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BENCH BLOG: Appeals court clarifies identity theft confusion

By: Jean DiMotto//December 22, 2014//

BENCH BLOG: Appeals court clarifies identity theft confusion

By: Jean DiMotto//December 22, 2014//

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Jean DiMotto is a retired Milwaukee County Circuit Court judge. She served for 16 years, and was on the criminal bench for 12 of those years.
Judge Jean DiMotto retired in 2013 after 16 years on the Milwaukee County Circuit bench and now serves as a reserve judge. She also serves of counsel with Nistler & Condon SC. She can be reached at [email protected].

During a season when theft in all forms increases, the Court of Appeals delved into the nature of the intentionality underlying identity theft and thereby clarified the elements of the crime.

The case of State v. Moreno-Acosta arose in Walworth County. The personal identifying information stolen was a social security number used by an undocumented immigrant to secure employment at a McDonald’s in Delavan.

This was proven with two state witnesses. One was the owner of the social security number who identified the number as hers and testified that she did not give permission to use it. The second was the manager of the McDonald’s who had received the forged social security card from the defendant and authenticated a photocopy of the card for the evidential record.

The jury instruction issue

The real issue at trial revolved around the jury instruction for identity theft, WIS JI-CRIMINAL 1458. As written by the Wisconsin Judicial Conference’s Criminal Jury Instruction Committee, 1458 sets forth four elements of the crime.

Using this instruction, the jury was told that the state had to prove that the defendant: (1) used the personal identifying information of another; (2) used it intentionally to obtain money, employment or anything else of value or benefit; (3) acted without the consent or authorization of the owner of the information and knew there was no consent or authorization; (4) intentionally represented that the information belonged to him.

“Intentionally” was then defined as requiring that the defendant had “the mental purpose” to obtain employment or other benefit by using the woman’s personal identifying information without her consent.

The defendant maintained that the instruction should require the state to prove that the defendant knew that the social security number belonged to “a real, actual person.” He argued that an extra sentence should be added to the third element.

The proposed sentence: “In order to establish this element, the state must prove that the defendant knew the personal identifying information belonged to [the woman] or … that he knew the personal identifying information belonged to a real, actual person.”

The sentence was rejected by Walworth County Circuit Judge John Race not for its ungainliness but because “I don’t believe that 1458 needs any further supplementation.”

Appellate arguments

On appeal from his conviction, the defendant relied on an explanatory footnote to 1458 and the statutory definition of “intentionally.” He also relied on the case of Flores-Figueroa v. United States. In that 2009 case the U.S. Supreme Court interpreted an aggravated identity theft statute as requiring that the defendant knew that the identifying information belonged to an actual person.

The state took issue with the defense characterization of the words that the adverb “intentionally” modified in the statutory definition. As well, it relied on the 2001 Court of Appeals case, State v. Ramirez, where the court interpreted the crime of identity theft to have only four elements. None of those elements requires the defendant to know that the personal information belonged to an actual person.

Court of Appeals analysis

In a crisply written, unanimous decision, District II Presiding Judge Lisa Neubauer focused on the interpretation of sec. 943.201, the identity theft statute. The court agreed with the state that in the Ramirez case, it had determined that identity theft comprised only four elements. WIS JI-CRIMINAL 1458 accurately reflects this.

Accordingly, the only issue was what part or parts of the statute are modified by the requirement that the defendant acted “intentionally.”

Looking at the statute as a whole, the court decided that the behavior criminalized is the purposeful use of personal identifying information to obtain one of the enumerated objectives; here, employment. The intentionality relates to this purposeful conduct.

The court found that the statute defining “intentionally,” sec. 939.23(3), “reinforces this focus on the actor’s purpose.” It also noted that as between “mental purpose” or “knowledge,” the jury instruction committee concluded that identity theft is a crime of purpose, adding that the “committee’s conclusions may be given weight.”

The court distinguished the Flores-Figueroa case by carefully examining the wording of the federal statute as compared to Wisconsin’s. The federal statute uses the word “knowingly,” not “intentionally.” The court referenced the dictionary definitions of these two words to demonstrate that they have different meanings.

In addition, the federal statute does not reference any prohibited purpose while Wisconsin’s statute focuses on mental purpose of the information’s use.
Accordingly, the court decided that the word “intentionally” in Wisconsin’s statute modifies the uses of personal identifying information, not knowledge that it belonged to a person.

Finally, the court observed that the legislative history of sec. 939.201, which centers on victims and the societal cost of identity theft, supported its conclusion. “The individual whose personal identifying information was used for a prohibited purpose was victimized whether the defendant knew of [the person’s] actual existence or not.”

Consequently, the court affirmed Race’s decision and the defendant’s conviction.


This case provides an excellent example of thorough statutory analysis with evaluation of the actual words and structure of statutes, as well as referring to sources such as the jury instruction committee, a dictionary and legislative history.

This decision has import because it distinguished a federal case that has caused confusion about the elements of identity theft for the Wisconsin criminal bar since 2009.

Moreover, the court’s analysis of the word “intentionally” vis-à-vis the wording of the identity theft statute gives guidance to judges and attorneys about how to properly interpret other statutes relating to crimes of intention.

For both reasons, the opinion is aptly recommended for publication. The fact that Neubauer wrote it in an intelligent, concise and logically structured way is the icing on the cake.


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