. App. Div. 2007) and State v. Mallett, No. 02-1906, 2003 WL 22901008 (Iowa Ct. App. Dec. 10, 2003), respectively.