Use Of The Social Security Fraud Statute In The Battle Against Terrorism (42 U.S.C. § 408(a)(7)(A)-(C))
I. Introduction
As unlikely as it might seem at first, a
little-known felony fraud section of the Social Security Act (42 U.S.C. § 406,
1-189) (the "Act") has emerged as a highly effective weapon in the
domestic war against terrorism. Since the terrorist events of September 11, prosecutors
in some districts have used § 408(a)(7) of Title 42 to charge and detain
individuals suspected of engaging in, or suborning, terrorist activities, and
who have misused or misrepresented a social security account number
("SSN"). Specifically, under § 408(a)(7) of the Act, a person is
subject to criminal penalties if he or she:
(1) willfully, knowingly, and with
an intent to deceive uses a social security number on the basis of false
information furnished to the SSA (408 (a)(7 )(A));
(2) falsely
represents, with an intent to deceive, a number to be the social security
number assigned to him or her or to another person (408(a)(7)(B )); or
(3) knowingly altered a social security
card issued by the SSA, bought or sold a card that was, or was purported to be,
a card so issued, counterfeited a social security card, or possessed a social
security card or counterfeit social security card with an intent to sell or
alter it (408( a)(7)(C )).
An individual
who wrongfully uses or misrepresents a social security number can also face
criminal penalties under 18 U.S.C. § 1001, which makes it a criminal offense to
make false statements in any matter under the jurisdiction of any federal
department or agency of the United States. Thus, in any instance where an
individual has misused or misrepresented a social security number on a document
presented to any federal department or agency, two separate felonies may be
charged using 42 U.S.C. § 408(a)(7)(B) and 18 U.S.C. § 1001, respectively.
Similarly, a person who uses or provides counterfeit social security number
cards can be charged with violations of both 42 U.S.C. § 408(a)(7)(C) and 18
U.S.C. § 1028(a)(6) and (7), which prohibit the knowing transfer of stolen or
false identification documents. The same misuse of social security numbers can
be applied to other forms of fraud an d misrepresentation with respect to
government documents, including false attestations and/or statements made to
employers on I-9 forms for the purpose of satisfying a requirement of § 274A(b)
of the Immigration and Nationality Act, 8 U.S.C. § 1324(b), and false
statements made on applications for FAA security badges, passports, visas, or
asylum applications. See 18 U.S.C. § 1546(b)(2) and (3).
A person convicted of a violation
of § 408(a)(7) is guilty of a Class D felony, and will be fined or imprisoned
for not more than five years, or both. Because most terrorist suspects have
engaged in some form of SSN misuse, identity theft, or immigration fraud,
prosecutors generally prefer charging social security number misuse under §
408(a)(7)(B). This section provides prosecutors with a reliable and convenient
means of charging and detaining individuals suspected of terror-related
activities.
II. Rampant
misuse of social security numbers among individuals living or operating
illegally in the United States
Investigations by the FBI and other law
enforcement agencies since September 11 have identified a large number of
aliens living within the United States who are actively utilizing false
identities supported by bogus documentation. In almost every instance, this
includes the use of counterfeit or fraudulently issued social security numbers,
or legitimately issued numbers that have been stolen from other individuals or
issued illegally by a corrupt SSA employee. Fraudulent SSN 's are used to
obtain drivers' licenses, to secure employment, to apply for loans and credit
cards, and to live anonymously while avoiding detection by federal and state
authorities. Sometimes the SSN’s are completely fictitious, comprised of a
random combination of familiar numbers. While these numbers are usually easily
detected by law enforcement, they can be quickly and cheaply purchased on the
black market and provide sufficient deception to secure the thief quick access
to public services. Other times identity thieves adopt names and social
security numbers culled from newspaper death notices, or from information lists
found on the Internet. For example, some Internet hacker sites provide
extensive lists of social security numbers, both legitimate and bogus,
available to anyone with access to the sites. In addition, these Internet sites
sometimes include corresponding names, addresses, dates of birth, telephone
numbers, and credit card numbers of individuals. In one instance in 2001, the
Office of the Inspector General/Social Security Administration (“OIG/SSA”)
investigated and prosecuted an individual who advertised several thousand valid
social security numbers (with names) for purchase on eBay , with bids for each
number starting at one dollar.
In some instances, a legitimate number
(one actually issued by SSA) can be purchased from a black-market vendor who
has stolen the number from an unsuspecting individual. When a legitimate social
security number holder has his number stolen, she is usually unaware of the
theft until her credit is destroyed or her identity is used criminally by the
thief. A legitimate SSN, unless reported stolen, will allow the thief almost
unlimited access to employment, credit cards, replacement social security
cards, driver’s license, and any other sensitive identity document available to
a legitimate social security number holder.
It is not unusual for an alien to
deceive SSA into issuing a valid social security number by filing applications
containing false information supported by bogus identity documents. In order to
secure a new or replacement social security number, SSA requires that an
individual show proof of identity, including at least two identification
documents such as a driver's license, U.S. passport, birth certificate, U.S.
government or state employee ID card, school ID card, record, or report card,
marriage or divorce record, military records, clinic, doctor, or hospital
records, adoption records, or alien registration number. See SSA Programs
and Operations Manual ("POMS ", §§ RM 00 203.100-400 (20 01). Library cards,
vehicle registration, rental or lease agreements, credit cards, check cashing
cards, bank deposit slips, telephone or utility bills, or any identification
documents issued by a commercial firm are not considered identity documents and
cannot be used to secure a social security number. See POMS § RM
00203.770.
Unfortunately,
very well-crafted, false identification documents are available on the Internet
and/or can be easily purchased on the black market. SSA frequently discovers
and rejects applications for social security numbers that are supported by a
combination of bogus identity documents, including a fake driver's license,
counterfeit birth certificate, fake baptism certificate, or false INS alien
registration number. However, some bogus documents are almost impossible to
detect, and SSA sometimes issues social security numbers that are based on
fraudulent representations. Once a new SSN has issued, SSA has little ability
to prevent fraud or misuse associated with the number, and the recipient is
free to live, work, and travel freely within the United States until his
illegal activities are discovered. In recent testimony be fore Congress , SSA
Commissioner James B. Lockhart, III reported that an audit of social security
numbers issued during 2001 revealed that 999 of 3,557 original SSN applications
reviewed by the SSA/OIG were approved based on improper evidentiary
documentation. (See Testimony of James B. Lockhart, III, U.S.
Senate Committee On Finance, confirmation hearing for Deputy Commissioner of
SSA, 11/1 5/01).
Legitimate social security numbers
issued by corrupt SSA employees are the identity documents most prized by
identity thieves and bring the most value on the black market. Newly issued
social security numbers are almost impossible to detect and provide a
legitimate cover for illegal activities and for aliens seeking to blend into
American society. In the past five years, the SSA Inspector General has investigated
fifty-five cases involving sixty-one SSA employees who have disclosed, sold, or
released SSN in formation. (See Testimony of
James B. Lockhart, III, U.S. Senate Committee On Finance, confirmation hearing
for Deputy Commissioner of SSA, 11/15/01). Criminal allegations involving SSA
employees include the processing of false social security number card
applications, the selling of legitimate social security numbers, and the
printing of counterfeit social security number cards. Forty-five cases have
resulted in criminal convictions, approximately half of which resulted in
incarceration of the corrupt employees. Until 9-11, a long-standing SSA policy
allowed individuals to obtain up to fifty-two “replacement” social security
cards during any one-year period. Prior to the events of September 11, audits
by the SSA Inspector General had identified this policy of almost unlimited
access to “replacement” social security cards as ripe for abuse, noting that
during year 2000, 192 individuals obtained six or more replacement SSN cards. (See Testimony of
James B. Lockhart, III, U.S. Senate Committee On Finance, confirmation hearing
for Deputy Commissioner of SSA, 11/15/01).
III.
The statutory framework of 42 U.S.C. § 408(a)(7)(A)-(C)
In 1981, Congress amended the misdemeanor
provisions of the Act, making Social Security fraud (including SSN misuse) a
felony, punishable by five years in prison and a fine up to $5,000. (See 1981
Amendments. Pub. L. 97-123). The SSA felony fraud statute, cited as 42 U.S.C. §
408(a)(1)-(8), contains the Social Security Act's primary criminal provisions.
The statute, set forth below in pertinent part, comprehensively spells out
restraints on fraud by specifying requirements for disclosure of specific
events, and by identifying facts that affect the right to payment of SSA
benefits.
In general
Whoever -
(7) for the purpose of causing an
increase in any payment authorized under this subchapter (or any other program
financed in whole or in part from federal funds), or for the purpose of causing
a payment under this subchapter (or any such other program) to be made when no
payment is authorized thereunder, or for the purpose of obtaining (for himself
or any other person) any payment or any other benefit to which he (or such
other person) is not entitled, or for the purpose of obtaining anything of
value from any person , or for any
other purpose (emphasis added)
(A) willfully,
knowingly, and with intent to deceive, uses a social security account number,
assigned by the Commissioner of Social Security (in the exercise of the
Commissioner's authority under § 405(c)(2)(A) of this title to establish and
maintain records) on the basis of false information furnished to the
Commissioner of Social Security by him or by any other person;
(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;
(C) knowingly
alters a social security card issued by the Commissioner of Social Security,
buys or sells a card that is, or purports to be, a card so issued, counterfeits
a social security card, or possesses a social security card or counterfeit
social security card with intent to sell or alter it.
IV.
Legislative history of the fraud provisions of 42 U.S.C. § 408(a)
A. The
1972 amendment
In 1972, misdemeanor fraud provisions
were first added to the Act, designed by Congress for the sole purpose of
preventing any person from obtaining federal benefits by using a fraudulent
social security number. Specifically, the Act’s 1972 fraud subsection forbade
anyone from using a social security number to increase any payment or to obtain
any improper payment or benefit under any federal program. (See Social Security
Amendments of 1972, Pub.L. No. 92-603, sec. 130(a), 1972 U.S.C.C.A.N. 1548,
1586; See
also H.R.CONF.REP. NO. 92-1605(1972)
reprinted
in 1972
U.S.C.C.A.N. 4989, 5370, 5373 (citing prevention of improper benefit payments
as the sole purpose behind the new provisions)).
B. The 1976 amendment
In 1976, the reach of the penalty was
expanded substantially when the Act was amended to include not only those who
sought unauthorized or excessive federal benefits, but also those who misuse d
social security numbers "for any
other purpose."(emphasis added). (See Tax Reform Act
of 1976, Pub.L. No. 94-455, sec. 1211, 90 Stat. 1520, 1711 (1976); codified at
42 U.S.C. § 405(c)(2)(C)(i)) (the "1976 Act"). The House Conference
Report to the 1976 Act spoke directly to the broadened statutory language,
stating:
[The Senate amendment] makes a
misdemeanor the willful, knowing, and deceitful use of a social security number
for any purpose. In addition,
the Senate amendment changes the Privacy Act so that a State or political
subdivision may use social security numbers for the purpose of establishing the
identification of individuals affected by any tax, general public assistance,
driver's license, and motor vehicle registration laws.
See H.R.CONF.REP. NO. 94-1515
(1976), reprinted
in 1976
U.S.C.C.A.N. 2897, 4030, 4118, 4 194-9 5.
In a particularly revealing and
crucial portion of the legislative history, the 1976 report of the Senate
Finance Committee also sought to explain the addition of the words "for
any other purpose" to the Act:
While the Social Security Act
currently provides criminal penalties for the wrongful use of a social security
number for the purpose of obtaining or increasing certain benefit payments,
including social security benefits, there is no provision in the Code or in the
Social Security Act relating to the use of a social security number for
purposes unrelated to benefit payments. The committee believes that social security numbers
should not be wrongfully used for any purpose. (Emphasis
added).
See S.Rep. No. 94-93 8(I) (1976), reprinted in 1976 U.S.C.C.A.N. 3438, 3819.
This insightful look into
legislative history demonstrates that Congress has unequivocally explained that
the words "for any other purpose" mean precisely what they say.
Courts have reached similar conclusions regarding the legislative intent behind
the words "for any other purpose." See
United States v. Silva-Chavez, 888 F.2d 14 81 (5th
Cir. 1989).
C. The 1981 amendment
In 1981, Congress again amended 42
U.S.C. § 408, changing the offense from a misdemeanor to a felony and adding
the language "or for the purpose
of obtaining anything of value from any person" before "or for any other purpose." (emphasis
added). (See
Omnibus
Reconciliation Act, Pub.L. No. 97-123, sec. 4, 95 Stat. 1659, 1663-64 (1981)).
While the House Conference Report accompanying the amendment offers no
explanation of the reasons for the change (see H.R.CONF.REP. NO. 97- 409
(1981)) reprinted
in 1981
U.S.C.C.A.N. 2681, 2687-88), the text of the amendment makes clear Congress'
intent both to punish a broader range of acts and to impose a stiffer penalty.
In summing up the prior law the House Conference Report stated:
Criminal penalties are
provided for: (1) knowingly and willfully using a social security number that
was obtained with false information, (2) using someone else's social security
number, or (3) unlawfully disclosing or compelling the disclosure of someone
else's social security number.
See H.R.CONF.REP. NO.97-409(1981), reprinted in
1981 U.S.C.C.A.N. 2681, 2687.
V. Charging
decisions and elements of the crime: 42 U.S.C . § 408(a)(7)(A)-(C)
The felony provisions of 42 U.S.C. §
408(a)(7)(A)-(C) are particularly effective in charging cases where an
individual has entered the country illegally, or has tried to manipulate the
identification systems currently in place. The elements of proof for each
subsection of § 408(a)(7) are more flexible than those required by 18 U.S.C. §
102 8, a better known identity theft statute, that also contains subsections
dealing with the misuse of a social security number. What follows is a
description of each of the three subsections of § 408(a)(7), including a breakdown of the elements necessary to
prove a charge under each, and a brief suggestion of when and how each
subsection should be charged.
In an effort to make the discussion of
the charging elements more meaningful, a fact-driven case study has been
provided at the end of this article. The case study is not necessary to an
understanding of the subsections and elements of § 408(a)(7), but the factual
description can provide helpful insight into applying the elements for the
subsections set forth below. The case study involves an individual indicted,
because of venue issues, in both the Central District of California and the
District of Arizona.
A. 42 U.S.C . § 408 (a)(7 )(A) 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)
(A) willfully, knowingly, and with
intent to deceive, uses a social security account number, assigned by the
Commissioner of Social Security (in the exercise of the Commissioner's
authority under § 405(c)(2) of this title to establish and maintain records) on
the basis of false
information furnished to the Commissioner of Social Security by
him or by any other person;
Elements of the crime
The elements required to prove a
violation of § 408(a)(7)(A) are:
(1) willful and knowing use of a
Social Security account number;
(2) with intent to deceive;
(3) based on false information
furnished to the Commissioner of Social Security.
See 42 U.S.C. §
408(a)(7 )(A).
When
to charge?
Any fraudulent use o f a social security
card obtained on the basis of false information supplied to SSA, and used
deceitfully, is actionable and constitutes a felony for purposes of §
408(a)(7)(A). For example: a subject in the U.S. on a tourist visa secures a
non-work SSN using his French passport. The subject then uses an alias to file
a bogus application for asylum, resulting in INS approval and issuance of a
green card and alien registration number. The subject then uses his new name
and illegally procured INS documents to apply for a second social security
number, thus completing the creation of a new identity. The subject then uses
the second social security number to secure credit cards, open bank accounts,
attend flight training, and make applications for employment as a pilot. The
subject’s use of the social security number is actionable because he used false
and fraudulent documents (deceptively procured from the INS) to deceive SSA
into issuing him a new social security number, and he may be charged with a
felony under § 4 08(a)(7 )(A). See United States v. Pryor, 32
F .3d 11 92 (7 th Cir. 1994) (Defendant acted "willfully,
knowingly, and with intent to deceive," in illegally using social security
number obtained on basis of false information).
B. 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 conclude d 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 social security
number, 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 Ninth Circuit has held that an
alien’s use of a false social security number 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. 20 00).
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
social security number 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 social security
number 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 a social security number 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).
C. 42
U.S.C . § 408 (a)(7 )(C) 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)
(C) knowingly alters a social security
card issued by the Commissioner of Social Security, buys or sells a card that
is, or purports to be, a card so issued, counterfeits a social security card,
or possesses a social security card or counterfeit social security card with
intent to sell or alter it.
Elements of the crime
The elements required to prove a
violation of § 408 (a)(7 )(C) a re:
(1) knowingly alters a social security
card; or
(2) counterfeits or possesses a social
security card with intent to sell or alter it; or
(3) buys, or sells a social security card.
42 U.S.C. § 408(a)(7 )(C).
When
to charge?
This subsection is typically charged
when a subject has knowingly altered a social security card (usually to remove
work restrictions from the face of the card), or has manufactured or
counterfeited a card or cards for sale on the black market. This section can
also be charged when an individual is discovered to have purchased a social
security card for his own use or for resale. Note : Nothing in
the case study supports a charge under 42 U.S .C. § 408 (a)(7)(C ).
Altered
or counterfeited cards
In order to qualify as counterfeit, a
social security card must include the name of the number holder and the social
security number. United States v. Gomes, 969 F.2d 1290
(1st Cir. 1992) (“A bogus document is counterfeit if it is calculated to
deceive an honest, sensible, and unsuspecting person of ordinary observation
and care dealing with a person supposed to be upright and ho nest”). Id. at 1293.
Conduct charged under §408 (a)(7 )(C) most commonly a rises from:
1) the
printing or manufacture of counterfeit social security cards for resale on the
black market; or
2) the altering of social security
cards to remove work restrictions from the face of the card.
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