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  • #16
    42 U.S.C . § 408 (a)(7 )(B) provides, in pertinent part:

    In general Whoever -

    (7) . . . . . for the purpose of obtaining anything of value from any person, or for any other purpose (emphasis added)

    (B) with intent to deceive, falsely represents a number to be the social security account number assigned by the Commissioner of Social Security to him or to another person, when in fact such number is not the social security account number assigned by the Commissioner of Social Security to him or to such other person;

    42 U.S.C. § 408(a)(7 )(B).

    Elements of the crime

    The elements required to prove a violation of 42 U.S.C. § 408(a)(7)(B) are:

    (1) false representation of a Social Security account number;

    (2) with intent to deceive;

    (3) for any purpose.

    [See United States v. Means, 133 F.3d 444, 447 (6th Cir. 1998) (setting forth the elements for prosecution of a case under 42 U.S.C. § 408(a)(7)(B)). See also United States v. McCormick, 72 F.3d 1404, 1406 (9th Cir. 1995).]

    Alternative elements

    The majority of jurisdictions apply the Means standard as set forth above. However, a few jurisdictions break down the language of § 408 (a)(7 )(B) to include a fourth element:

    (1) for any purpose;

    (2) with intent to deceive;

    (3) represented a particular Social Security account number to be his;

    (4) which representation is false.

    [See United States v. O'Brien, et. al., 878 F.2d 1546 (1st Cir. 1989).]

    ====> When to charge?

    Subsection (B) is the most commonly charged subsection of § 408(a)(7) because of its broad application and straightforward elements of proof. It is typically charged whenever a subject has misrepresented a social security number to

    - open a bank account;
    - apply for a credit card;
    - secure credit for a cell phone;
    - rent or lease an apartment or car;
    - apply for employment;
    - or enroll in flight training.

    The charging standard, "for any purpose," is broad and self-explanatory, and any false representation of a social security number, with an intent to deceive, is actionable conduct that may be charged as a felony under §408(a)(7)(B). [See United States v. Silva-Chavez, 888 F.2d 1481 (5th Cir. 1989).]

    Intent to deceive and the "use" vs. "possession" distinction

    Direct evidence is not always necessary in order to prove that a defendant intended to use a social security card or number for deceptive purposes. Mere possession of a social security card or number that does not belong to a defendant is sometimes sufficient to support a finding that the defendant intended to deceive.

    [United States v. Charles, 949 F.Supp. 365 (D. VI 1996). In Charles, the government was unable to produce direct evidence that the defendant had actually applied for a driver's license using a false social security number, but concluded that the jury could infer that the defendant received the social security card through false representations when the government's evidence showed that:

    (1) the Police Department Licensing Section had printed defendant's license; and

    (2) generally, in order to obtain such a license, an applicant must give a social security number to the licensing agent.]

    However, mere possession of false identity documents, including a false SSN, might not always be enough to convict. Some courts have held that the term "represent" connotes a positive action, not merely passive possession, and have thus reasoned that Congress, by using the term "represent," meant to proscribe the "use," not merely the "possession," of a false social security number. [United States v. McKnight, 17 F.3d 1139, 1144 -45(8th Cir. 1994).]

    However, the concurring opinions of two McKnight panel members under score that this is not a hard and fast rule: "We write separately to make explicit that possession of an identification card bearing a false social security number can, in some instances, provide a sufficient predicate for a jury to properly infer that a defendant falsely represented a social security number in violation of 42 U .S.C. § 408(a )(7)(B ). ["Id. at 114 6; see also Unite d State s v. Teitloff, 55 F.3d 391, 394 (8th Cir. 1995) (court rejected defendant's contention that he did not technically "use" the social security number because the DMV computer system automatically provided that information when he supplied the other person's identification documents).]

    -- When a defendant acts willfully and knowingly

    A defendant may be found to have acted willfully, knowingly, and with intent to deceive, even if the defendant did not intend to deceive federal officials when he presented them with documents containing a false social security number. [U.S. v. Pryor, 32 F.3d 1192 (7th Cir. 1994) (defendant's driver's license had been suspended and he was found to be carrying false documents which he acknowledged that he planned to present if pulled over for a traffic violation).]

    -- The "moral turpitude" exception

    The 9th Circuit has held that an alien's use of a false SSN to further otherwise legal conduct is not a crime of "moral turpitude." [Beltran-Tirado v. Immigration and Naturalization Service, 213 F.3d 1179, 1184 (9th Cir. 2000).] The significance of this decision lies in the impact such a conviction would have on the illegal alien's eligibility for inclusion on the Immigration and Nationality Act registry. See 8 U.S.C . 1259 . The registry statute was originally enacted by Congress in 1929 as a means to regularize the status of long-time illegal aliens residing in the United States, and has been updated periodically since. Under current registry provisions, conviction for a crime of moral turpitude would preclude an alien from eligibility because he would not be considered "of good moral character."

    "Otherwise legal behavior"

    In Beltran-Tirado, defendant lived under an assumed identity, using the name and social security number of the victim to obtain employment, marry twice, obtain a driver's license, credit cards, and a HUD loan. Beltran's earnings attracted the interest of the IRS, resulting in her arrest and conviction under 42 U.S.C. § 408(a)(7)(B) and 18 U.S.C. § 1546(b)(3). The INS moved to deport her, but the Ninth Circuit intervened to interpret the legislative history of 42 U.S.C. § 408 and carve out an exception to a conviction for a crime of moral turpitude by allowing the use of a false SSN to further "otherwise legal behavior." The Beltran-Tirado case appears consistent with an earlier decision by the Ninth Circuit in which the court concluded that "the crime of knowingly and willfully making any false, fictitious or fraudulent statements or representations to an agency of the United States is not a crime of moral turpitude because a jury could convict if it found that the defendant had knowingly, but without evil intent, made a false but not fraudulent statement." [Hirsch v. INS, 308 F.2d 562, 567 (9th Cir. 1962).]

    - Sale of false or counterfeit Social Security cards is a crime of moral turpitude

    Another California federal court, citing Beltran-Tirado (n.8), held that the sale of false or counterfeit social security numbers is a crime that involves moral turpitude. [Souza v. Ashcroft, 2001 WL 823816 (N.D. Cal.)] The court distinguished between those who sell rather than use false or counterfeit social security cards ("persons convicted of the crime of selling false or counterfeit social security cards have, like persons convicted of the analogous crime of selling counterfeit green cards, committed a crime of moral turpitude") Id. at *3, and stated that Congress, in amending 42 U.S.C. § 408, specifically excluded from the exemption those who sell, rather than use, false or counterfeit social security cards. The reason for this distinction is apparent. Sale of false alien registry documents (green cards), as well as the crime of selling false or counterfeit social security cards, inherently involves a deliberate deception of the government and an impairment of its lawful functions.

    - Multiple false representations and the rule against multiplicity

    When an individual makes multiple false representations by misrepresenting a SSN on multiple credit card applications, bank accounts, or federal documents relating to employment (I-9, W-4), each use or representation constitutes a separate offense. Each of the separate offenses is supportable by a different set of predicate facts, and is actionable under § 408(a)(7)(B). In addition, each use or representation on a federal form is actionable as a false statement under 18 U.S.C. § 1001, and can be charged as a separate offense also supportable by a different set of predicate facts. While charging multiple counts might not be desirable, doing so when separate predicate facts exist would not run afoul of the rule against multiplicity that prohibits the charging of a single offense in several counts. [United States v. Castaneda, 9 F.3d 761, 765 (9th Cir. 1993) (holding that a defendant may properly be charged with committing the same offense more than once as long as each count depends on a different set of predicate facts); see also United States v. Hurt, 795 F.2 d 765, 7 74-75 (9th Cir. 1 986).]

    - Use of false Social Security on non-federal documents

    It is not necessary that the false use or representation of an SSN have a detrimental effect in some way on the government to be actionable. See United States v. Holland, 880 F.2d 1091 (9th Cir. 1989). Any use of a false social security number on non-federal documents is still actionable under § 408(a)(7)(B). For example, the subject in the case study used his falsely obtained SSN when completing multiple applications seeking employment as a pilot, and in applying for taxi permits with airport cab companies. Even though the airline and cab company employment applications are not federal documents, the subject can still be charged under 408(a)(7)(B). Further, it is not necessary to prove that the defendant used a false social security number for payment, gain, or pecuniary value. [United States v. Silva-Chavez, 888 F.2d 1481 (5th Cir. 198 9)]


    • #17
      In the weeks following September 11, a task force consisting of several federal agencies, including

      - OIG/SSA,

      - FBI,

      - FAA,

      - INS,

      - DOT,

      - U.S. Customs, and

      - Homeland Security,

      initiated investigations designed to conduct audits of the SSN of security-badge holders at airports throughout the United States. This investigation, referred to as either "Operation Safe Travel" or "Operation Tarmac," (the names are interchangeable), was first initiated by SSA/OIG and INS at the Salt Lake City airport prior to the Winter Olympics. An audit of SSN's at the airport revealed significant irregularities among holders of security badges with access to the tarmac and other sensitive areas of the airport. The investigation, labeled "Operation Tarmac," resulted in the indictment and arrest of 69 individuals employed by private companies operating at the airport and providing services such as security screening, food services, aircraft fueling, cargo handling, cleaning/housekeeping services (inside the airport, the on-ramps leading to planes, and on the airplanes), airplane service and maintenance, and maintenance and construction in secure areas of the airport. Of the 69 individuals indicted in the Operation Tarmac sweep, 61 individuals had Security Identification Display Area ("SIDA") badges that allowed them access to highly secure areas of the airport, including access to planes, runways, ramps leading to planes, and cargo areas. Three of those indicted were airport security screeners. The indictments charged violations of

      - 42 U.S.C. §§ 408(a)(7)(B) and (C) (SSN misuse and using counterfeit or altered Social Security cards),

      - 18 U.S.C. § 1001(a)(3) (false statements on government forms), and

      - 18 U.S.C. § 1546(a)(3) (false statements on applications to INS).

      Other violations uncovered by the investigation included the use of false and counterfeit alien registration cards and numbers, making false representations about citizenship status to obtain employment and security badges, and making false statements to authorities about criminal history. All of those indicted were in the country illegally.

      Since the initial sweep at the Salt Lake City airport, similar operations have been successfully undertaken at more than 20 airports in the United States, including

      - Phoenix,
      - Los Angeles,
      - Miami,
      - Boston,
      - San Diego,
      - Charlotte,
      - Las Vegas, and
      - San Francisco.

      These investigations have resulted in a significant number of indictments and arrests of individuals illegally living and operating under false identities in the United States, some of whom were fugitives from felony convictions. Each person indicted and arrested by agents involved in Operation Tarmac/Operation Safe Harbor possessed security badges with clearance to enter restricted and sensitive areas of each airport. Each person indicted was found to be using false identification documents, including false SSN's.

      Particularly disturbing is the fact that, in Miami and Los Angeles, agents arrested individuals working as pilots and possessing false identification documents and bogus SSN's. Further, agents arrested individuals during some sweeps who were employed as security screeners. In one particularly disturbing incident, an illegal used false identity documents to secure employment with an airline and to obtain a security badge allowing complete access to airport facilities. The subject failed to show up for work after obtaining the security badge, but the airline failed to cancel the badge. However, airport records show that the badge continued to be used to access the airport regularly. In each operation, the principal charge used to indict those using false identification documents was § 408(a)(7)(B).

      The arrest of individuals utilizing false identities by Operation Tarmac/Operation Safe Harbor investigators has underscored the seriousness of the false identity problem faced by law enforcement and Homeland Security officials since the terrorist events of 9/11. In every airport security badge holder arrest, use of a false SSN proved to be the foundation block that supported the identity theft and enhanced the ease with which the individual was able to secure obscurity from law enforcement. It also helps explain why securing and using SSN's was a critical element of the plans of the terrorists and their support cells in their preparation for the September 11 attacks. The indictments resulting from investigations implemented under Operation Safe Travel and Operation Tarmac also indicate the value and importance of using § 408(a)(7) as a tool for prosecuting such violations.


      • #18
        A controversial program designed to clear up millions of erroneous Social Security numbers has resulted in a wave of firings all over the country, as companies are told their workers have invalid numbers, sparking fear that some of them may be illegal immigrants. Sitting on $345 billion in uncredited money paid into the system, the government last year began sending letters to every company in America with at least 1 employee whose name did not match his or her Social Security number. The plan was intended to clear up misspellings, name changes, and other errors that might cause legitimate employees to drop out of the Social Security database. But the impact has fallen far more heavily on illegal immigrants, many of whom apply for jobs with false numbers. KAYEM FOODS, a meat processing plant in Chelsea, received letters last year that identified 51 workers whose Social Security numbers didn't match their names in the federal database. Although most have been corrected, said a Kayem spokesman, several of the workers quit. In January, five were fired after they admitted being illegal immigrants and giving the company falsified Social Security cards, a company spokesman said.

        In the Chicago area, more than 100 people, most of them Latin American, were fired from several TARGET discount stores after the company was sent the names of employees with mismatched numbers. Similar firings took place in San Jose, Los Angeles, and in southern Florida. Based on information from dozens of immigrant rights groups, the National Immigration Law Center, a policy and advocacy organization, estimates thousands of workers across the country were fired last year after their names appeared on the government's "no-match" letters. "No one objects to the purpose of the program," said Josh Bernstein, the center's senior policy analyst. "The problem is that employers don't understand what it's about. They assume it's for immigration enforcement." The government has been sending no-match letters to employers since 1994 in an effort to ensure that workers are properly credited for their Social Security contributions so that when they retire or if they become disabled they are eligible for Social Security grants they paid into the system. But for most of that time, the letter campaign has targeted only companies with a relatively large number of mismatched Social Security numbers. The threshhold was 10 employees, and only if they represented 10% or more of the total work force. In 2001, Social Security sent 110,000 such letters to companies.

        Last year, however, in an attempt to decrease the growing number of erroneous listings, the agency decided to send letters to every company that had even 1 employee whose number didn't match. In 2002, federal officials sent out 950,000 letters, many of them to companies that previously had never received such a letter. Some employers assumed it was part of a post-Sept. 11, 2001, security crackdown. Others viewed it as a way of enforcing immigration law. "The majority of employers have been both alarmed and confused about what they're supposed to do," said Marielena Hincapie, a staff attorney with National Immigration Law Center. "The reality is employers are caught in a Catch-22. If they don't inquire, they think they may be in violation of immigration law, if they do inquire they are violating labor laws." Under federal law, employers may not ask their workers about their immigration status, but they are not supposed to knowingly employ illegal immigrants and can be fined if caught. In its letter, the Social Security Administration asks employers to respond within 60 days with the corrected information but does not order them to comply. It does state: "This letter does not imply that you or your employee intentionally provided incorrect information about the employee's name or SSN. It is not a basis, in and of itself, for you to take any adverse action against the employee."

        Hincapie says some employers used the letters as an excuse to get rid of undesirable employees, especially those who have tried to organize unions. "There are some who received the letter and didn't do anything with them until there is an organizing effort. Then they say, 'Oh, Jose, can you come into my office,'" Hincapie said. "The motivation is to make sure we give employees credit for putting money into the [Social Security] system," said Jean Venable, a spokeswoman for the Social Security Administration. "The letters do not imply that employers or employees didn't provide correct information. It's not a basis for taking any negative action. If employers do, they could be subject to anti-discrimination or labor law sanctions." Scott Farmelant, a spokesman for Kayem Foods, said the company did not fire employees simply because of the no-match letter. He said the workers who were fired voluntarily admitted they were undocumented and keeping them would be a violation of federal immigration law. "They were terminated because they admitted saying they gave false Social Security numbers," Farmelant said. "We're prohibited by law from hiring anyone who is illegal." In Boston, immigration advocates say they've counted more than 300 workers who've been notified that their names and Social Security numbers don't match in a federal computer system. The errors run the gamut of mistyped numbers, names that have changed, and people with phony numbers.

        Those firings have spurred organizers in the Boston area to start a "don't tell" campaign, notifying workers to admit nothing when letters reveal their Social Security identities are wrong. "We want our community to know what their rights are," said Fernando Lemus, organizer for Local 1445 of the United Food and Commercial Workers. "Getting a no-match letter has nothing to do with employers enforcing immigration laws." Last Saturday, more than 100 people packed Most Holy Redeemer Church in East Boston for an informational forum, put together by a coalition of immigrant rights groups. Many arrived with no-match letters in hand, saying they thought they were the only ones who had received them. "It's an even bigger issue than we had thought," Lemus said. For all the trouble they have caused in the workplace, the no-match letters apparently did not net the Social Security Administration much new information. The agency decided to cut back on the program this year because it didn't result in a large number of corrected Social Security accounts, said Venable. "We used a lot of agency resources to handle this, and based on a preliminary analysis, a low number of corrected W-2 [forms] were collected," she said. This year the agency plans to send letters to companies that have 10 workers or more who don't match and who represent at least 0.5% of the work force. Venable estimates 135,000 letters will go out in 2003, a fraction of the number sent out last year.

        Cindy Rodriguez can be reached at

        This story ran on page B1 of the Boston Globe on 3/18/2003.


        • #19


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