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Dead Person is a 'Person' in Aggravated Identity Theft

By Robyn Hagan Cain on May 23, 2012 | Last updated on March 21, 2019

Dead men tell no tales, but the Eleventh Circuit Court of Appeals says that they can be victims of aggravated identity theft.

Last week, the Eleventh Circuit joined the First, Seventh, Eighth, and Ninth Circuits in finding that using a dead person’s identity can be grounds for an identity theft conviction.

Graciela Zuniga-Arteaga, a Mexican national, entered the U.S. and, after a run-in with the law, claimed to be a U.S. citizen named "MSG." Law enforcement investigated, and found that Zuniga-Arteaga was not MSG. They located and interviewed MSG's brother, who told them that MSG was a U.S. citizen who died as a child in 1960. They also acquired a certified copy of MSG's death certificate confirming the brother's statements. The information on the death certificate matched that repeatedly given by Zuniga-Arteaga, and shown on the birth certificate produced by her attorney.

Zuniga-Arteaga subsequently signed a sworn statement that the birth certificate with the name MSG was hers, and that she was a U.S. citizen. It was a bold move.

Zuniga-Arteaga was indicted for falsely representing herself to be a citizen of the United States and for possessing and using a means of identification of another person during and for aggravated identity theft.

Zuniga-Arteaga filed a Motion for Judgment of Acquittal under Federal Rule of Criminal Procedure (FRCP) 29, arguing that aggravated identity theft charge did not apply because MSG is deceased. The judge disagreed, and convicted Zuniga-Arteaga after a bench trial. Zuniga-Arteaga asked the Eleventh Circuit Court of Appeals to overturn her conviction, claiming that the district court misinterpreted the law.

The aggravated identity theft statute states: "Whoever, during and in relation to any felony violation ... knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person shall, in addition to the punishment provided for such felony, be sentenced to a term of imprisonment of 2 years."

Zuniga-Arteaga argued that the "person" referenced in the aggravated identity theft statute must be a living person.

Not so, said the Eleventh Circuit. After examining the plain language of the law, and the meaning of personhood, the appellate court concluded that Congress intended the term "person" to include both living and dead individuals in the context of the statute.

Five of the 13 appellate circuits subscribe to the theory that a person is a person, even in the afterlife; if you're representing a client charged with stealing a dead person's identity, consider a defense that's not based on the definition of personhood.

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