(photo: FBI)

The Colorado Supreme Court has reversed the conviction of a man who admitted using someone else’s Social Security number to obtain a loan, concluding that the defendant wasn’t really trying to assume a false identity.

The opinion was written by Michael Bender, who was joined by Mary Mullarkey, Gregory Hobbs and Alex Martinez. A strongly worded dissent by Nathan Coats was joined by Nancy Rice and Allison Eid.

The case involved Felix Montes-Rodriguez, who was convicted of criminal impersonation for using another person’s Social Security number on a loan application at an automobile dealership.

The ID Theft Center warns on its website, “A dishonest person who has your Social Security number can use it to get other personal information about you. Identity thieves can use your number and your good credit to apply for more credit in your name. Then, they use the credit cards and do not pay the bills. You may not find out that someone is using your number until you are turned down for credit or you begin to get calls from unknown creditors demanding payment for items you never bought.”

Center Executive Director Jay Foley said the court was overlooking the fact that there may be a multitude of people with the same name. The Social Security number is supposed to be the distinguishing characteristic.

“By supplying either a fraudulent Social Security number or somebody else’s, I am, in fact, identifying myself as somebody other than who I am,” he said.

He said it was alarming that such a result would be coming from a state Supreme Court.

The Social Security Administration suggests that while it cannot fix problems from thieves using stolen Social Security numbers, consumers must pay attention to the possible problems.

“An identity thief might also use your Social Security number to file a tax return in order to receive a refund. If the thief files the tax return before you do, the IRS will believe you already filed and received your refund if eligible. If your Social Security number is stolen, another individual may use it to get a job. That person’s employer would report income earned to the IRS using your Social Security number, making it appear that you did not report all of your income on your tax return.”

Bankrate.com suggests, “The more people who see it, the more susceptible you are to identity theft, where you are victimized by someone fraudulently using your name and credit report to steal money.”

In the Colorado case, the court’s slim majority concluded that criminal impersonation is “when one assumes a false identity or a false capacity with the intent to unlawfully gain a benefit.”

While Montes-Rodriguez “admitted to using the false Social Security number … he argued that he did not assume a false identity or capacity under the statute because he applied for the loan using his proper name, birth date, address and other identifying information.”

L-R, Front: Gregory J.Hobbs, Jr., Mary Mullarkey, Alex J. Martinez.
Back: Nathan B. Coats, Michael L. Bender, Nancy E. Rice, Allison Eid

A jury had convicted him and a lower appeals court affirmed the result.

But Bender explained the facts of the case: Montes-Rodriguez used another person’s Social Security number because the car dealership required a number to check creditworthiness before approving a loan. The court did not explain why Montes-Rodriguez did not use his own number, or whether he even had one.

But the opinion notes the defendant “impliedly asserted his power or fitness to obtain the loan, and his ability to work legally in this country, and thereby repay it.”

“Although Montes-Rodriguez may have lacked the practical capacity to obtain a loan through Hajek Chevrolet because they could not check his credit without a Social Security number, he did not lack the legal capacity to obtain a loan,” Bender wrote.

He ordered a judgment of acquittal entered.

Coats, Rice and Eid, however, noted that the majority was “slicing, dicing, parsing, distinguishing and generally overanalyzing one short and relatively self-explanatory phrase.”

“The defendant’s deliberate misrepresentation of the single most unique and important piece of identifying data for credit-transaction purposes [is] precisely the kind of conduct meant to be proscribed as criminal,” the dissent said.

“By claiming another person’s Social Security number in a credit transaction, as the defendant did in this case, a person necessarily identifies himself as the person with the credit history associated with that number,” the opinion said.

“Where the nature of the transaction is such that a false Social Security number is not merely incidental but is rather the single piece of identifying data upon which the fraud in question depends, it cannot be assessed as merely ‘one of many pieces of identifying information’,” warned the dissent.

“For the purposes of the fraudulent transaction at issue, it is clearly the assumption of a false or fictitious identity.”

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