Thursday, February 26, 2009
A case pending before the Supreme Court, Flores-Figueroa v. U.S., allows the Court the opportunity to spell out the proof that federal prosecutors must offer in order to obtain a conviction for criminal identity theft under federal law. The Bush administration had increased the use of the identity fraud criminal charges in immigraton enforcement, such as in the raid on the Agriprocessors plant in Postville, Iowa in May 2008. Federal appellate courts are divided over the government's burden of proof in aggravated identity theft cases. Specifdically what is at issue is whether prosecutors must prove that defendants knew that fraudulent Social Security numbers or other documents they used belonged to a real person as opposed to being fabricated. The Justice Department argues that prosecutors do not have to prove knowledge, and three appellate courts have agreed with that position. Three others, however, have ruled otherwise.
NY Times reporters Adam Liptak and Julia Preston report on the oral argument yesterday in Flores-Figueroa v. U.S.. Their read: "Several justices appeared persuaded on Wednesday that the identity-theft law was at least ambiguous enough that the `rule of lenity' ought to apply. That rule, as Justice Antonin Scalia summarized it from the bench, is that `the tie goes to the defendant.'”