By Jonathan Fairtlough, Deputy District Attorney, Los Angeles County High Tech Crime Division, Los Angeles, California
he following scenario should be all too familiar to investigators of identity theft. An investigative officer works up a case against an identity thief; search warrants are served, records gathered, and witnesses interviewed; and the thief is identified through hours of painstaking investigation. The officer brings a large and detailed filing package over to the office of the district attorney (DA) identifying several victims and repeated incidents. After the officer waits for hours to see a filing DA, the officer is told the case is filed with only two counts: identity theft and grand theft. Two weeks later, the officer finds out that the thief has been sentenced to probation or, even worse, was convicted of only a misdemeanor. What can the investigator do to get a better result? By following the 11 steps of case organization outlined here, officers can help to ensure a case resolution satisfactory to them.
Step One: Understand the Filing Process
All cases begin with the filing deputy DAs. Their initial review determines how many counts a given case will carry as well as if a defendant will be extradited, a felony filed, or the case sent back for further investigation. Usually, filing DAs are senior deputy district attorneys with experience in criminal prosecution who have two main responsibilities: to review and file cases in such a manner that they will result in successful prosecution and to review custody cases in sufficient time to have the matter ready for court within the statutory time period. Filing DAs must have a broad range of knowledge in criminal law and must be able to quickly identify the elements of a crime and apply the facts in the case reports to determine the appropriate charges. It is not uncommon for a filing DA to review cases of burglary, rape, murder, and driving under the influence of alcohol or drugs all in the same morning.
A large identity theft case cannot be effectively reviewed in the time available during the morning file rush unless the investigator organizes the case for filing. By organizing their identity theft cases in an appropriate manner, investigators will get a fairer and more thorough review—and therefore a better filing.
Step Two: Make an Appointment
If the case is being brought in for a warrant, then it is necessary to call the filing DA and make an appointment. Los Angeles County is probably like many other jurisdictions, so officers should not seek to file a large case on a Tuesday. In Los Angeles, Tuesday is the day when all the in-custody filings from the weekend are due. As a result, the filing DA has twice the normal workload on a Tuesday. Unless the defendant is in custody and the 48-hour rule applies, large identity theft cases should not be brought to the filing DA on a Tuesday.
If possible, officers should drop off the case file before the appointment date to give the filing DA the opportunity to review the file before the meeting. A face-to-face meeting benefits both parties, allowing the filing DA to ask questions while reviewing the material and allowing officers to justify the type of filing they feel is appropriate.
Although filed cases are the DA’s responsibility, any successful prosecution results from a partnership between the investigating officer and the prosecutor, and almost all prosecutors welcome officers’ active input. Investigators should always indicate their filing preferences.
Step Three: Avoid the Paper Brick File
Most identity theft packets are organized chronologically. This typically means that the first report available to the filing DA for review is the one with the least amount of information: the initial victim report, taken when the theft is discovered. This report lists the victim’s name as well as the time and method of discovery of the theft—and, in most cases, nothing else. Multiple supplemental reports contained in the packet provide the information needed to make a filing decision. These supplemental reports usually have attachments 5 to 10 times the length of the report. When complete, the entire package of reports and attachments resembles a large paper brick. When filing DAs see such a “brick” and have at best 30 minutes to review a file, they select the two counts easiest to prove for filing. They miss all the other potential charges because filing DAs do not have time to find and thoughtfully review all the evidence in a brick-shaped file.
To avoid submitting a brick, investigative officers must sort reports and separate them with tabs. Small investments of money in tabs and of time in organizing the file will enable the filing DA to review the relevant evidence with greater ease.
Step Four: Prepare the Case in Layers
In most criminal investigations there is one crime: a single murder, rape, or arson. Identity theft, however, is never a single, stand-alone crime. It is a crime of layers, a crime committed in such a manner that criminals can commit or facilitate other crimes and still hide their identity. When an identity thief uses the name and personal information of another person to obtain a credit card, the theft enables the thief to steal money and goods from the credit card company and the merchants that accept the card. A thief who uses someone’s social security number to get electric service activated is stealing a utility service.
Identity theft always has at least two and usually three victims every time it is committed. The first victim is the individual whose information has been used without permission (the ID victim). The second victim is the credit grantor, bank, or credit card company who accepted the information and used it to issue credit. The third victim is the merchant or provider of a service that accepted the credit card, loan, or surety and provided goods or services in exchange. For example, when an identity thief uses another’s credit card to purchase a basketball, the ID victim, the credit card company, and the sporting goods store are all victims.
There are three common ways to organize a case: by victim, by location, or by crime. The type of identity theft and the type of victim will help determine the best approach. A case in which a thief uses one ID victim credit card to shop at 10 different stores is best organized by merchant victim—that is, each store. In the filing packet, each store should have its own tab, allowing the filing DA to easily verify the facts surrounding and the witnesses to each commercial burglary and theft. When the credit cards of 200 different people have been processed through a merchant terminal, the file is best organized by ID victim, with tabs reserved for each victim’s interview and credit information.
Step Five: Prepare a Short Prosecution Summary
Once the case has been organized using tabs, officers should prepare a brief summary of the case. The summary should be one page and should include a description of the victims and the method of the crime, a reference to each victim or crime location by tab, and a list of the charges sought by the investigator of the case. An effective summary reads as follows:
This case involves the use of the personal information of three victims (see tabs 1–3) to obtain credit cards without authorization from American Express (tab 4), Discover (tab 5), Citibank (tab 6), and Sears (tab 7). These four cards were sent to a mailbox at 1234 Main Street (tab 8). Defendant 1 opened this mailbox. The four cards were used at 15 different stores in the city (tabs 9–24). Defendants 1 and 2 have been identified by store clerks at four of the locations as using each of the cards (tabs 9–12). Driver’s licenses in the name of two of the victims but bearing a picture of defendant 1 were found in the possession of defendant 1 (tabs 25 and 26). An identity card in the name of the third victim but bearing a picture of defendant 2 was found in the possession of defendant 2 (tab 27). Based on this evidence, I am requesting the filing of 3 counts of identity theft, 4 counts of credit card fraud, 15 counts of commercial burglary, and 3 counts of fraudulent document possession.
A filing DA reviewing a well-organized summary can easily check each tab to see if there is enough information for the requested filing. In addition, a listing of the requested charges and statutes allows officers to remind generalist filing DAs of potential charges without having to tell them directly. The summary report is also a great way for officers to justify any enhancement of charges based on amount of loss, number or vulnerability of victims, or defendants’ prior arrests and convictions.
Step Six: Make a Witness List
Getting a good filing does not necessarily ensure a successful prosecution. The next step is helping the DA get the right witnesses to court. To do so, officers need to provide a good witness list. In the sample case used in this article, there are 26 witnesses on the list. Some will be very important, such as the four clerks who identified the defendants, and others will be needed only for trial, such as the four custodians of record for the credit card companies. Unfortunately, most investigators do not prepare witness lists that allow DAs to easily determine the facts of the witness testimony. In most jurisdictions, officers fill out a form with the witness’s name, address, and contact telephone number. However, this limited information does not tell the DA if the witness is a custodian of record or a key identification witness without a detailed reading of the report. To make a better witness list, simply add a one-line description of the testimony each witness is expected to give. A witness entry can look as simple as this:
John Smith, 789 Main Street, Anywhere, CA; 213-974-1234
Custodian of record for American Express—can testify about Amex loss
Jane Johnson, 71234 Apple Street, Yourtown, CA; 213-974-1324
Macy’s employee who identified defendant 1 as the person who used the credit card of victim 2
Such a list will allow the person issuing the subpoenas to make sure that the right witnesses will be available to testify and that no unnecessary witnesses will waste their time with a needless trip to court.
Step Seven: Make a Restitution List
Identity theft and fraud cases have issues with restitution and loss. As mentioned earlier, an identity thief using a fraudulent credit card in the name of an ID victim to purchase a basketball can cause the cardholder, card issuer, and merchant all to suffer losses. By asking the right questions, officers can determine who suffered the financial loss. Did the sporting goods store get paid for the basketball, or was the card refused or the charge later charged back from the merchant’s account? Did the credit card company have any expenses in trying to investigate who committed the theft? Was the ID victim civilly sued for the charge, and did the suit require a defense in court? What documentation do the victims have to support their loss claims?
Once these questions have been answered, investigators should prepare a restitution report. The report should list what each victim is owed and on what information victims base their loss claims. This report should be kept separate from the main file so that it can be given to courts, clerks, and probation officers without turning over the entire police report.
All states view victim restitution as a primary right, but identity theft cases can take considerable time to wind their way through the court system. Investigators are often asked to provide a restitution list months after their cases have been filed. One hour spent organizing this information at the time of filing can save many hours later.
Step Eight: Ask for SDTs at the Time of Filing
At the time of the filing, officers should ask the filing DA to issue a subpoena duces tecum (SDT) for the records that the officer has obtained via search warrant. Although it seems like a waste of resources, it actually saves the prosecution and the victim time and money. Records obtained via search warrant must be authenticated by a witness, the custodian of record. However, in many jurisdictions, records obtained by subpoena are considered authentic and admissible once received by the court. Since many of the records used in an identity theft case fall under the business records exception, if the records are obtained by an SDT, the prosecutor can introduce the records without calling a witness. This conserves resources and allows for the easy presentation of evidence.
Step Nine: Prepare for Bail Hearings
Because identity thieves exploit the information and credit of others, officers should review with the prosecutor any bail defendants offer to ensure that it has not been obtained through another identity theft or other felonious means. In most jurisdictions, prosecutors can file a motion with an affidavit from the investigating officer explaining why the bail should be checked to make sure it has not been feloniously obtained. Investigators are used to considering this in narcotics cases, but identity theft cases with multiple victims should merit the same consideration. Draft an affidavit that outlines how the defendant has access to other people’s information and how that access can be used to obtain funds to post bail. A copy of the filing report should be attached to the affidavit; this ensures that all the facts can be considered by the court in reviewing bail.
Step Ten: Call the Prelim DA
The tabbed, organized case file is forwarded by the filing DA to the preliminary hearing court. This court is where the first offer is made and where the case is scheduled on the same calendar as multiple other cases, all handled by the same DA. Preliminary hearing DAs (prelim DAs) are often among the most junior members of the office, yet they handle the busiest calendar in the courthouse. They have to read and prepare every case on their calendar. Investigators should make a point of confirming the receipt of the tabbed file with the prelim DA.
The prosecution summary will allow the prelim DA to understand the case and make an appropriate offer. The tabbed filing packet will assist in the presentation of the case at the preliminary hearing and the trial. The appearance of the organized, tabbed file makes defendants fully aware of the extent and detail of the case against them and can encourage an early disposition.
Step Eleven: Form a Task Force with the DA
Finally, investigating officers should consider the benefits of a collaborative task force model, where multiple agencies and the prosecutor’s office work together to fight identity theft. Identity thieves rarely respect jurisdictional boundaries, and identity theft legislation and the methods available for filing charges are constantly being updated. A prosecutor assigned to the vertical prosecution of identity theft cases produces the best results for investigations. Vertical prosecution enables all aspects of the prosecution of a given case, from filing to trial, to be handled by one DA intimately familiar with the case.
A jurisdiction’s size does not limit a department’s ability to set up a collaborative task force. When a vertically assigned prosecutor regularly schedules a time period to be a part of the task force, case results will significantly improve. Investigators who are flexible and creative in respecting the limits to which DAs can cover their entire workload will find that everyone can work better to improve results in the fight against identity theft.■