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SJC Clarifies Identity Fraud Statute and Limitations of its Application

police-car-1515955-300x225In recent decision – Commonwealth v. Escobar – that Supreme Judicial Court reversed the denial of the defendant’s motion to withdraw her plea of guilty of identity fraud pursuant to G.L. c.266, §37E(b), because in the Court’s view, the defendant did not receive “‘anything of value’” when she lied to a police officer in order to evade criminal prosecution.

The background was as follows. “[A] State police trooper stopped the defendant for driving an automobile with an excessively loud exhaust.” The defendant gave the trooper a false name and a citation was issued in that name. A year later, “an investigation revealed that the defendant had been untruthful at the time of the stop. A complaint was issued charging the defendant with” identity fraud. “[P]ursuant to a plea agreement, the defendant admitted to sufficient facts.” Subsequently, “the defendant filed a motion to withdraw her plea …, alleging that there was an insufficient factual basis for the charge.” Under G.L. c.266, §37E, “[t]he elements of identity fraud … 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.’ Commonwealthv. Giavazzi, 60 Mass. App. Ct. 374, 376 (2004) (footnote omitted). [In her motion,] [t]he defendant argue[d] 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.” The judge denied the motion.

In its decision, the SJC agreed with the defendant’s position. The Court noted that c.266, §37E, “does not define ‘value,’ and the ordinary meaning of the term can encompass both tangible and intangible things.” The Court turned therefore to “[t]he canon of statutory interpretation known as ejusdem generis” to determine the meaning of the statute’s proscription against “‘us[ing] [another’s] personal identifying information to obtain or to attempt to obtain money, credit, goods, services, [or] anything of value[.]’” The Court explained that “[e]jusdem generis requires that the general phrase ‘anything of value’ in the statute be interpreted to mean only those things that share the characteristics of the terms that appear before it, here, ‘money, credit, goods, [or] services.’ As the terms ‘money,’ ‘credit,’ ‘goods,’ and ‘services’ all refer to that which has a market or monetary value, the phrase ‘anything of value’ should be limited similarly to that which can be exchanged for a financial payment.” The Court found support for that conclusion (1) in related subsections of c.266, all of which “refer to financial harm to victims”; (2) in the statutory provisions preceding §37E (§§37A, 37B, 37C, and 37D), all of which “criminalize conduct pertaining to credit cards”; (3) in the legislative history of §37E(b), which includes statements about the financial problems endured by victims of identity fraud; and (4) in the existence of “two statutes that directly prohibit providing a false name to the police” [G.L. c.90, §25, and G.L. c.268, §34A]. “Significantly,” stated the Court, the latter statute “was enacted at the same time, and in the same bill, as §37E(b)…. If the Legislature had intended for §37E(b) to encompass providing a false name to a police officer, it need not have enacted G.L. c.268, §34A.”

A criminal conviction may result in a variety of collateral consequences, including an inability to obtain employment, housing, and/or education.  As such, it is of the utmost importance that anyone facing criminal charges be represented by an attorney who is well versed in the law and ready, willing, and able to pursue any and all defenses. Attorney Daniel Cappetta is such an attorney – he tirelessly advocates for the best possible results for all of his clients.  Call him today for a free consultation and put his experience to work for you.