Award-Winning Philadelphia Criminal Defense Lawyers for Philadelphia, PA Identity Theft Charges
The Philadelphia criminal defense lawyers of Goldstein Mehta LLC represent individuals who are under criminal investigation or facing charges relating to Identity Theft in both state and federal court. Identity Theft is a serious charge because it is often charged as a felony under Pennsylvania law. The prosecution often seeks significant sentences and restitution in Identity Theft cases due to the lasting effect that Identity Theft can have on a victim's credit score and financial situation. As with all theft charges, a conviction for Identity Theft can make it extremely difficult to find employment, particularly in industries where the employee could come into contact with any kind of sensitive customer information. If you are under investigation for or facing Identity Theft charges, call us at 267-225-2545 for a free criminal defense strategy session with one of our award-winning defense lawyers today.
What is Identity Theft?
Pennsylvania's Identity Theft statute can be found at 18 Pa.C.S. § 4120. The statute provides:
"A person commits the offense of identity theft of another person if he possesses or uses, through any means, identifying information of another person without the consent of that other person to further any unlawful purpose."
The statute makes each use of another person's identifying information a separate offense. This means that if a fake driver's license is used multiple times, the number of counts in an indictment can rapidly pile up and drastically increase the defendant's exposure upon conviction.
Identity Theft charges may be brought by state, local, and federal prosecutors. Pennsylvania law specifically provides both the local District Attorney and the office of the Attorney General with concurrent jurisdiction to prosecute, meaning that the Attorney General shall have the authority to investigate and prosecute these cases where there is evidence that the violations involve more than one county or state. Further, in order to simplify the process of conducting a preliminary hearing in an Identity Theft case, the statute provides that hearsay may be used at a preliminary hearing. It states: "A report to a law enforcement agency by a person stating that the person's identifying information has been lost or stolen or that the person's identifying information has been used without the person's consent shall be prima facie evidence that the identifying information was possessed or used without the person's consent." Although this section allows for the use of police reports at preliminary hearings, it would likely be subject to hearsay and Confrontation Clause challenges at trial.
Identity Theft charges may be brought in a number of different locations. The jurisdictions in which a prosecutor could bring charges include:
- The place where a person possessed or used the identifying information of another without the other's consent to further any unlawful purpose.
- The residence of the person whose identifying information has been lost or stolen or has been used without the person's consent.
- The business or employment address of the person whose identifying information has been lost or stolen or has been used without the person's consent, if the identifying information at issue is associated with the person's business or employment.
This means that charges could be brought in a number of different jurisdictions.
Finally, the statute provides two key definitions as follows:
"Document." Any writing, including, but not limited to, birth certificate, Social Security card, driver's license, nondriver government-issued identification card, baptismal certificate, access device card, employee identification card, school identification card or other identifying information recorded by any other method, including, but not limited to, information stored on any computer, computer disc, computer printout, computer system, or part thereof, or by any other mechanical or electronic means.
"Identifying information." Any document, photographic, pictorial or computer image of another person, or any fact used to establish identity, including, but not limited to, a name, birth date, Social Security number, driver's license number, nondriver governmental identification number, telephone number, checking account number, savings account number, student identification number, employee or payroll number or electronic signature.
Defenses to Identity Theft Charges
Fortunately, there are a number of potential defenses to Identity Theft charges.
- Sufficiency of the Evidence. There are a number of elements that the prosecution must prove in order to obtain a criminal conviction in any case, and the prosecution must always be able to prove the defendant's guilt beyond a reasonable doubt.
In many cases, the prosecution may not have sufficient evidence that the defendant committed the crime charged. For example, when dealing with an Identity Theft case, the prosecution often brings charges where the defendant used a fake name to engage in some kind of transaction. If the fake information does not actually belong to someone else, then that would not be the crime of Identity Theft because the statute requires that a real person had their identifying information stolen and used. This means that using a fictional identity may not result in sufficient evidence of Identity Theft.
Likewise, the prosecution is required to introduce real evidence at trial and may not proceed based solely on hearsay. This can be difficult for state and local prosecutors because the victim of the crime may not live or work within the jurisdiction in which the defendant allegedly committed the crime.
Finally, even where Identity Theft has occurred, it is not always obvious who did it. For example, if a stolen credit card was used online, then the prosecution would be required to provide who used the credit card, and simply having the address of where the goods were shipped may not provide the answer. The statute also requires that the defendant use the identifying information for an unlawful purpose. This means that it may not be a crime simply to possess identifying information. Instead, it must be used for an unlawful purpose, such as to commit a theft or fraud.
- Credibility of the Witnesses. The credibility of the witnesses is always at issue in any criminal trial. If witnesses give inconsistent statements or say things which can be proven false, then the prosecution may not be able to prove the case beyond a reasonable doubt. For example, Identity Theft charges are relatively common as part of domestic disputes. If domestic partners shared the use of a credit card that was only in one person's name, then the complainant could allege that the defendant used the credit card without permission. In this type of case, it may be possible to prove that the complainant's testimony is not credible and that the defendant actually had permission to use the card. Read more about how to protect yourself from this type of situation here.
- Valuation of the Goods and Services Involved. The penalties for Identity Theft depend heavily on the value of the goods and services involved. When the value is under $2,000, the charge will only be graded as a misdemeanor of the first degree instead of as a felony. Further, the value of goods and services is not always clear - is it the cost of the goods to produce or the amount for which they are normally sold. Therefore, it may be possible to challenge the valuation of the theft in order to argue that the offense should be graded as a misdemeanor instead of as a felony.
- Pre-Trial Motions. There are a number of pre-trial motions which may be used to challenge the evidence in any given criminal case. The merits of bringing pre-trial motions like Motions to Suppress, Speedy Trial Motions, and Motions in Limine depends on the facts of the case. For example, if the police illegally interrogate the defendant without providing Miranda Warnings and obtain a confession, it may make sense to bring a Pre-Trial Motion to Suppress the confession.
Penalties for Identity Theft Convictions
Identity Theft is often a felony, but a conviction for Identity Theft does not require the sentencing judge to impose any kind of mandatory minimum. The gradation of an Identity Theft charge depends on the value of the property or services obtained by using the identifying information of the complainant. If the total value involved is less than $2,000, then it is a misdemeanor of the first degree. If the total value involved was $2,000 or more, then the offense is a felony of the third degree. Additionally, if the Identity Theft is part of a criminal conspiracy, then it becomes a felony of the third degree regardless of the value involved. Finally, if the offense is a third or subsequent offense, then it becomes a felony of the second degree.
In addition to the normal gradations as described above, there is an enhancement to the gradation when the victim is 60 years of age or older, younger than 18 years old, or a care-dependent person. If any of those factors apply, then the charge will be graded one grade higher than normal. This means that an Identity Theft involving a value of less than $2,000 committed against a 16 year old would lead to the Identity Theft being graded as a felony of the third degree instead of a misdemeanor of the first degree.
Although there is no mandatory minimum for Identity Theft, the maximum penalties can be severe. Felonies of the second degree are punishable by up to ten years in prison. Felonies of the third degree are punishable by up to seven years in prison. Misdemeanors of the first degree are punishable by up to five years in prison. Additionally, the recommended sentence provided by the sentencing guidelines will depend heavily on the value of the goods or service involved and the defendant's prior record. Perhaps most importantly, a conviction for Identity Theft can be extremely damaging to the defendant's ability to obtain employment in the future.
In addition to the ordinary penalties provided by Pennsylvania law, the Pennsylvania legislature has enacted a special statute dealing with Restitution for Identity Theft. The Restitution Statute provides that the defendant may be held responsible to make restitution for all reasonable expenses incurred by the victim or on the victim's behalf:
- to investigate theft of the victim's identity;
- to bring or defend civil or criminal actions related to theft of the victim's identity; or
- to take other efforts to correct the victim's credit record or negative credit reports related to theft of the victim's identity.
The restitution statute specifically provides that certain expenses may be ordered as restitution, including:
- fees for professional services by attorneys or accountants;
- fees and costs imposed by credit bureaus, associated with efforts to correct the victim's credit record, incurred in private investigations or associated with contesting unwarranted debt collections; and
- court costs and filing fees.
This statute means that the costs of an Identity Theft conviction can rapidly increase and become significant.
Call a Philadelphia Criminal Defense Lawyer Today
If you or a loved one are under investigation or facing criminal charges, our Philadelphia white collar criminal defense attorneys can help. We have successfully defended thousands of cases in the Philadelphia area and represented clients in both state and federal court. Call or text 267-225-2545 for a complimentary 15-minute criminal defense strategy session.