Identity Fraud - Attorney Steven J. Topazio
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Identity Fraud

Identity fraud is a crime in which someone wrongfully obtains and uses another person’s personal data for economic gain or acts with an intent to defraud. In a recent case, a defendant, pleaded guilty to identity fraud pursuant to G. L. c. 266, § 37E (b), in connection with providing a false name to a police officer during a traffic stop. She appealed from the denial of a motion to withdraw the guilty plea, claiming that there were insufficient facts to establish that she attempted to receive, or received, “anything of value” within the meaning of § 37E (b). The court concluded that the phrase “anything of value.” as it appears in the statute, did not include avoiding criminal prosecution, and reversed the decision.

In this case, although the judge accepted the defendant’s plea of guilty to identity fraud on the facts of giving a false name to the police, the defendant thereafter argued that the facts the Commonwealth presented for the change of plea did not establish each element of that offense.

General Laws c. 266, § 37E, is the identity fraud statute. Subsection (b) of § 37E provides:

“Whoever, with intent to defraud, poses as another person without the express authorization of that person and uses such person’s personal identifying information to obtain or to attempt to obtain money, credit, goods, services, anything of value, any identification card or other evidence of such person’s identity, or to harass another shall be guilty of identity fraud . . . .”

The elements of identity fraud, thus, are “that a defendant (1) posed as another person; (2) did so without that person’s express authorization; (3) used the other person’s identifying information to obtain, or attempt to obtain, something of value; and (4) did so with the intent to defraud.” During the appeal of this case, the defendant argued that the Commonwealth failed to present any facts tending to establish that she attempted to obtain something of value pursuant to § 37E (b) because the evasion (or the attempted evasion) of criminal prosecution is not something of value within the meaning of the statute. In contrast, the Commonwealth argued that “value” as it appears in § 37E (b) includes intangible things, including avoiding criminal charges. Despite this argument, the court agreed with the defendant. Giving a false name to a police officer to evade possible criminal prosecution is not identity fraud.

COMMONWEALTH vs. EMILIA ESCOBAR, 479 Mass. 225, (2018)