Identity Theft Crimes

First, I didn't even notice the milestone on August 21.  It has been a year since this blog began.  It has been a learning experience to see how this works.  At first, you hope one person comes to the site, then two, then ten and you check every five minutes.  Now, I just check every ten minutes.  Thank you to the tens of thousands of visitors in the first year.  Please keep visiting, commenting, and emailing.

Now, to the meat of the post.  What is identity theft?  Is it forging a check in someone else's name?  Is it stealing someone's credit card and using it?  Is it just pretending to be someone else?

Identity theft crimes fall into the category of white collar crimes.  These are crimes that are financially motivated and generally non-violent.  We usually think of an employee embezzling funds from a company when we think of white collar crimes.  Today most of these crimes are identity theft.  It's on the rise and more and more people will be victims in their lifetime.  Just like me.  It leads to lost money, lost time spent dealing with the problem, and possibly ruining your credit.  In 2008, an estimated 11.7 million people were victims according to the Department of Justice.

Article 190 of the New York State Penal Law contains many of the fraud crimes related to identity theft.  The crimes range from issuing a bad check (writing a check the issuer knows will bounce) to usury (outrageous loan practices) to possessing a skimmer (a device used to obtain another's credit card information without their knowledge or consent).  It also defines identity theft.

Identity theft is when a person "knowingly and with intent to defraud assumes the identity of another person by presenting himself or herself as that other person, or by acting as that other person or by using personal identifying information of that other person, and thereby: (1) obtains goods, money, property or services or uses credit in the names of such other persons or causes financial loss to such person or another..."  P.L. Section 190.78.  The punishment ranges from a misdemeanor through a "D" Felony, depending on how much money was involved and whether the person has a prior conviction for a similar crime.

Seems simple.  Someone pretends to be me and uses my info to gain a benefit for themselves.  But how do we prove it?  Imagine this recent scenario.  A mother is on her deathbed.  She has three children.  One of the children lived with the mother in her years of decline and was allowed to use her mother's credit card in the past to help her obtain groceries and other products.  But now the mother is incapacitated with a disease that affects her physicaly and mentally.  The day before the mother dies, the adult child goes to a store and charges $20,000 worth of credit.  Now this has to be paid from her estate and understandably it seems wrong.  But how can we ever prove she did not have permission to use the card from the mother when the mother had capacity?

What about what happened to me?  Some person in another state gets my debit card info and uses it at a hotel.  We can get the surveillance videos from the hotel and the signature card.  Then we find the person and interview.  Get a search warrant for the home and computer.  If the evidence is there, we can arrest and prosecute. 

But what if that person had used my information at Amazon.com?  We can find the IP address that made the purchase, but we can never say with certainty who made the actual purchase.  We can never say who the person was sitting at the computer that day using the card.  Anyone in the house could have used the computer.

The prosecution of these cases is difficult.  We can only make arrests on cases in which there is probable cause to believe the defendant committed the offense.  To do that we need evidence.  As we know from every major scandal, stolen money is an emotionally driven crime.  People want someone held accountable.  They don't want to hear that we don't have enough evidence.  Even if we all agree who did it, that doesn't mean we can charge him without admissible evidence.  Like any case, we must balance the victim's wishes with the evidence.  Embezzlement crimes are simpler.  There is always a paper trail of missing or stolen money that will lead to the person who stole it.     

So to the person in Michigan who spent two days being me, the investigation is underway.  The bad thing about the internet for prosecutors is that it is difficult to know who was at the keyboard at a given time.  The good thing?  Someone always leave a trail.  Did you?

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A Stolen Identity

There are two telephone calls you do not want to receive on vacation - 1) that someone was sick or hurt, or 2) that someone stole your identity.

Last week, some NASCAR loving soul pretended to be Prosecutor's Discretion for a few days.  This is not a slight against NASCAR, but a truth.  See, this fan was so enamored with the the sport that he used my debit card to spend some money at a NASCAR track in Michigan.  He (I'm not sure, but I'm assuming the culprit was male) then got so tired after pretending to be me all day (most days I'm exhausted after it), that he booked a room under my name.

Poor fellow must have been pooped after such a hard day.

The only way I learned of it was a timely phone call from the watchful eyes of my bank.  The major banks all have fraud monitoring departments.  They watch for unusual activity and once they saw numerous transactions in Michigan (I reside in New York) they called me to check in.

I was on vacation anyway so I figured it was them checking in on my use while on vacation.  Turns out, the use was thousands of miles away from where I was.  If not for the phone call, I don't know when I would have discovered the fraud.

The kicker?  My debit card was tucked safely in my wallet, but somehow they were still using it.  I'm tempted to open a file and start sending subpoenas out all over the country.  But I know conducting my own investigation where I've been the victim is improper.  Plus, the problem with identity theft like this is there is very little chance the offenders will be caught.  It is so easy to mask a person's identity on the internet and also easy to deny culpability.

Most identity thefts we prosecute are for people who steal licenses and credit cards and use them at stores.  State DA offices usually do not have the resources or knowledge to track interstate investigations.

Oh, and this is the second time this has happened to me.  The first was years ago when someone went to a ski resort using my card.  I guess people just like letting me pay for vacations.  But this doesn't compare to my brother who once received a tax bill from Kentucky for tens of thousands of dollars.  The problem was that he never lived in Kentucky or worked there.  It turned out an illegal immigrant had been using his name and social security number to work for years, without paying taxes.

Identity theft is rampant and only increases with technological advances.  On Friday, I'll discuss certain identity theft related crimes and how we prosecute them.

For now, despite all the bad press the big banks get, I appreciate that they are looking out for me.

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How Did You Spend Summer Vacation?

Remember those personal essays you had to write in elementary school?  The time-fillers you dreaded on the first day back from vacation?  Well, here's my version of it from this summer:

Growing up, we took a vacation seemingly every summer.  I remember my mother waking me up in the early morning hours, telling me to get ready because we were leaving in fifteen minutes.  The suitcases were packed and the station wagon or minivan had been loaded since the day before.  The only thing missing at five in the morning were the travelers.

And we marched in, one by one.  Seven of us total made the annual pilgrimage to various battlefields, aunt's houses, Freedom Trails, and beaches.  Sometimes we brought along a cousin, bringing the total to eight occupants in a seven person van filled with luggage.  I don't know how my parents survived those trips.

Reality tells us that we all must grow up, and so the inevitable happened with my family.  The two oldest siblings acquired jobs and started college, and couldn't just leave for two weeks in the summer.  Still my parents packed up the three youngest and headed South, East, or West.  But the cracks in the foundation were visible by then, signaling the ritual would soon crumble.

Like those beautiful sunsets over the ocean, it must come to an end.  My siblings began to marry off and create their own families, their own traditions.  I moved away for college, came home for law school, and then moved away again for a job.  There was no special decree declaring the end of childhood.  No one ever told me it was time to be an adult.  The benefit of life's rearview mirror allow me to say my childhood ended when those family vacations stopped.  When everyone became too busy to spend a week or more together away from the lives they were creating.

But like the sunset, the tradition was hiding, waiting to be discovered when the night faded.  And so in 2007, with me trying to find my way in life, we tried to reignite the flames of our youth.  We trekked across the country to a beach house, where we filled that unsuspecting house to capacity with not only the amount of people but the large personalities that had developed.  That successful vacation led us to try again this year.

We had increased our number to 22 - three more significant others had joined the family and four more children.  An enormous house welcomed us, again not prepared for the noise my family can create.  Jokes, laughter, chairs scraping against the floor, the blender mixing fruity drinks, the sound of seven children under ten years old running through the house mixed to rival the sound of an airplane taking off.

At times this past week, I took leave of my family and spent some time alone on a porch with my book.   It's odd that you need to pull away from people to truly appreciate them.  Instead of focusing on the book, I found myself reflecting on my family.  How far we had all come since those first family vacations I can remember.  My parents had five children, and each has a completely different personality spun from the family web my parents created.

My sisters are organizers.  They make up the oldest and youngest members of the flock.  The oldest is the unquestioned leader, no matter what we tell her.  The youngest is the reminder.  She ensures that no one forgets a date or a duty.  The oldest boy takes care-free to another level.  He never takes himself too seriously and, therefore reminds us that we shouldn't either.  The middle boy provides the comedy.  No matter how much I try to emulate it, my jokes just aren't as funny to the instant wit he provides.  I guess I'm the moderator of the group.  Each person operates independently, but when the five of us are together trying to recapture a little of the childhood we lost, it is obvious that we have thrived because of each other.

The waves of the ocean crashed against the shore, wiping a layer of sand each time.  It's the same as the years to us.  They pass, stripping away more and more of the childhood we remember.  It happens gradually, in tiny unnoticeable chunks, until you look down and attempt to fathom what happened to the last twenty years.  For one week this summer, I recreated what it was like to grow up in my family.  Happy or sad, good or bad, we were together.  The children and significant others only amplify that intense feeling of intimacy.  The organism that is my family has absorbed each new person and grown into a being even greater than the seven of us originally were.

The best news of all?  We don't have to wait five more years, even though some of us probably want to.  

And that is how I spent my summer vacation.    

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Television on Vacation?

As I compose this quick post, my father and two brothers sit on couches around me, watching television and drinking their morning coffee.  Children run through the giant house we rented on the beach.  The waves crash against the shore just outside the window behind the male members of my family. 

And I repeat, they are watching tv, increasing the volume with the children's noise.  With ocean waves crashing behind them.  They could be drinking their morning coffee watching that.  To be fair, we spend the nights on the porch, sharing stories and jokes, with those ocean waves providing the score to our family musical.

But still, this is vacation.  And where we came from, ocean waves are hundreds of miles away.  Anyone else think this particular activity should be banned on vacation? 

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Tips for Productivity

Still at the beach.  Only two jellyfish stings so far to the family.  But, like usual, I'm up early to get some things done before the day officially starts.  Morning time is my most productive time. 
I stumbled on this article that agreed and provides some insight on how to be more productive.  Check it out here. 

Remarkably, check out this previous post about the life of an ADA and see how I match up. 

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An Open Letter During Primary Season

Dear faithful readers and new friends who have stumbled upon the site:

     I received an email this week from the American Bar Association.  It asks for nominations to be included in their annual "Blawg 100 Amici," a collection of the 100 best blogs as voted on by readers.  

     Here at prosecutor's discretion, we are an easy sort, not requiring too much of you, the reader.  But you see, this is a presidential election year.  The year when citizens must exercise their right to vote and help guide the course of this country.  

     In the election spirit, I hope you'll consider nominating this blog.  Check out the ABA's site and nomination form here.  They have a few rules and discourage entries from:

• Blawggers who nominate their own blawgs or nominate blawgs to which they have previously contributed posts.
• Wives and husbands who nominate their spouses' blawgs. 
• Employees of law firms who nominate blawgs written by their co-workers.
• Public relations professionals in the employ of lawyers or law firms who nominate their clients' blawgs.
• Pairs of blawggers who have clearly entered into a gentlemen's agreement to nominate each other.

     There will be plenty of time for those folks to vote after the nomination process.  If you've ever learned something, enjoyed a story, commented, emailed me, laughed at the blog, found it accidentally when searching for appropriate court attire, or wanted to yell at me, get on over there and vote so we can share the blog with others.  Post a link on your facebook, hit it up on twitter.  

     I'll be nominating some of my favorite blogs.  As for me, I'm heading on vacation for a week.  The day-to-day crime fighter suit needed to be dry cleaned and my family desperately needed some sun.  And with telling you that, I just violated my own rule!  There will be some posts next week, probably pictures to make those at work jealous.  Thanks for reading.

Sincerely,

P.D.

P.S.  Did you check the site out yet?  If not, it's here.

     

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