Eli’s (Not) Coming

Can a criminal defendant engage in the crime of identity fraud by impersonating a non-existent person?

No, according to an April 1st decision (presumably no joke) of the New Hampshire Supreme Court.

Prior to trial, the defendant moved to dismiss all charges, arguing that the State had failed to “provide proof of the validity of the credit card numbers” and proof that Eli Watts was a “bona fide person.” The State objected, arguing that it was not required to prove that Eli Watts was an “identifiable person”; rather, the State argued, it was required to prove only that the defendant “was posing as someone other than himself in order to obtain the goods.” At the hearing on the motion to dismiss, the State conceded that Eli Watts was “a person that the Defendant fabricated . . . . a fictitious person.”

…We turn then to the limited question before us: To obtain a conviction for identity fraud under RSA 638:26, I(a), is the State required to prove that the identity assumed by the defendant belonged to an actual, rather than a fictitious, person? We conclude that the State is required to do so.

As to the State’s contentions

Not unlike its argument in the trial court, the State’s argument on appeal is, at best, fluid. In its brief, the State argues that, because the definition of “person” found in RSA 625:11, II contains the word “include,” it should be construed expansively to include fictitious or synthetic identities. See Hoofnagle, Identity Theft: Making the Known Unknowns Known, 21 Harv. J.L. & Tech. 97, 98 n.6 (2007) (“Although there is no authoritative definition of synthetic identity theft, cases typically involve the use of an individual’s real Social Security Number and date of birth with a false name and address.”). At oral argument, however, the State contended that because the information on the magnetic strip of the credit card used by the defendant belonged to a real person, this case was not about synthetic fraud. This argument was not made  in the trial court; nor is it a subsidiary question of the issue identified in the State’s notice of appeal. Accordingly, we will not address it.

Reminds me of a character from a favorite movie.(Mike Frisch)