Identity Theft Victim Defense.

Drafting:

(Begin with the mandatory H2).

Identity-theft allegations on their own are not enough to establish a defendant’s criminal guilt. To prove a charged identity-theft offense, prosecutors must present competent evidence establishing the elements required by the applicable substantive federal law, which may include:

• That the defendant knew about the alleged conduct that is charged as identity theft, as required by the applicable substantive federal law.
• That the charged identity-information use was unauthorized.
• That the defendant had the required intent as a matter of federal law to commit the identity-theft crime or crimes at hand.
• That the defendant is the person who performed the alleged transaction(s) utilizing another person’s identity information.

In most cases, an effective identity-theft defense will involve identifying which of these elements the federal prosecutors are unable to prove beyond a reasonable doubt. The defense team must scrutinize the case file and assess the available evidence, identifying any gaps in the government’s case. During the trial, the defense will then contest the government’s ability to prove the missing or insufficient elements, and the defendant’s lawyer will provide any necessary documentation or testimony to discredit the government’s evidence in that area.

Throughout the trial, the presiding federal judge will make legal determinations as appropriate. However, the ultimate verdict will rest with the jury, which must weigh the evidence presented. The jury must reach the conclusion that all elements of the identity-theft offense were established beyond a reasonable doubt for them to find the defendant guilty. In cases where the evidence is insufficient to satisfy any of the government’s burden of proof requirements, the defense should challenge the government’s evidence presented in court to seek a judgment of acquittal or a not-guilty verdict at trial. This will rely on the lawyer’s ability to argue the law and the facts of the case in front of the jury.

How can digital evidence misidentify the person behind an allegedly fraudulent transaction?

An IP address only identifies a network access point, not the particular person behind the transaction or communication in question. In many cases, this makes it impossible for the prosecution to prove that the defendant was the person responsible for using the allegedly fraudulent account. In the following scenarios, this is often due to:

• A network access point is shared among multiple users in a public Wi-Fi setting (e.g., coffee shop, library, airport) or a workplace, home, or business network, and someone other than the defendant is responsible for using the defendant’s identity information.
• A VPN or proxy server is used to conceal the user’s actual network access point.
• Malware is installed on the defendant’s computer or router, allowing an unauthorized person to access the network or the information the network provides.
• An unauthorized person has obtained control of the defendant’s wireless router and password.
• A defendant’s email, password, or other identity information has been hacked or otherwise illegally obtained, and the unauthorized user has then gained access to a network through the defendant’s account.
• The unauthorized use of the defendant’s wireless router and IP address is the result of spoofing.

These are only a few examples of how the prosecution’s digital evidence could be misleading. The government must prove beyond a reasonable doubt that the defendant committed each element of the charged offense; an IP address alone generally does not establish who performed the conduct. However, there are plenty of other possibilities.

Synthetic Identity Fraud and Database Associations

Synthetic identity fraud is another common form of identity theft. In these cases, the perpetrator does not steal a particular person’s identity, but rather creates a new, synthetic identity by combining a real Social Security number (often that of a minor or a deceased person) with fake personal information. Again, this makes it impossible to identify the person behind the transactions.

Similarly, even if a database links a defendant to a fraudulent transaction or account, it does not necessarily prove the defendant’s identity. An unauthorized person could have opened an account and linked the defendant’s information to a database. This scenario often occurs with hacked employee credentials, where a fraudulent actor uses an employee’s authorized access to gain entry to a database.

In other cases, a person’s credentials may be compromised, providing unauthorized individuals access to personal data. The resulting synthetic identity fraud can lead to a target individual being erroneously linked to illegal transactions.

These are just a few examples. For more information about common forms of identity theft and how to defend against these crimes, contact the defense lawyers at Spodek Law Group today.

Todd Spodek represented the juror at the centre of the challenge to the Ghislaine Maxwell verdict.

Which credit and recovery steps address identity theft that creates criminal, medical, or employment problems?

When someone steals their identity to get credit cards, loans, medical services, or to work for an employer illegally, victims have several options available to help protect them. The specific recovery step that an identity-theft victim needs to take depends on the situation. However, three common options for mitigating damages involve:

• Contacting the three nationwide credit bureaus to place fraud alerts and credit freezes on their credit reports.
• Filing identity-theft reports with the Federal Trade Commission (FTC). FTC identity-theft reporting can help affected consumers generate an identity-theft recovery plan.
• Filing police reports. Creditors or insurers may request documentation in order to handle identity-theft disputes.

These are not the only options for victims of identity theft. For example, if their identity information has been used to falsely open a credit card or loan, a victim can dispute the credit report. To do so, the consumer must notify both the credit bureau and the company that furnished the information. Once both parties are notified, the victim can provide the evidence necessary to clear the fraudulent transaction from their credit report.

Criminal and Employment Identity Theft

Beyond problems with credit reports, criminal and employment identity theft can pose major problems for identity-theft victims. In cases of criminal identity theft, a fraudulent actor uses someone else’s identity to commit a crime and is subsequently identified as a suspect or convicted of the crime. As a result, the identity-theft victim inherits the false arrest record and/or criminal conviction. Similarly, if someone uses a victim’s identity to obtain employment, the identity-theft victim may become liable for any crimes committed during the employment.

In cases of employment identity theft, a perpetrator uses a victim’s identity to obtain a job. This often has financial implications for the victim, as well as tax implications. The victim will be on the employer’s books and may find that the Internal Revenue Service (IRS) is expecting taxes for income that the victim never earned.

These are just some of the many possible consequences of identity theft. However, for identity-theft victims, it is important to recognize that there are different identity-theft scenarios. When you are the victim of identity theft, you may need to take steps to recover and mitigate the damage done to your reputation, credit history, or finances. But when you are facing a federal criminal identity-theft investigation, your primary focus will need to be your legal defense.

When can one identity-theft event trigger state, federal, professional, and civil consequences?

Aggravated Identity Theft under 18 U.S.C. § 1028A

Aggravated identity theft is a unique federal offense defined in 18 U.S.C. § 1028A. Unlike most other federal identity-theft offenses, aggravated identity theft carries a mandatory consecutive two-year federal prison sentence. As a result, defendants convicted of this crime generally must receive an additional two-year term of imprisonment, regardless of the penalties for the accompanying charges.

A unique aspect of 18 U.S.C. § 1028A is that it imposes this additional prison sentence in addition to the penalty for the predicate criminal offense for which the identity theft is alleged to have facilitated. Additionally, not all crimes can be classified as aggravated identity theft, and this offense requires that the predicate offense be a felony offense enumerated in 18 U.S.C. § 1028(c).

Notably, 18 U.S.C. § 1028A’s additional sentence generally cannot be served concurrently with a sentence imposed under another provision of law, although a court may permit concurrent service with another § 1028A sentence under the statute’s limited exception. This means, in many cases, § 1028A creates enhanced penalties that are not otherwise possible in federal criminal cases.

Dual Sovereign Doctrine and Double Jeopardy

A defendant facing criminal identity-theft charges in federal court may also be at risk for state charges. This is because while the Fifth Amendment to the U.S. Constitution prohibits double jeopardy, which protects against prosecution for the same offense twice, it does not preclude dual sovereign prosecution.

The “dual sovereign” doctrine permits both the federal and state governments to prosecute a defendant for the same act. For example, the criminal identity theft used to open a fraudulent account may qualify for prosecution under both state and federal laws.

Professional License Suspension or Revocation

A criminal identity-theft charge can also pose a risk to a defendant’s professional license. If the defendant is convicted at trial, a felony conviction carries the risk of administrative penalties including suspension or revocation of their license. In many cases, the resulting administrative proceedings occur in tandem with criminal prosecutions. These proceedings can lead to substantial loss of income, loss of professional credentials, and restrictions on future employment.

If You Want Someone to Look at Your Case

Reading about a charge is not the same as having someone read your file. Spodek Law Group keeps an attorney on call around the clock, and the first consultation costs nothing and runs as long as your questions do. The number is 888 348 8028.