Privacy and Security Alert: Supreme Court Upholds Requirement that the Government Prove Knowledge of Identity Theft


On May 4, 2009, the Supreme Court held that the federal law prohibiting “aggravated identity theft”1 requires the Government to prove beyond a reasonable doubt that the defendant knew the identification at issue belonged to another person. Flores-Figueroa v. United States, 556 U.S. ___ (2009). The 9-0 decision resolved a split between the First, Ninth, and D.C. Circuits, which held that the mens rea requirement “knowingly” applied to the defendant’s knowledge that the identification at issue belonged to another person, and the Fourth, Eighth, and Eleventh Circuits, which reached the opposite conclusion. As a result, federal prosecutors will no longer be able to threaten illegal immigrants with the two-year mandatory minimum sentence that accompanies a guilty verdict of “aggravated identify theft.”2

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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