The First Circuit Court of Appeals upheld the conviction of Thomas Kasenge for aiding and abetting the theft of his own identity. Kasenge’s housemate, Pius Mayanja visa expired and he was living in this country without proper immigration documentation. As a result he was unable to find work. Kasenger allowed Mayanja to use his driver’s license and social security card in exchange for a small fee.

Kasenge was charged with aggravated identity theft. He argued that he could not be convicted because he consented to Mayanja using the license and social security card.

The statute reads:

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.

Kasenge argued that since he allowed Mayanja to use his identification Mayanja had lawful authority to use the identification and therefore it was not illegal. But the Court, citing United States v. Yeifrin Rafael Ozuna-Cabrera ruled that the statute “does not require theft, or any other illicit method of procurement, of the means of identification.”

Kasenge also argued that since “any transfer, possession, or use of another person’s means of identification during and in relation to a § 1028A(c) felony is always illegal, it could never be done with lawful authority under our interpretation of § 1028A, thus rendering the phrase “without lawful authority” redundant.” However the court found numerous examples of “transfer, possession, or use of another person’s means of identification” to be legal such as the transfer of identification to an employer to allow an employer to process a job application. Thus it rejected Kasenge’s argument and upheld his conviction.

The unspoken statement is that since aggravated identity theft does not actually require theft of documents but only the “transfer, possession, or use of another person’s means of identification” of another person’s identity documents one can aid and abet another person’s use of your own documents.

Friday, we looked at the problems that immigrants have with the law. Today we look at another aspect of the problem.

Juan Teresco was convicted of attempted assault, an aggravated felony, much like the thee problem of Satbir Singh we discussed, Friday.

As a result of his 1997 conviction, Turesco, a citizen of El Salvador was deported. After being deported he came back to the country. In 2006 he was arrested in New York and he gave the name of Danny Ortega. After being told that it was a crime to lie to a Federal agent, he admitted that he was Juan Turesco. He also admitted that he was born in El Salvador and that he had been deported. At the time of his arrest the officers found an ID in the name of Danny Ortega on him. He was indicted for illegally reentering the country.

But Turesco’s troubles were just beginning. He told his lawyer, a Federal Public Defender that his name was really Danny Ortega and that he was a US citizen. He gave his lawyer a copy of a birth certificate for Danny Ortega. His lawyer then forwarded the birth certificate to the US attorney expecting a dismissal of the case.

But instead the US attorney got a superceding indictment charging Turesco with illegally entering the country, falsely claiming to be a United States citizen and an aggravated identity theft.

At trial, the government called the real Danny Ortega and Ortega’s mother to show that Turesco lied about his identification. They also called the INS agent who witnessed Turesco’s being placed on a plane and being deported in 1997.. Furthermore they called a fingerprint expert to testify that Turesco’s fingerprints were identical to the fingerprints of the person deported in 1997.

Turesco was convicted on all three counts. He was sentenced to 125 months on the illegal reentry and lying about his citizenship. He was give a 24 month consecutive sentence on the aggravated identity theft count,

The trial judge refused to give an instruction that the jury had to find that the government had to prove beyond a reasonable doubt that Turesco knew that the identification belonged to someone else. Therefore the appellate court reversed the conviction on count three which was an aggravated identity theft based on the recent Supreme Court decision in Flores-Figuroa v. Holder (See post of May 6, 2009) finding that the government had to prove beyond a reasonable doubt that the defendant knew that the false ID belonged to someone else.

After the trial judge gave most of his instructions he adjourned the court for the day. The next morning he told the lawyers that the marshals told him that Turesco refused to come to court. Turesco’s lawyer asked the court to wait until he could go to the detention center to get his client. The court refused. The judge instructed the jury to ignore Turesco’s absence from the court. While a co-counsel represented Turesco, his lawyer went and got him. Although Turesco had earlier begged to come to court, the marshal had refused to double cuff him which was necessary due to a shoulder injury. His attorney asked for a mistrial on Fifth and Sixth amendment grounds. The court denied the motion. During deliberation the jury asked to see Turesco and their request was granted.

The appellate court found that Turesco had a right to be present but that the right could be waived. It further found that the trial court had not held the necessary evidentiary hearing to determine if Turesco waived the right. But it also found that due to the overwhelming amount of evidence and due to Turesco’s presence when the jury wanted to see him the error was harmless and he would have been convicted anyway.

The lesson is don’t lie to the authorities. Don’t talk to the authorities but in any case don’t lie to them. The second lesson is don’t lie to your lawyer. It sure got Turesco is a lot more trouble when he said that Ortega’s birth certificate was his. And the third lesson is does anyone really believe Turesco deserves 125 months for his violation of the law?

The Supreme Court ruled in Flores-Figueroa v. United States that to convict someone under the aggravated identity theft statute the government must prove that the defendant knew that they were using the ID of another individual.

The aggravated identify theft statute mandates that defendants be given an additional two year sentence on top of the sentence they would normally receive when they use a false ID in connection with the violation of a specified list of crimes.

Specifically it ruled that “knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person.” means that the defendant not only must knowingly possess or use identification but that the defendant, in order to be convicted, must know that the identification is that of another person. In practice it means that an individual who makes up a nine digit Social Security number that just so happens to be that of another person cannot be convicted unless they know that the Social Security number belongs to another person.

This does not mean that people using false ID’s won’t be punished. There are plenty of laws on the books to do that. But it does mean that the additional two years for an aggravated identity theft will generally be saved for those who steal the ID of another and not those who are unlucky enough when inventing an ID to invent an ID that is legitimately in use. Also, it will prevent prosecutors from coercing a plea from an illegal immigrant, such as Flores-Figueroa who invented a nine digit Social Security number to give to an employer to get a job, by threatening them with an amended indictment charging an aggravated identity theft violation.