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Using Another’s Social Security Number Isn’t Criminal Impersonation, Court Rules

LAW WEEK COLORADO

DENVER — Felix Montes-Rodriguez applied for an auto loan at a Chevrolet dealership in Longmont. He gave accurate information for his name, address and employer, but he gave someone else’s social security number.

This was not criminal impersonation, the Colorado Supreme Court ruled Monday in a 4-3 decision overturning his conviction for the crime. The dissenting opinion criticized the majority for “slicing” and “dicing” the criminal impersonation statute to exclude conduct that the law was intended to cover.

The majority ruled that Montes-Rodriguez did not commit criminal impersonation because he “did not assume a false or fictitious identity or capacity.” Relying on Colorado Supreme Court precedent, the majority held that a person assumes a false identity “by holding one’s self out to a third party as being another person.” Though Montes-Rodriguez gave someone else’s social security number, he used his own name and thus was not pretending to be someone else, the court held.

The majority ruled that a person assumes a false capacity “when he or she assumes a false legal qualification, power, fitness, or role.” The prosecution did not present evidence that a social security is a legal requirement to obtain a loan, the majority held.
Justice Michael Bender wrote the majority opinion, joined by Chief Justice Mary Mullarkey and justices Gregory Hobbs and Alex Martinez.

Justice Nathan Coats wrote the dissenting opinion, joined by justices Allison Eid and Nancy Rice.

“I not only believe the majority misconstrues the Criminal Impersonation statute and reaches the wrong result in this case,” Coats wrote, “but by slicing, dicing, parsing, distinguishing, and generally over-analyzing (over the course of some thirty paragraphs) one short and relatively self-explanatory phrase, the majority manages to exclude from the statutory proscription conduct lying at its very heart.

“Because I consider the defendant’s deliberate misrepresentation of the single most unique and important piece of identifying data for credit-transaction purposes to be precisely the kind of conduct meant to be proscribed as criminal by this statute, I respectfully dissent.”

The majority opinion may have “little practical effect in future cases,“ Coats added, because the unauthorized use of a social security number to gain credit is now dealt with much more expressly and punished more severely under the state’s Identity Theft Act. Still, Coats objected to the majority “so narrowly parsing the individual terms chosen by the legislature that the type of conduct at which its proscription is most directly aimed ultimately falls through the cracks and remains unregulated.”

Montes-Rodriguez was convicted in 2006 in Boulder County Court, and his conviction was affirmed in 2009 in a 2-1 decision of the Colorado Court of Appeals.

Attorney Susan Foreman of Denver represented Montes-Rodriguez on appeal; Alexander C. Reinhardt handled the case for the Colorado Attorney General’s office.

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