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Aggravated identity theft offense applied to defendant’s use of a dead person’s identity

The issue in U.S. v. Zuniga-Arteaga is whether the defendant can be convicted of aggravated identity theft under 18 U.S.C. §1028A(a)(1) where the person whose identity was stolen is no longer living. The 11th Circuit Court of Appeals held in this decision that the person whose identity was stolen does not have to be a living person. Using a fictitious name, the defendant first attempted to enter to the U.S in 1995, she had claimed to be born in Texas but she was returned to Mexico when immigration officers discovered she was not the person she claimed. Subsequently she returned to the U.S. and arrested for drug offense. She gave the name M.S.G. (the opinion only gives the initials) and provided false identification. At her initial appearance in the drug case, she admitted she was Zuniga-Arteaga, the person named in the indictment. Eventually she was convicted in federal court of drug conspiracy and sentenced. Some eight years later I.C.E. agents encountered her at the federal prison while serving her sentence where she claimed to be MSG born in Mercedes Texas. She gave ICE agents a date of birth belonging to MSG who lived and died prior to the defendant’s use of the name. On two subsequent occasions she told ICE agents that she was MSG and presented ICE agents with a valid birth certificate for MSG. Meanwhile law enforcement officials found the defendant was not MSG and eventually located MSG’s brother who told them MSG died as a child in 1960.

The defendant was indicted for falsely representing herself as a U.S. and with using the means of identification of another person in relation to the 18 U.S.C. §911 offense, making this aggravated identity theft, in violation §1028A(a)(1). This section makes it a crime for anyone to knowingly transfer, possess, or use, without lawful authority, a means of identification of another person, in relation to the any of the felony violations listed in the statute.

The defendant argued she could not be convicted of the aggravated felony because the term person in the statute refers to the living and does not cover theft of the identity of a person who has died and her use of M.S.G. identity falls outside the scope of the statute. In attempting to determine whether Congress meant the word “person” to include living as well as dead person, the 11th Circuit considered the context the word was used. The Court found that the term “means of identification” was not meant to be limited to living persons. A further analysis of other provision in the statute convinced the court that Congress intended the term “person” in section1028 to include living and dead individuals. Furthermore, the 11th Circuit concluded that the purpose of the statute is supported by this interpretation because the theft of deceased person’s identities is not a victimless crime and has a real consequence for the living such as the beneficiaries of the decedents and businesses who are misled into relying on the stolen identity information. The Court also concluded that Congress likely recognized this form of identity theft needed deterrence because stolen identities of real people have a broad range of uses, for example, using a real persons birth certificate to obtain and authentic passport and freely enter and depart the U.S. A dead person is not going to create conflicting paper trail or notice strange activity on their credit reports.