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Identity Theft: The Moreno Defense

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by: Ryan • April 4, 2012 • no comments

Today, the COA issued an opinion in a case in which the defendant had raised the Moreno defense.

The Moreno defense -- as applied to Identity Theft -- is this: the defendant was not going to personally use the identification of the victim to deceive or defraud; rather, he was going to sell the identification for drugs or money. Since the buyer wouldn't be deceived or defrauded, no ID Theft by the defendant. And for the reasons explained in State v. Moreno, the defendant could not be convicted under an accomplice theory.

In today's opinion, the COA affirmed the defendant's convictions for identity theft, because there was sufficient evidence for a jury to infer that he would use the identification personally to deceive or defraud. (The opinion fails to mention that even Officer Glass -- the ID Theft expert -- concluded that he was going to sell the information, not use it himself. I know this from the appellate briefs in this case.)

But what's crucial for defense attorneys to know is that neither the AG's office nor the Court of Appeals took issue with the Moreno defense. In other words, no one disputed that if the defendant wasn't going to use the personal identification personally, he was not guilty of ID Theft.

So why did the defendant lose?

As I have previously discussed in the context of UUW , a motion for judgment of acquittal is an exceedingly difficult motion to win when there is any sort of factual or legal ambiguity. Here, there was enough evidence to infer that the defendant would use the cards personally, and there was no reason the jury had to believe him when he said he would sell them. In the light most favorable to the state, that's all it takes to survive MJOA.

The solution is to ask for a special jury instruction . Something along the lines of, "If the defendant was going to sell the personal information without using it personally, even if he knew the cards would subsequently be used to defraud, he is not guilty of identity theft. The burden is on the state to prove beyond a reasonable doubt that he was going to personally use the cards himself." [The actual language would depend on whether the state asked for an aid and abet instruction. If they do, then a distinction must be drawn between knowing the cards would be used to commit Identity Theft -- for which he'd be not guilty -- and having the conscious objective that they be used for Identity Theft, which would make him guilty.]

If the jury instruction you request is consistent with the law -- in this case, consistent with St v. Moreno -- and the judge refuses to give it, then you have a fantastic shot at reversal. If the judge gives the instruction, then the client who steals mail in the hope of selling the envelopes for drugs might be acquitted of Identity Theft.