WASHINGTON — The Supreme Court on Wednesday appeared poised to rule that illegal immigrants who use phony Social Security numbers to get work should not be considered identity thieves, even if those numbers belong to real people.
The court seemed likely to reject the government’s argument that, under a 2004 law that metes out a mandatory two-year prison term for “aggravated identity theft,” prosecutors do not have to offer any proof that a defendant knew the identification belonged to someone else and was not simply made up.
Should someone get two extra years in prison “if it just so happens that the number you picked out of the air belongs to someone else?” Chief Justice John Roberts asked Justice Department lawyer Toby Heytens.
In response, Heytens urged the justices to look at the law from the perspective of the victims, whose seemingly private personal information is compromised.
Kevin Russell, a Washington lawyer arguing on behalf of an illegal immigrant worker from Mexico, said there is no question that his client committed a crime by using false documents. But Russell said Congress was trying to toughen penalties for identity thieves who gain access to people’s private information to drain their accounts and run up bills in their name.
Illegal immigrants commonly buy ID cards from forgers without any intention of invading someone else’s privacy, he said. Russell said there are roughly a billion possible Social Security numbers, only about 400 million of which have been used.
Russell’s client, Ignacio Carlos Flores-Figueroa, came to the attention of authorities when he decided to drop the assumed name and phony ID numbers he had used for six years. Flores- Figueroa gave his employer his real name and new Social Security and alien registration numbers. Those numbers, however, belonged to real people.
On Wednesday, the court’s conservative and liberal justices signaled they have problems with the government’s use of the law against defendants without additional evidence that those defendants knew they were invading the privacy of real people.
A decision is expected in the spring.
In Weld County, District Attorney Ken Buck and the county sheriff seized records from a Greeley income tax service as part of an identity-theft investigation. Buck alleges more than 1,300 immigrants filed tax returns with false or stolen identities.
Buck is taking his identity-theft cases to a grand jury after a judge ordered him to stop filing more cases because they included confidential information.
Other Supreme Court cases
• A public park in Utah that includes a monument to the Ten Commandments need not make room for a similar monument reflecting the beliefs of an unusual religion called Summum, the Supreme Court ruled on Wednesday.
Permanent monuments in public parks are not subject to the free-speech analysis that applies to speeches and leaflets in public forums, the court ruled. Instead, Justice Samuel Alito wrote for eight justices, such monuments are “best viewed as a form of government speech.”
Since the government is free to say what it likes, Alito said, the Summum church’s right to free speech under the First Amendment was not violated by the rejection of its monument by Pleasant Grove City, Utah.
• A congressional resolution apologizing for the overthrow of the Kingdom of Hawaii in 1893 does not strip the state of its authority to sell or transfer any of about 1.2 million acres of land, Hawaii Attorney General Mark Bennett told the Supreme Court on Wednesday.
Bennett and Kannon K. Shanmugam, representing the Office of Hawaiian Affairs, argued opposing sides in the appeal of a Hawaii Supreme Court ruling. That ruling blocked the sale of land conveyed to the state when Hawaii became the 50th state. Many native Hawaiians remain frustrated over how their islands were taken and divvied up by outsiders.
A decision in the case is not expected until June.
