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Identity theft doesn’t require proof defendant knew the identifying information belonged to an actual person

State v. Fernando Moreno-Acosta, 2014 WI App 122; case activity

While § 943.201(2) requires the state to prove the defendant used personal identifying information belonging to an actual person, it need not prove that the defendant knew the information belonged to another “real, actual person.”

Moreno-Acosta was accused of identity theft for using Kimberly Herriage’s social security number to obtain employment. At trial Herriage identified her social security number, testified that she did not know Moreno-Acosta, and said she hadn’t given him permission to use her social security number. (¶2). Moreno-Acosta asked that the jury be instructed that, in order to prove the offense, the state must prove that he “knew the personal identifying information belonged to Kimberly Herriage OR … that [he] knew that the personal identifying information belonged to a real, actual person. See 18 U.S.C. § 1028A.” (¶4).

The trial court properly rejected this proposed instruction:

¶5    The statute at issue here is Wis. Stat. § 943.201(2), which provides as follows:

(2) Whoever, for any of the following purposes, intentionally uses, attempts to use, or possesses with intent to use any personal identifying information or personal identification document of an individual, including a deceased individual, without the authorization or consent of the individual and by representing that he or she is the individual, that he or she is acting with the authorization or consent of the individual, or that the information or document belongs to him or her is guilty of a Class H felony:

(a) To obtain credit, money, goods, services, employment, or any other thing of value or benefit. …


¶10    The only issue here is what part or parts of the statute are modified by the requirement that the defendant act “intentionally.” While Moreno-Acosta zeroes in on the phrase “of an individual” as a purported object of “intentionally,” we look at the structure of the statute in which the operative language appears—as part of the statute as a whole. … In the first line of the statute, the legislature’s use of the phrase “for any of the following purposes” focuses the entire statute on the mental purpose to accomplish the enumerated objectives under Wis. Stat. § 943.201(2)(a)-(c), i.e., to obtain something of value or benefit, etc. The conduct criminalized under § 943.201(2), in this case, is the purposeful use of personal identifying information to obtain employment. … The conduct is only criminalized under this statute if the defendant did in fact use the personal identifying information of an individual, so the State must prove that fact, but the intentional use goes to the purpose to obtain one or more of the enumerated objectives, such as employment.


¶12    The standard jury instruction for identity theft, used here, provides that the intent requirement is one of purpose rather than knowledge. The jury was instructed: “‘Intentionally’ requires that the defendant had the mental purpose to obtain money, employment or anything else of value or benefit by using personal identifying information of Kimberly Herriage without Kimberly Herriage’s consent or authorization.” See Wis JI—Criminal 1458 n.9 (“[T]he ‘mental purpose’ alternative for intent is most likely to apply to this offense.”). Consistent with the statutory language, the jury instruction makes clear that “intentionally” here goes to the mental purpose to use the personal identifying information to obtain employment, not to the knowledge that the personal identifying information belongs to another person. The requirement that the actor have knowledge of those facts necessary to make the conduct criminal is satisfied by the standard instruction, which requires proof that the defendant knew the victim did not consent. See id. at n.7.

The court rejects Moreno-Acosta’s reliance on 18 U.S.C. § 1028A(a)(1), the federal identify theft statute, which provides for an aggravated penalty if, during certain felony violations, the defendant knowingly uses the personal identifying information of another person.

¶13    …. The federal statute .., by using the word “knowingly,” requires that the actor know all facts following that adverb, including that the information belongs to an actual person. Significantly, the statute criminalizes the knowing use of that information without any reference to any prohibited purposes. The Wisconsin statute thus has different wording and an entirely different structure, focusing on the actor’s intent to purposefully use the personal identifying information to obtain employment; “intentionally” modifies “uses,” the core action in the statute, and the purpose, “to obtain employment,” not that the personal identifying information belonged to a person. If the legislature had wanted the statute to mean what Moreno-Acosta says it means, the legislature could have said that the actor intentionally uses personal identifying information known to belong to an actual person, or language to that effect. It did not.

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