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  • WisBar News
    November 20, 2014

    Defendant's Knowledge of Actual Person Not Necessary for ID Theft Conviction

    Joe Forward

    Nov. 20, 2014 – A state appeals court recently clarified that a person can commit identity theft regardless of whether he or she knows that personally identifying information belongs to an actual person.​

    Fernando Moreno-Acosta, an undocumented immigrant worker, used Kimberly Herriage’s social security number to obtain employment at a fast food restaurant.

    The state charged him with unauthorized use of an individual’s personal identifying information or documents, a Class H felony under Wis. Stat section 943.201(2).

    Under that provision, a person is guilty of ID theft if he or she claims to be someone else by “intentionally” using personally identifying information without consent or authorization in order to obtain a benefit or something of value, including employment.

    Under Moreno-Acosta’s proposed jury instructions, the state had to prove that Moreno-Acosta knew the social security number belonged to an actual person. 

    That is, he argued that he could not commit the “intentional” act of ID theft unless he knew the an actual person did not consent or authorize the use of her personally identifying information. Apparently, Moreno-Acosta argued that he did not know an actual victim was involved.

    The trial judge refused Moreno-Acosta’s proposed jury instruction and he was convicted by a jury. He appealed. Recently, the state appeals court affirmed the judgment.

    In State v. Moreno-Acosta, 2013AP2173-CR (Nov. 19, 2014), a three-judge panel for the District II Court of Appeals clarified that a person still commits ID theft under section 943.201(2), regardless of whether the defendant knows a real person is involved.

    The appeals panel agreed that the term “intentionally” means the mental purpose to use personal identifying information to obtain something of value and does not require “knowledge” that the personally identifying information belongs to another person.

    “The statute’s focus on mental purpose, rather than knowledge, distinguishes it from the aggravated identity theft statute at issue in Flores-Figueroa, relied upon by Moreno –Acosta,” wrote Judge Lisa Neubauer, referring to a 2009 U.S. Supreme Court case.

    “The federal statute provides for an aggravated penalty if, during certain felony violations, the defendant knowingly uses the personal identifying information of another person,” Neubauer wrote, pointing to 18 U.S.C. section 1028A(a)(1).

    The panel distinguished “intentionally” from “knowingly” to determine that Wisconsin’s statute focuses on the actor’s intention to use ID information that does not belong to him or her. It does require the defendant’s knowledge of an actual person. Neubauer noted:

    “If the legislature had wanted the statute to mean what Moreno-Acosta says it means, the legislature could have said that that the actor intentionally uses personal identifying information known to belong to an actual person, or language to that effect. It did not.”

    The panel clarified that in ID theft cases, the prosecutor must prove the information used belonged to an actual person, but it need not prove the defendant knew that.

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