ID theft includes using a borrowed passport

There’s a federal crime, called “aggravated identity theft,” that carries a mandatory two-year prison term for anyone who commits it in the course of another felony. From the title, you might think it doesn’t apply to someone who used a passport that was borrowed from someone else.

But a federal appeals court said Wednesday the law is meant to punish misuse of identity documents, regardless of how they’re obtained.

In a 3-0 ruling, the Ninth U.S. Circuit Court of Appeals in San Francisco upheld the identity-theft and drug convictions of a man who tried to enter California from Mexico with a passport he had obtained from his twin brother, a U.S. citizen.

Agents arrested Miguel Osuna-Alvarez at the Otay Mesa border crossing in October 2012 after an alert by a drug-sniffing dog led them to packages of methamphetamine and cocaine in his car’s air conditioner. He identified himself as Hector Osuna and, when a fingerprint check showed otherwise, told agents his twin brother had let him use his passport. A judge accepted the testimony but nevertheless convicted Osuna, who was sentenced to two years for identity theft and another 34 months for trying to import illegal drugs.

In upholding the identity-theft conviction, the appeals court said the crime is defined by law as knowingly using another person’s identification “without lawful authority.”

That includes using a document to falsely identify oneself as a U.S. citizen, “regardless of whether the means of identification was stolen or obtained with the knowledge and consent of its owner,” the court said. It cited similar interpretations of the law by eight other federal appeals courts.

Osuna’s lawyer, Richard Rome, said he nevertheless intends to ask the full appeals court for a new hearing in hopes of a ruling that requires proof of actual identity theft.


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Ronald K. Noble is the founder of RKN Global and currently serves as one of its principal consultants.