108TH CONGRESS REPORT " ! HOUSE OF REPRESENTATIVES 2d Session 108–528 

IDENTITY THEFT PENALTY ENHANCEMENT ACT 

JUNE 8, 2004.—Committed to the Committee of the Whole House on the State of 

the Union and ordered to be printed 

Mr. SENSENBRENNER, from the Committee on the Judiciary, 

submitted the following 

R E P O R T 

together with 

DISSENTING VIEWS 

[To accompany H.R. 1731] 

[Including cost estimate of the Congressional Budget Office] 

The Committee on the Judiciary, to whom was referred the bill 

(H.R. 1731) to amend title 18, United States Code, to establish penalties for aggravated identity theft, and for other purposes, having 

considered the same, report favorably thereon with an amendment 

and recommend that the bill as amended do pass. 

CONTENTS 

Page 

The Amendment ...................................................................................................... 2 

Purpose and Summary ............................................................................................ 3 

Background and Need for the Legislation ............................................................. 4 

Committee Amendments ......................................................................................... 6 

Hearings ................................................................................................................... 7 

Committee Consideration ........................................................................................ 7 

Vote of the Committee ............................................................................................. 8 

Committee Oversight Findings ............................................................................... 8 

New Budget Authority and Tax Expenditures ...................................................... 8 

Congressional Budget Office Cost Estimate .......................................................... 8 

Performance Goals and Objectives ......................................................................... 9 

Constitutional Authority Statement ...................................................................... 9 

Section-by-Section Analysis and Discussion .......................................................... 9 

Agency Views ........................................................................................................... 12 

Changes in Existing Law Made by the Bill, as Reported ..................................... 13 

Committee Jurisdiction Letters .............................................................................. 17 

Markup Transcript .................................................................................................. 19 

Dissenting Views ..................................................................................................... 65 

2 

THE AMENDMENT

The amendment is as follows: 

Strike all after the enacting clause and insert the following: 

SECTION 1. SHORT TITLE. 

This Act may be cited as the ‘‘Identity Theft Penalty Enhancement Act’’. 

SEC. 2. AGGRAVATED IDENTITY THEFT. 

(a) IN GENERAL.—Chapter 47 of title 18, United States Code, is amended by 

adding after section 1028, the following: 

‘‘§ 1028A. Aggravated identity theft 

‘‘(a) OFFENSES.—

‘‘(1) IN GENERAL.—Whoever, during and in relation to any felony violation 

enumerated in subsection (c), 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. 

‘‘(2) TERRORISM OFFENSE.—Whoever, during and in relation to any felony 

violation enumerated in section 2332b(g)(5)(B), knowingly transfers, possesses, 

or uses, without lawful authority, a means of identification of another person 

or a false identification document shall, in addition to the punishment provided 

for such felony, be sentenced to a term of imprisonment of 5 years. 

‘‘(b) CONSECUTIVE SENTENCE.—Notwithstanding any other provision of law—

‘‘(1) a court shall not place on probation any person convicted of a violation 

of this section; 

‘‘(2) except as provided in paragraph (4), no term of imprisonment imposed 

on a person under this section shall run concurrently with any other term of 

imprisonment imposed on the person under any other provision of law, including any term of imprisonment imposed for the felony during which the means 

of identification was transferred, possessed, or used; 

‘‘(3) in determining any term of imprisonment to be imposed for the felony 

during which the means of identification was transferred, possessed, or used, 

a court shall not in any way reduce the term to be imposed for such crime so 

as to compensate for, or otherwise take into account, any separate term of imprisonment imposed or to be imposed for a violation of this section; and 

‘‘(4) a term of imprisonment imposed on a person for a violation of this section may, in the discretion of the court, run concurrently, in whole or in part, 

only with another term of imprisonment that is imposed by the court at the 

same time on that person for an additional violation of this section, provided 

that such discretion shall be exercised in accordance with any applicable guidelines and policy statements issued by the Sentencing Commission pursuant to 

section 994 of title 28. 

‘‘(c) DEFINITION.—For purposes of this section, the term ‘felony violation enumerated in subsection (c)’ means any offense that is a felony violation of—

‘‘(1) section 641 (relating to theft of public money, property, or rewards), 

section 656 (relating to theft, embezzlement, or misapplication by bank officer 

or employee), or section 664 (relating to theft from employee benefit plans); 

‘‘(2) section 911 (relating to false personation of citizenship); 

‘‘(3) section 922(a)(6) (relating to false statements in connection with the acquisition of a firearm); 

‘‘(4) any provision contained in this chapter (relating to fraud and false 

statements), other than this section or section 1028(a)(7); 

‘‘(5) any provision contained in chapter 63 (relating to mail, bank, and wire 

fraud); 

‘‘(6) any provision contained in chapter 69 (relating to nationality and citizenship); 

‘‘(7) any provision contained in chapter 75 (relating to passports and visas); 

‘‘(8) section 523 of the Gramm-Leach-Bliley Act (15 U.S.C. 6823) (relating 

to obtaining customer information by false pretenses); 

‘‘(9) section 243 or 266 of the Immigration and Nationality Act (8 U.S.C. 

1253 and 1306) (relating to willfully failing to leave the United States after deportation and creating a counterfeit alien registration card); 

‘‘(10) any provision contained in chapter 8 of title II of the Immigration and 

Nationality Act (8 U.S.C. 1321 et seq.) (relating to various immigration offenses); or 

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‘‘(11) section 208, 811, 1107(b), 1128B(a), or 1632 of the Social Security Act 

(42 U.S.C. 408, 1011, 1307(b), 1320a–7b(a), and 1383a) (relating to false statements relating to programs under the Act).’’. 

(b) AMENDMENT TO CHAPTER ANALYSIS.—The table of sections for chapter 47 of 

title 18, United States Code, is amended by inserting after the item relating to section 1028 the following new item: 

‘‘1028A. Aggravated identity theft.’’. 

(c) APPLICATION OF DEFINITIONS FROM SECTION 1028.—Section 1028(d) of title 

18, United States Code, is amended by inserting ‘‘and section 1028A’’ after ‘‘In this 

section’’. 

SEC. 3. AMENDMENTS TO EXISTING IDENTITY THEFT PROHIBITION. 

Section 1028 of title 18, United States Code, is amended—

(1) in subsection (a)(7)—

(A) by striking ‘‘transfers’’ and inserting ‘‘transfers, possesses,’’; and 

(B) by striking ‘‘abet,’’ and inserting ‘‘abet, or in connection with,’’; 

(2) in subsection (b)(1)(D), by striking ‘‘transfer’’ and inserting ‘‘transfer, 

possession,’’; 

(3) in subsection (b)(2), by striking ‘‘three years’’ and inserting ‘‘5 years’’; 

and 

(4) in subsection (b)(4), by inserting after ‘‘facilitate’’ the following: ‘‘an act 

of domestic terrorism (as defined under section 2331(5) of this title) or’’. 

SEC. 4. AGGREGATION OF VALUE FOR PURPOSES OF SECTION 641. 

The penultimate paragraph of section 641 of title 18 of the United States Code 

is amended by inserting ‘‘in the aggregate, combining amounts from all the counts 

for which the defendant is convicted in a single case,’’ after ‘‘value of such property’’. 

SEC. 5. DIRECTIVE TO THE UNITED STATES SENTENCING COMMISSION. 

(a) IN GENERAL.—Pursuant to its authority under section 994(p) of title 28, 

United States Code, and in accordance with this section, the United States Sentencing Commission shall review and amend its guidelines and its policy statements 

to ensure that the guideline offense levels and enhancements appropriately punish 

identity theft offenses involving an abuse of position. 

(b) REQUIREMENTS.—In carrying out this section, the United States Sentencing 

Commission shall do the following: 

(1) Amend U.S.S.G. section 3B1.3 (Abuse of Position of Trust of Use of Special Skill) to apply to and punish offenses in which the defendant exceeds or 

abuses the authority of his or her position in order to obtain unlawfully or use 

without authority any means of identification, as defined section 1028(d)(4) of 

title 18, United States Code. 

(2) Ensure reasonable consistency with other relevant directives, other sentencing guidelines, and statutory provisions. 

(3) Make any necessary and conforming changes to the sentencing guidelines. 

(4) Ensure that the guidelines adequately meet the purposes of sentencing 

set forth in section 3553(a)(2) of title 18, United States Code. 

SEC. 6. AUTHORIZATION OF APPROPRIATIONS. 

In addition to any other sums authorized to be appropriated for this purpose, 

there is authorized to be appropriated to the Department of Justice, for the investigation and prosecution of identity theft and related credit card and other fraud 

cases constituting felony violations of law, $2,000,000 for fiscal year 2005 and 

$2,000,000 for each of the 4 succeeding fiscal years. 

PURPOSE AND SUMMARY

H.R. 1731, the ‘‘Identity Theft Penalty Enhancement Act,’’ addresses the growing problem of identity theft. Currently under 18 

U.S.C. § 1028 many identity thieves receive short terms of imprisonment or probation; after their release, many of these thieves will 

go on to use false identities to commit much more serious crimes. 

H.R. 1731 provides enhanced penalties for persons who steal identities to commit terrorist acts, immigration violations, firearms offenses, and other serious crimes. The bill also amends current law 

to impose a higher maximum penalty for identity theft used to facilitate acts of terrorism. 

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BACKGROUND AND NEED FOR THE LEGISLATION

The terms ‘‘identity theft’’ and ‘‘identity fraud’’ refer to all types 

of crimes in which someone wrongfully obtains and uses another 

person’s personal data in some way that involves fraud or deception, typically for economic or other gain, including immigration 

benefits. The Federal Trade Commission (‘‘FTC’’) received 161,819 

victim complaints of someone using another’s information in 2002. 

Of these, 22% involved more than one type of identity crime. 

For 2002, the FTC breakdown of types of identity theft shows 

that 42% of complaints involved credit card fraud, 22% involved the 

activation of a utility in the victim’s name, 17% involved bank accounts opened in the victim’s name, 9% involved employment 

fraud, 8% involved government documents or benefits fraud, 6% involved consumer loans or mortgages obtained in the victim’s name, 

and 16% involved medical, bankruptcy, securities and other miscellaneous fraud. 

In 2003, the FTC randomly sampled households. A total of 4.6 

% of survey participants indicated that they had discovered they 

were victims of some type of identity theft in the past year. This 

result suggests that almost 10 million Americans were the victims 

of some form of identity theft within the last year, which means despite all the attention to this type of crime since September 11, 

2001 the incidence of this crime is increasing. 

As international cooperation increases to combat terrorism, alQaida and other terrorist organizations increasingly turn to stolen 

identities to hide themselves from law enforcement. For example, 

according to testimony by Jim Huse, Inspector General of the Social Security Administration before a 2002 joint hearing of two 

Subcommittees of this Committee, five Social Security numbers associated with some of the terrorists appeared to be counterfeit and 

were never issued by the Social Security Administration, one was 

assigned to a child, and four of the terrorists were associated with 

multiple Social Security numbers. An FBI agent testified at the 

same hearing, ‘‘terrorists have long utilized identity theft as well 

as Social Security number fraud to enable them to obtain such 

things as cover employment and access to secure locations. These 

and similar means can be utilized by terrorists to obtain driver’s 

licenses, and bank and credit card accounts, through which terrorism is facilitated.’’

Since September 11, 2001, Federal and State officials have taken 

notice of this crime because of the potential threat to security, but 

the cost to the consumer and corporations is equally alarming. The 

FTC estimates the loss to businesses and financial institutions 

from identity theft to be $47.6 billion. The costs to individual consumers are estimated to be approximately $5.0 billion. 

As this crime increases, we must try to find new ways to combat 

it. Websites developed by the FTC and consumer groups encourage 

consumers to protect themselves by shredding mail and keeping a 

close watch over their credit reports; yet, the FTC’s statistics suggest that identity thieves are obtaining individuals’ personal information for misuse not only through ‘‘dumpster diving,’’ but also 

through accessing information that was originally collected for an 

authorized purpose. The information is accessed either by employees of the company or of a third party that is authorized to access 

5 

the accounts in the normal course of business, or by outside individuals who hack into computers or steal paperwork likely to contain personal information. 

In one such case, the Justice Department charged a 33-year-old 

customer service representative from Long Island, New York, with 

identity theft and fraud for using his position at a company that 

provided computer software and hardware to banks and lending 

companies to access personal consumer credit information from 

three credit reporting agencies. The scheme allowed him to access 

the personal information of over 30,000 victims. 

The insider threat from identity theft and identity fraud is a 

threat to personal security as well as national security. The United 

States Attorney in Atlanta charged 28 people with participating in 

a fraud ring that supplied over 1,900 individuals with fraudulent 

Social Security cards. The cards were supplied by a Social Security 

Administration clerk in exchange for $70,000 in payoffs. 

Under current law, many perpetrators of identity theft receive 

little or no prison time. That has become a tacit encouragement to 

those arrested to continue to pursue such crimes. The following are 

examples of instances in which persons involved in identity theft 

received little or no prison time: 

U. S. v. Amry. On October 15, 2003, Mohamed Amry, a former 

employee of a Bally’s Health Club in Cambridge, Massachusetts, 

pleaded guilty to a multi-count indictment charging him with conspiracy to commit bank fraud (18 U.S.C. § 371), bank fraud (18 

U.S.C. § 1344), conspiracy to commit access device fraud and access 

device fraud (18 U.S.C. § 1029), and conspiracy to commit identity 

theft (18 U.S.C. § 1028). Amry, using a skimmer to obtain creditcard data from members of the health club, provided stolen names, 

Social Security numbers, and credit-card information of at least 30 

people to Abdelghani Meskini, who pleaded guilty to conspiracy in 

connection with the plot to blow up Los Angeles International Airport in 1999. Using victims’ names, Amry reportedly assisted 

Meskini in creating false green cards and Social Security cards. 

Meskini used the information to open bank accounts in New York, 

where he deposited counterfeit checks. Amry was not charged with 

knowledge of the terrorists’ intentions in obtaining and using the 

stolen identities. On January 17, 2003, Amry was sentenced to 15 

months imprisonment. 

U. S. v. Scheller. Suzanne M. Scheller was a financial institution 

employee. Scheller accessed the financial institution’s computer 

system and searched for potential customers for a friend who was 

starting a real estate business. After identifying prospects, Scheller 

then provided the friend with the customer account information. 

Scheller admitted that she knew her unauthorized access was 

against the policy of the financial institution. The investigation established that some of the information provided by Scheller was actually used by another individual unknown to her as part of an 

identity theft scheme. Imposters used the customer account information to steal the identity of the customers and conduct transactions at the financial institution. Scheller pleaded guilty to one 

count of obtaining unauthorized computer access to customer account information from a financial institution, in violation of 18 

U.S.C. §§ 2, 1030(a)(2)(A), 1030(c)(2)(B)(i), 1030(c)(2)(B)(iii). On November 30, 2001, Scheller was sentenced to 36 months probation. 

6 

U. S. v. Opara. On February 7, 2002, Chuck Opara, after having 

pleaded guilty to multiple counts of submitting false claims and 

identity theft, was sentenced to 15 months imprisonment. According to court documents filed in this case, Opara engaged in a multimillion dollar fraud scheme. As part of the scheme, Opara stole the 

identities of 24 people, and he submitted bogus Federal income tax 

returns for those people that sought average refunds of $50,000. 

The fraudulent tax returns asked that refunds be mailed to two 

dozen mail-drops that Opara had acquired. 

U. S. v. Maxfield. On five separate occasions between 1996 and 

1998, William K. Maxfield used the Social Security number of a 

William E. Maxfield (no relation) to obtain loans and lines of credit. 

He was able to obtain the false Social Security number through his 

employment at an auto dealership. Maxfield defaulted on some of 

the loans but was timely on others. Ultimately, most of the lenders 

were paid; however, the more significant injury was to William E. 

Maxfield, who suffered harm to his credit rating and had great difficulty in clearing what appeared to be delinquent accounts. On 

January 9, 2003, William K. Maxfield was sentenced to 10 months 

imprisonment. 

U. S. v. Rodriguez. While receiving Title II disability benefits, 

Dolores Rodriguez worked as a science teacher at a school under 

her husband’s Social Security number. She received over $80,000 

in disability benefits. She pled guilty to a violation of 18 U.S.C. 

§ 641. She was sentenced to 12 months home confinement, 5 years 

probation, and restitution. 

U. S. v. Fergerson. Diana Fergerson had stolen the identity of another person years earlier. She used the stolen identity to apply for 

and receive Social Security benefits. She also used the stolen identity to establish credit. She received over $45,000 in Social Security 

disability benefits. She pled guilty to several charges including violations of 18 U.S.C. § 641 and 18 U.S.C. § 1028(a)(7). She was sentenced to 5 years probation and restitution. 

U. S. v. Benavides-Holguin. Porfirio Benavides-Holguin, a resident of Chihuahua, Mexico, received Title XVI benefits under the 

name and Social Security number of his former brother-in-law, a 

U.S. citizen. He pled guilty to both counts of a 2 count indictment 

alleging violations of 42 U.S.C. § 1383(a)(2). He was sentenced to 10 

months confinement, 3 years of non-reporting supervised release, 

and restitution. 

U. S. v. Green-Jones. Arnetta Green-Jones received SSI benefits 

under her actual Social Security number while working as a seasonal temporary worker employed by the IRS using the Social Security number of another individual. She pled guilty to a violation 

of 42 U.S.C. § 408(a)(7)(B), 42 U.S.C. § 1383a(a)(3)(A) and 18 U.S.C. 

§ 1028(a)(4). She was ordered to serve 5 years probation and pay 

restitution. 

COMMITTEE AMENDMENTS

Amendments to this legislation were adopted both at Subcommittee and full Committee and incorporated into the version of 

the bill the Committee ordered reported. The Subcommittee adopted an amendment to allow the aggravated identity theft penalties 

to be applied to individuals who used fraudulent identities, in addiVerDate May 21 2004 00:28 Jun 09, 2004 Jkt 029006 PO 00000 Frm 00006 Fmt 6659 Sfmt 6601 E:\HR\OC\HR528.XXX HR528
7 

tion to those who used the identities of other persons, to commit 

a terrorist offense. 

The full Committee adopted two amendments. The first amendment added several Social Security fraud crimes and theft or embezzlement by a bank officer or employee to the list of crimes for 

which the enhanced penalties may be applied. Additionally, this 

amendment clarified that a crime prosecuted under 18 U.S.C. § 641 

that involved more than one incident could be aggregated for purposes of determining the penalties. 

Currently there is a split among the Federal district courts as to 

whether 18 U.S.C. § 641 allows such aggregation. In those courts 

which do not allow aggregation, the use of this section has been 

limited to the prosecution of individuals who have fraudulently received public money, property, or records. The most common instance in which this has been a problem is in the improper receipt 

of monthly Federal benefits. Many times the individual monthly 

Federal benefit checks are less than $1,000, the threshold for a felony. This amendment clarifies that 18 U.S.C. § 641 applies and provides for the aggregation of a series of such payments to the individual. 

The first amendment also included a directive to the United 

States Sentencing Commission to require that the Federal Sentencing Guideline § 3B1.3 (Abuse of Position of Trust of Use of Special Skill) be amended to apply to employees or directors who use 

access to information at their place of business to commit identity 

theft or fraud. This amendment will help address the problem of 

insiders who use their employment position to commit fraud or 

help others commit fraud. It will allow judges to apply additional 

penalties to these individuals under the sentencing guidelines. 

The second amendment adopted by the Committee authorized $2 

million per year for 5 years for the Department of Justice to investigate and prosecute identity theft and identity fraud cases. 

Significantly, the Committee rejected amendments which would 

have removed the mandatory consecutive sentences from the bill. 

At the Subcommittee and full Committee mark-ups Crime Subcommittee Chairman Coble noted, ‘‘opponents of mandatory minimums would have a more compelling case if they could assure the 

Congress that the judges were faithfully following the Federal Sentencing Guidelines. And I think, sadly, there’s evidence that doesn’t 

support that.’’

HEARINGS

The Committee on the Judiciary Subcommittee on Crime, Terrorism, and Homeland Security held a hearing on H.R. 1731 and 

H.R. 3693 on March 23, 2004. Testimony was received from four 

witnesses, representing four organizations, with additional material submitted. 

COMMITTEE CONSIDERATION

On March 30, 2004, the Subcommittee on Crime, Terrorism, and 

Homeland Security met in open session and ordered favorably reported the bill H.R. 1731, as amended, by a voice vote, a quorum 

being present. On May 12, 2004, the Committee met in open sesVerDate May 21 2004 00:28 Jun 09, 2004 Jkt 029006 PO 00000 Frm 00007 Fmt 6659 Sfmt 6601 E:\HR\OC\HR528.XXX HR528
8 

sion and ordered favorably reported the bill H.R. 1731 with an 

amendment by voice vote, a quorum being present. 

VOTE OF THE COMMITTEE

In compliance with clause 3(b) of rule XIII of the Rules of the 

House of Representatives, the Committee notes that there were no 

recorded votes during the Committee consideration of H.R. 1731. 

COMMITTEE OVERSIGHT FINDINGS

In compliance with clause 3(c)(1) of rule XIII of the Rules of the 

House of Representatives, the Committee reports that the findings 

and recommendations of the Committee, based on oversight activities under clause 2(b)(1) of rule X of the Rules of the House of Representatives, are incorporated in the descriptive portions of this report. 

NEW BUDGET AUTHORITY AND TAX EXPENDITURES

Pursuant to clause 3(c)(2) of rule XIII of the Rules of the House 

of Representatives is inapplicable because this legislation does not 

provide new budgetary authority or increased tax expenditures. 

CONGRESSIONAL BUDGET OFFICE COST ESTIMATE

In compliance with clause 3(c)(3) of rule XIII of the Rules of the 

House of Representatives, the Committee sets forth, with respect to 

the bill, H.R.1731, the following estimate and comparison prepared 

by the Director of the Congressional Budget Office under section 

402 of the Congressional Budget Act of 1974: 

U.S. CONGRESS, CONGRESSIONAL BUDGET OFFICE, Washington, DC, May 20, 2004. 

Hon. F. JAMES SENSENBRENNER, Jr., Chairman, 

Committee on the Judiciary, 

House of Representatives, Washington, DC. 

DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for H.R. 1731, the ‘‘Identity Theft 

Penalty Enhancement Act.’’

If you wish further details on his estimate, we will be pleased to 

provide them. The CBO staff contact is Lanette J. Walker, who can 

be reached at 226–2860. 

Sincerely, 

DOUGLAS HOLTZ-EAKIN. 

Enclosure 

cc: Honorable John Conyers, Jr. 

Ranking Member 

H.R. 1731—Identity Theft Penalty Enhancement Act. 

H.R. 1731 would authorize the appropriation of $2 million each 

of years 2005 through 2009 for the investigation and prosecution 

of identity theft and related credit card fraud. The estimated budgetary impact of H.R. 1731 is shown in the following table. CBO estimates that implementing H.R. 1731 would cost $10 million over 

9 

the 2005–2009 period, subject to the appropriation of the specified 

amounts. 

By Fiscal Year, in Millions of Dollars 

2005 2006 2007 2008 2009 

CHANGES IN SPENDING SUBJECT TO APPROPRIATION 

Authorization Level 2 2 2 2 2 

Estimated Outlays 2 2 2 2 2 

H.R. 1731 also would create new criminal penalties for knowingly possessing another person’s means of identification and would 

increase the criminal fines for other acts of identity theft. Collections of criminal penalties are recorded in the budget as revenues. 

Under current law, those funds are deposited in the Crime Victims 

Fund and later spent. Therefore, enacting the bill could increase 

revenues and direct spending. CBO expects, however, that any additional revenues and direct spending as a result of enacting this 

bill would not be significant because of the relatively small number 

of cases involved. 

H.R. 1731 contains no intergovernmental or private-sector mandates as defined in the Unfunded Mandates Reform Act and would 

impose no costs on State, local, or tribal governments. 

On February 6, 2003, CBO transmitted a cost estimate for S. 

153, the Identity Theft Penalty Enhancement Act, as reported by 

the Senate Committee on the Judiciary on January 30, 2003. That 

bill did not authorize appropriations for investigation and prosecution of identity theft and other related credit card fraud; our cost 

estimates reflect that difference. 

The CBO staff contact for this estimate is Lanette J. Walker, 

who can be reached at 226–2860. The estimate was approved by 

Peter H. Fontaine, Deputy Assistant Director for Budget Analysis. 

PERFORMANCE GOALS AND OBJECTIVES

The Committee states that pursuant to clause 3(c)(4) of rule XIII 

of the Rules of the House of Representatives, H.R.1731, is intended 

to reduce the incidence of identity theft and fraud and address the 

most serious criminals by providing stronger penalties for those 

who would commit such crimes in furtherance of other more serious crimes. 

CONSTITUTIONAL AUTHORITY STATEMENT

Pursuant to clause 3(d)(1) of rule XIII of the Rules of the House 

of Representatives, the Committee finds the authority for this legislation in article I, section 8, of the Constitution. 

SECTION-BY-SECTION ANALYSIS AND DISCUSSION

Unless otherwise noted, this discussion describes the bill as reported. 

Section 1. Short Title. Table of Contents 

This section provides that this Act may be cited as the ‘‘Identity 

Theft Penalty Enhancement Act.’’

10 

Section 2. Aggravated Identity Theft 

This section amends Title 18 to provide for a mandatory consecutive penalty enhancement of 2 years for any individual who knowingly transfers, possesses, or uses the means of identification of another person in order to commit a serious Federal predicate offense 

(listed in the bill and including immigration violations, false citizenship crimes, firearms offenses, and other serious crimes). This 

2-year penalty enhancement is in addition to any term of imprisonment for the underlying offense. 

This section also amends Title 18 to provide for a mandatory consecutive penalty enhancement of 5 years for any individual who 

knowingly transfers, possesses, or uses the means of identification 

of another person in the commission of any terrorism offense. This 

5 year penalty enhancement is in addition to any term of imprisonment for the underlying offense. 

Additionally, this section contains several provisions to ensure 

the intent of this legislation is carried out. It mandates that the enhancement be imposed as a consecutive sentence and expressly prohibits a judge from ordering the sentence to run concurrently with 

that of the underlying offense. It prohibits the court from sentencing a convicted defendant to probation and from reducing the 

underlying term of imprisonment. It does, however, allow the court 

to impose concurrent sentences for additional violations of this section. 

Section 3. Amendments to Existing Identity Theft Prohibition 

This section amends the existing identity theft laws to clarify 

that possession of the means of identification of another person 

with intent to commit an unlawful act can constitute a crime. This 

section will make it easier for prosecutors to convict identity 

thieves by allowing prosecution for simply possessing false identity 

documents with the intent to commit a crime. 

Currently, § 1028(a)(7) prohibits only the knowing use or transfer, without lawful authority, of another person’s means of identification. This means that § 1028(a)(7) addresses only those situations in which a defendant can be proved to have obtained someone 

else’s means of identification and actually put that means of identification to use, or to have transferred it to another person or location where it can be put to use. In some situations, however, law 

enforcement authorities may apprehend someone who has wrongly 

acquired another’s means of identification, but has not yet put it 

to use or transferred it elsewhere. 

This section amends 18 U.S.C. § 1028(a)(7) to allow prosecution 

of an individual who transfers, uses, or possesses the means of 

identification of another individual ‘‘in connection with’’ a violation 

of Federal law or a state felony law. Currently, section 1028(a)(7) 

requires proof, among other things, that the person engaged in an 

unauthorized use or transfer of another person’s means of identification ‘‘with the intent to commit, or to aid or abet, any unlawful 

activity....’’ Proof of specific intent to commit or aid and abet the 

unlawful activity in question may be less difficult in cases where 

the person engaging in identity theft can be shown to have received 

direct financial benefits through the use of the means of identification. In a number of cases, however, it may be difficult to prove 

that the person who wrongly used or transferred another’s means 

11 

of identification did so with the specific intent to engage in particular crimes such as fraud. 

The addition of the words ‘‘in connection with’’ would broaden the 

reach of section 1028(a)(7) in two important ways. First, it will 

make possible the prosecution of persons who knowingly facilitate 

the operations of an identity-theft ring by stealing, hacking, or otherwise gathering in an unauthorized way other people’s means of 

identification, but who may deny that they had the specific intent 

to engage in a particular fraud scheme. Second, it will provide 

greater flexibility for the prosecution of section 1028(a)(7) offenses. 

With this proposed change, prosecutors would have the option of 

proving that the defendants either had the requisite specific intent 

to commit a particular unlawful activity or engaged in the prohibited use, transfer, or possession of others’ means of identification 

in connection with that unlawful activity. 

Additionally, this section increases the possible penalty for certain identity theft crimes from three to 5 years and clarifies that 

the section allowing for increased penalties for identity theft related to international terrorism can also be applied to acts of domestic terrorism as defined in Title 18. 

Section 4. Aggregation of Value for Purposes of Section 641 

This section clarifies that in a crime prosecuted under 18 U.S.C. 

§ 641 that involves more than one incident, the values of the losses 

can be aggregated for purposes of determining the penalties. It 

amends 18 U.S.C. § 641 to allow for the aggregation of all counts 

for which the defendant is convicted in a single case. 

Currently, there is a split among the Federal district courts as 

to whether 18 U.S.C. § 641 allows such aggregation. In those courts 

which do not allow aggregation, the use of this section has been 

limited to the prosecution of individuals who have fraudulently received public money, property, or records. The most common instance in which this has been a problem is in the improper receipt 

of monthly Federal benefits. Many times the individual monthly 

Federal benefit checks are less than $1,000, the threshold for a felony. This amendment clarifies that 18 U.S.C. § 641 applies and provides for the aggregation of a series of such payments to the individual. 

Section 5. Directive to the United States Sentencing Commission 

This section directs the United States Sentencing Commission to 

require that the Federal Sentencing Guideline § 3B1.3 (Abuse of 

Position of Trust of Use of Special Skill) be amended to apply to 

employees or directors who use access to information at their place 

of business to commit identity theft or fraud. It will help to address 

the problem of insiders who use their employment position to commit fraud or help others commit fraud. It will allow judges to apply 

additional penalties to these individuals under the sentencing 

guidelines. 

Section 6. Authorization of Appropriations 

This section authorizes $2 million per year for 5 years for the Department of Justice to investigate and prosecute identity theft and 

identity fraud cases. 

12 

AGENCY VIEWS


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CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

In compliance with clause 3(e) of rule XIII of the Rules of the 

House of Representatives, changes in existing law made by the bill, 

as reported, are shown as follows (existing law proposed to be omitted is enclosed in black brackets, new matter is printed in italics, 

existing law in which no change is proposed is shown in roman): 

TITLE 18, UNITED STATES CODE 

* * * * * * * 

PART I—CRIMES 

* * * * * * * 

CHAPTER 31—EMBEZZLEMENT AND THEFT 

* * * * * * * 

§ 641. Public money, property or records 

Whoever embezzles, steals, purloins, or knowingly converts to 

his use or the use of another, or without authority, sells, conveys 

or disposes of any record, voucher, money, or thing of value of the 

United States or of any department or agency thereof, or any property made or being made under contract for the United States or 

any department or agency thereof; or 

Whoever receives, conceals, or retains the same with intent to 

convert it to his use or gain, knowing it to have been embezzled, 

stolen, purloined or converted— Shall be fined under this title or imprisoned not more than ten 

years, or both; but if the value of such property in the aggregate, 

combining amounts from all the counts for which the defendant is 

convicted in a single case, does not exceed the sum of $1,000, he 

shall be fined under this title or imprisoned not more than one 

year, or both. 

The word ‘‘value’’ means face, par, or market value, or cost 

price, either wholesale or retail, whichever is greater. 

* * * * * * * 

CHAPTER 47—FRAUD AND FALSE STATEMENTS 

Sec. 

1001. Statements or entries generally. 

* * * * * * * 

1028A. Aggravated identity theft. 

* * * * * * * 

§ 1028. Fraud and related activity in connection with identification documents, authentication features, and 

information 

(a) Whoever, in a circumstance described in subsection (c) of 

this section—

14 

(1) * * * 

* * * * * * * 

(7) knowingly transfers, possesses, or uses, without lawful 

authority, a means of identification of another person with the 

intent to commit, or to aid or abet, or in connection with, any 

unlawful activity that constitutes a violation of Federal law, or 

that constitutes a felony under any applicable State or local 

law; or 

(b) The punishment for an offense under subsection (a) of this 

section is—

(1) except as provided in paragraphs (3) and (4), a fine 

under this title or imprisonment for not more than 15 years, 

or both, if the offense is—

(A) * * * 

* * * * * * * 

(D) an offense under paragraph (7) of such subsection 

that involves the transfer, possession, or use of 1 or more 

means of identification if, as a result of the offense, any individual committing the offense obtains anything of value 

aggregating $1,000 or more during any 1-year period; 

(2) except as provided in paragraphs (3) and (4), a fine 

under this title or imprisonment for not more than øthree¿ 5 

years, or both, if the offense is—

(A) * * * 

* * * * * * * 

(4) a fine under this title or imprisonment for not more 

than 25 years, or both, if the offense is committed to facilitate 

an act of domestic terrorism (as defined under section 2331(5) 

of this title) or an act of international terrorism (as defined in 

section 2331(1) of this title); 

* * * * * * * 

(d) In this section and section 1028A—

(1) * * * 

* * * * * * * 

§ 1028A. Aggravated identity theft 

(a) OFFENSES.—

(1) IN GENERAL.—Whoever, during and in relation to any 

felony violation enumerated in subsection (c), 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. 

(2) TERRORISM OFFENSE.—Whoever, during and in relation 

to any felony violation enumerated in section 2332b(g)(5)(B), 

knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person or a false identification document shall, in addition to the punishment provided 

for such felony, be sentenced to a term of imprisonment of 5 

years. 

(b) CONSECUTIVE SENTENCE.—Notwithstanding any other provision of law—

15 

(1) a court shall not place on probation any person convicted of a violation of this section; 

(2) except as provided in paragraph (4), no term of imprisonment imposed on a person under this section shall run concurrently with any other term of imprisonment imposed on the 

person under any other provision of law, including any term of 

imprisonment imposed for the felony during which the means 

of identification was transferred, possessed, or used; 

(3) in determining any term of imprisonment to be imposed 

for the felony during which the means of identification was 

transferred, possessed, or used, a court shall not in any way reduce the term to be imposed for such crime so as to compensate 

for, or otherwise take into account, any separate term of imprisonment imposed or to be imposed for a violation of this section; 

and 

(4) a term of imprisonment imposed on a person for a violation of this section may, in the discretion of the court, run concurrently, in whole or in part, only with another term of imprisonment that is imposed by the court at the same time on that 

person for an additional violation of this section, provided that 

such discretion shall be exercised in accordance with any applicable guidelines and policy statements issued by the Sentencing 

Commission pursuant to section 994 of title 28. 

(c) DEFINITION.—For purposes of this section, the term ‘‘felony 

violation enumerated in subsection (c)’’ means any offense that is a 

felony violation of—

(1) section 641 (relating to theft of public money, property, 

or rewards), section 656 (relating to theft, embezzlement, or 

misapplication by bank officer or employee), or section 664 (relating to theft from employee benefit plans); 

(2) section 911 (relating to false personation of citizenship); 

(3) section 922(a)(6) (relating to false statements in connection with the acquisition of a firearm); 

(4) any provision contained in this chapter (relating to 

fraud and false statements), other than this section or section 

1028(a)(7); 

(5) any provision contained in chapter 63 (relating to mail, 

bank, and wire fraud); 

(6) any provision contained in chapter 69 (relating to nationality and citizenship); 

(7) any provision contained in chapter 75 (relating to passports and visas); 

(8) section 523 of the Gramm-Leach-Bliley Act (15 U.S.C. 

6823) (relating to obtaining customer information by false pretenses); 

(9) section 243 or 266 of the Immigration and Nationality 

Act (8 U.S.C. 1253 and 1306) (relating to willfully failing to 

leave the United States after deportation and creating a counterfeit alien registration card); 

(10) any provision contained in chapter 8 of title II of the 

Immigration and Nationality Act (8 U.S.C. 1321 et seq.) (relating to various immigration offenses); or 

(11) section 208, 811, 1107(b), 1128B(a), or 1632 of the Social Security Act (42 U.S.C. 408, 1011, 1307(b), 1320a–7b(a), 

16 

and 1383a) (relating to false statements relating to programs 

under the Act). 

* * * * * * * 

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COMMITTEE JURISDICTION LETTERS


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MARKUP TRANSCRIPT

BUSINESS MEETING 

WEDNESDAY, MAY 12, 2004 

HOUSE OF REPRESENTATIVES, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Committee met, pursuant to notice, at 10:00 a.m., in Room 

2141, Rayburn House Office Building, Hon. F. James Sensenbrenner, Jr. [Chairman of the Committee] presiding. 

Chairman SENSENBRENNER. The Committee will be in order. A 

quorum is present. 

The first item on the agenda is H.R. 1731, the ‘‘Identity Theft 

Penalty Enhancement Act.’’ The Chair recognizes the gentleman 

from North Carolina, Mr. Coble, the Chairman of the Subcommittee on Crime, Terrorism, and Homeland Security. 

Mr. COBLE. Mr. Chairman, the Subcommittee on Crime, Terrorism, and Homeland Security reports favorably the bill H.R. 

1731, with a single amendment in the nature of a substitute and 

moves its favorable recommendation to the full House. 

Chairman SENSENBRENNER. Without objection, the bill will be 

considered as read and open for amendment at any point, and the 

Subcommittee amendment in the nature of a substitute, which the 

Members have before them, will be considered as read, considered 

as the original text for purposes of amendment, and open for 

amendment at any point. 

[The Subcommittee Amendment in the Nature of a Substitute 

follows:] 

20 

1

H.L.C.

SUBCOMMITTEE AMENDMENT IN THE NATURE OF

A SUBSTITUTE TO H.R. 1731

[Showing the text as ordered reported by the Subcommittee

on Crime, Terrorism, and Homeland Security on 30 MARCH

2004]

Strike all after the enacting clause and insert the

following:

1 SECTION 1. SHORT TITLE.

2 This Act may be cited as the ‘‘Identity Theft Penalty

3 Enhancement Act’’.

4 SEC. 2. AGGRAVATED IDENTITY THEFT.

5 (a) IN GENERAL.—Chapter 47 of title 18, United

6 States Code, is amended by adding after section 1028, the

7 following:

8 ‘‘§ 1028A. Aggravated identity theft

9 ‘‘(a) OFFENSES.—

10 ‘‘(1) IN GENERAL.—Whoever, during and in re11 lation to any felony violation enumerated in sub12 section (c), knowingly transfers, possesses, or uses,

13 without lawful authority, a means of identification of

14 another person shall, in addition to the punishment

15 provided for such felony, be sentenced to a term of

16 imprisonment of 2 years.


A1731.AAB
21 

2

H.L.C.

1 ‘‘(2) TERRORISM OFFENSE.—Whoever, during

2 and in relation to any felony violation enumerated in

3 section 2332b(g)(5)(B), knowingly transfers, pos4 sesses, or uses, without lawful authority, a means of

5 identification of another person or a false identifica6 tion document shall, in addition to the punishment

7 provided for such felony, be sentenced to a term of

8 imprisonment of 5 years.

9 ‘‘(b) CONSECUTIVE SENTENCE.—Notwithstanding

10 any other provision of law—

11 ‘‘(1) a court shall not place on probation any

12 person convicted of a violation of this section;

13 ‘‘(2) except as provided in paragraph (4), no

14 term of imprisonment imposed on a person under

15 this section shall run concurrently with any other

16 term of imprisonment imposed on the person under

17 any other provision of law, including any term of im18 prisonment imposed for the felony during which the

19 means of identification was transferred, possessed,

20 or used;

21 ‘‘(3) in determining any term of imprisonment

22 to be imposed for the felony during which the means

23 of identification was transferred, possessed, or used,

24 a court shall not in any way reduce the term to be

25 imposed for such crime so as to compensate for, or


A1731.AAC
22 

3

H.L.C.

1 otherwise take into account, any separate term of

2 imprisonment imposed or to be imposed for a viola3 tion of this section; and

4 ‘‘(4) a term of imprisonment imposed on a per5 son for a violation of this section may, in the discre6 tion of the court, run concurrently, in whole or in

7 part, only with another term of imprisonment that

8 is imposed by the court at the same time on that

9 person for an additional violation of this section,

10 provided that such discretion shall be exercised in

11 accordance with any applicable guidelines and policy

12 statements issued by the Sentencing Commission

13 pursuant to section 994 of title 28.

14 ‘‘(c) DEFINITION.—For purposes of this section, the

15 term ‘felony violation enumerated in subsection (c)’ means

16 any offense that is a felony violation of—

17 ‘‘(1) section 664 (relating to theft from em18 ployee benefit plans);

19 ‘‘(2) section 911 (relating to false personation

20 of citizenship);

21 ‘‘(3) section 922(a)(6) (relating to false state22 ments in connection with the acquisition of a fire23 arm);


A1731.AAD
23 

4

H.L.C.

1 ‘‘(4) any provision contained in this chapter (re2 lating to fraud and false statements), other than this

3 section or section 1028(a)(7);

4 ‘‘(5) any provision contained in chapter 63 (re5 lating to mail, bank, and wire fraud);

6 ‘‘(6) any provision contained in chapter 69 (re7 lating to nationality and citizenship);

8 ‘‘(7) any provision contained in chapter 75 (re9 lating to passports and visas);

10 ‘‘(8) section 523 of the Gramm-Leach-Bliley

11 Act (15 U.S.C. 6823) (relating to obtaining cus12 tomer information by false pretenses);

13 ‘‘(9) section 243 or 266 of the Immigration and

14 Nationality Act (8 U.S.C. 1253 and 1306) (relating

15 to willfully failing to leave the United States after

16 deportation and creating a counterfeit alien registra17 tion card);

18 ‘‘(10) any provision contained in chapter 8 of

19 title II of the Immigration and Nationality Act (8

20 U.S.C. 1321 et seq.) (relating to various immigra21 tion offenses); or

22 ‘‘(11) section 208, 1107(b), or 1128B(a) of the

23 Social Security Act (42 U.S.C. 408, 1307(b), and

24 1320a–7b(a)) (relating to false statements relating

25 to programs under the Act).’’.


A1731.AAE
24 

5

H.L.C.

1 (b) AMENDMENT TO CHAPTER ANALYSIS.—The table

2 of sections for chapter 47 of title 18, United States Code,

3 is amended by inserting after the item relating to section

4 1028 the following new item:

‘‘1028A. Aggravated identity theft.’’.

5 (c) APPLICATION OF DEFINITIONS FROM SECTION

6 1028.—Section 1028(d) of title 18, United States Code,

7 is amended by inserting ‘‘and section 1028A’’ after ‘‘In

8 this section’’.

9 SEC. 3. AMENDMENTS TO EXISTING IDENTITY THEFT PRO10 HIBITION.

11 Section 1028 of title 18, United States Code, is

12 amended—

13 (1) in subsection (a)(7)—

14 (A) by striking ‘‘transfers’’ and inserting

15 ‘‘transfers, possesses,’’; and

16 (B) by striking ‘‘abet,’’ and inserting

17 ‘‘abet, or in connection with,’’;

18 (2) in subsection (b)(1)(D), by striking ‘‘trans19 fer’’ and inserting ‘‘transfer, possession,’’;

20 (3) in subsection (b)(2), by striking ‘‘three

21 years’’ and inserting ‘‘5 years’’; and

22 (4) in subsection (b)(4), by inserting after ‘‘fa23 cilitate’’ the following: ‘‘an act of domestic terrorism

24 (as defined under section 2331(5) of this title) or’’.


A1731.AAF
25 

Chairman SENSENBRENNER. The Chair recognizes the gentleman 

from North Carolina, Mr. Coble, to strike the last word and for 5 

minutes. 

Mr. COBLE. I thank the Chairman. 

Mr. Chairman and colleagues, recently the Subcommittee on 

Crime, Terrorism, and Homeland Security conducted a hearing and 

markup on H.R. 1731, the ‘‘Identity Theft Penalty Enhancement 

Act,’’ to examine the growing problem of identity theft. This legislation will establish penalties for aggravated identity theft when the 

theft is related to or in the furtherance of certain other criminal 

acts. Identity theft and identity fraud are terms used to refer to all 

types of crimes in which an individual’s personal or financial data 

is misused, typically for economic gain or to facilitate another 

criminal activity. Identity crime is not directed at one demographic. 

It affects all types of individuals, regardless of age, gender, nationality, or race. 

In 1998, at the direction of Congress, the Federal Trade Commission established a central repository for identity theft complaints. 

In 2002, the FTC received 161,819 victim complaints of compromised personal information. The FTC estimates that the loss to 

businesses and financial institutions due to identity theft to be approximately $47.6 billion. The costs to individual consumers are estimated to be approximately $5 billion. Additionally, victims have 

a difficult time consuming an expensive task of repairing a damaged credit history as well as their respective reputations. 

As identity crime increases, we must find new ways to protect 

consumers from the compromise of their personal information. I believe this legislation is an important step forward in addressing the 

problem. I thank our colleagues on this Subcommittee, Representative Carter, the distinguished gentleman from Texas, and Representative Schiff, the distinguished gentleman from California, for 

having introduced the bill and bringing this important matter to 

our attention. I hope the colleagues—my colleagues can support 

this important bill and with—I ask unanimous consent, Mr. Speaker, to—Mr. Chairman, to include in the record a statement from 

the National President of the Grand Lodge of Fraternal of Police. 

Chairman SENSENBRENNER. Without objection. 

[The information follows:] 

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Mr. COBLE. And I yield back the balance of my time. 

Chairman SENSENBRENNER. The gentleman from Virginia, Mr. 

Scott. 

Mr. SCOTT. Thank you, Mr. Chairman. 

Mr. Chairman, I’m opposed to H.R. 1731, the ‘‘Identity Theft 

Penalty Enhancement Act,’’ because of its mandatory minimum 

sentences which deny probation and concurrent sentences, and by 

doing so, the bill imposes unnecessary and unproductive restrictions on the ability of the Sentencing Commission and judges in individual cases to assure a rational and just system of sentencing 

as a whole and for individuals. 

Congress is not in a better position to determine what the appropriate sentences is in individual cases before the crime occurs than 

a judge is when he has heard the evidence and applies the guidelines established in—established by sentencing professionals. 

Mandatory minimum sentences not only defeat the rational sentencing system that Congress adopted, but make no sense in our 

separation of powers scheme of governance. Moreover, the notion 

that mandating a 2- or 5-year sentence to someone who is willing 

to risk a 15-year sentence already is not likely to add any deterrence. 

Mandatory minimum sentences violate common sense. If the sentence required by the mandatory minimum is the appropriate sentence, then it will—then it can be imposed. On the other hand, 

even if it makes no sense in the particular case, it has to be imposed, anyway. 

Mandatory minimum sentences have been studied extensively 

and have been shown to be ineffective in preventing crime. They 

distort the sentencing process, discriminate against minorities in 

their application, and they waste money. In a study report entitled 

‘‘Mandatory Minimum Drug Sentences: Throwing Away the Key or 

the Taxpayers’ Money,’’ the Rand commission concluded that mandatory minimum sentences were less effective than either normal, 

traditional discretionary sentencing or drug treatment in reducing 

drug-related crime and far more costly than either. And the Judicial Conference of the United States has reiterated its opposition 

to mandatory minimum sentences over a dozen times to Congress, 

noting that they severely distort and damage the Federal sentencing system, undermine the Sentencing Guideline regime established by Congress to promote fairness and proportionality, and destroy honesty in sentencing by encouraging charge, in fact, plea 

bargains. 

The U.S. Sentencing Commission indicated its opposition to the 

sentencing—the U.S. Sentencing Commission indicated its opposition to the Senate bill, which is virtually identical to the bill before 

us for similar reasons. Both the Judicial Center and its study entitled ‘‘General Effects of Mandatory Minimums Prison Terms,’’ a 

longitudinal study of Federal sentences imposed, and the U.S. Sentencing Commission in its report entitled ‘‘Mandatory Minimum 

Penalties in the Federal Criminal Justice System’’ found that minorities are substantially more likely than whites in the comparable situations to receive mandatory minimum sentences. The 

Sentencing Commission study also reflected that mandatory minimum sentences increased the disparity in sentencing for like offenders with no—with no evidence that mandatory minimum senVerDate May 21 2004 00:28 Jun 09, 2004 Jkt 029006 PO 00000 Frm 00027 Fmt 6659 Sfmt 6601 E:\HR\OC\HR528.XXX HR528
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tences had any more crime reduction impact than discretionary 

sentences. That’s why Chief Justice Rehnquist has spoken so often 

and loudly about these wasteful cost increases: ‘‘Mandatory minimums are perhaps a good example the law of unintended consequences.’’ H.R. 1731 does nothing to address the consumer identity theft. 

We have here, Mr. Chairman, a—and I’ll ask unanimous consent 

to have it introduced in the record. 

Chairman SENSENBRENNER. Without objection. 

[The information follows:] 

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Mr. SCOTT. A report on the identity theft case in which Senator Domenici was the victim. It involves about $800 worth of fraudulent credit card purchases, and we’ve checked with the FBI. No action was taken in that case because of resource limitations. If you 

think what we do or don’t do sends a message to criminals, what 

do you think that message is? It is important that we continue— it is that you can continue to scam people, no matter who they are, 

with impunity. This bill does nothing to discourage consumer identity theft, which the FTC reports bilked almost 30 million Americans out of approximately $50 billion over the last 5 years, with 

about $5 billion of that out-of-pocket, unrecovered losses to consumers. 

We had a bill before the consumer—before the Subcommittee, 

H.R. 3693, cosponsored by myself and the rank—and the Chairman, Mr. Coble, and Ranking Member of the full Committee, Mr. 

Conyers, and several others which will provide money for the Department of Justice for consumer identity theft investigation and 

prosecution. I’ll offer an amendment to provide $10 million to DOJ 

to send a message to identity theft—to identity thieves that you 

will be prosecuted because you will be pursued. 

We did this to discourage corporate copyright and trademark infringement. We can do it for consumers. 

Thank you, Mr. Chairman. I yield back the balance of my time. 

Chairman SENSENBRENNER. Without objection, all Members may 

insert opening statements in the record at this point. 

[The prepared statement of Ms. Jackson Lee follows:] 

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Chairman SENSENBRENNER. Are there amendments? And the 

Chair recognizes the gentleman from Texas, Mr. Carter, for an 

amendment. 

Mr. CARTER. Thank you, Mr. Chairman. 

Mr. Chairman, I have an amendment at the desk. 

Chairman SENSENBRENNER. The clerk will report the amendment. 

The CLERK. Amendment to the Subcommittee amendment in the 

nature of a substitute to H.R. 1731, offered by Mr. Carter. Page 3, 

line 17—— Chairman SENSENBRENNER. Without objection, the amendment is 

considered as read. 

[The amendment follows:] 

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49 

Chairman SENSENBRENNER. The gentleman from Texas is recognized for 5 minutes. 

Mr. CARTER. Thank you, Mr. Chairman. 

Mr. Chairman, I’d like to thank you for allowing my legislation, 

H.R. 1731, the ‘‘Identity Theft Penalty Enhancement Act,’’ to be 

considered by the Committee. I would also like to thank my colleague Mr. Schiff for his support as lead cosponsor of this bill. 

Identity theft is a very serious problem. For 4 years in a row, the 

Federal Trade Commission has reported identity theft as the number one consumer-reported complaint filed with the Commission; 

214,905 identity theft complaints were reported in 2003, an increase of 161,836 complaints over the year 2002. 

Just as concerning—just as concerning, the traffic of identity aids 

terrorist crimes. Terrorists can move more freely in the United 

States with illicit IDs, credit cards, and other documentation. Insufficient legislation and prosecution has allowed a situation to 

arise where identities are easy to steal without any fear of reprisal. 

The Identity Theft Penalty Enhancement Act gives prosecutors 

greater power in convincing—in convicting and sentencing an identity thief. First, it creates a new and separate crime—an aggravated identity theft—for any person who uses the identity of another person to commit certain felonies, including terrorist acts. 

Second, if the thief uses a stolen identity in connection with another Federal crime and the intent of the underlying Federal crime 

is proven, the prosecutor need not prove the intent to use the false 

identity in a crime. This lessens the burden on the prosecution, 

making convictions easier. 

Mr. Chairman, my amendment addresses the use of ID theft to 

receive Social Security, Medicare, and other Federal benefits and 

to commit bank theft and embezzlement. My amendment also addresses the prevalent occurrence of insider identity theft. First, my 

amendment adds 18 U.S.D. section 641 and sections 811 and 1632 

to the Social Security Act as felonies that can be considered as aggravated identity theft. These sections would address those individuals who provide another person means of identification in order 

to fraudulent receive Social Security, Medicare, disability, veterans, 

and other Federal benefits. 

Second, my amendment allows for the aggregation of any Social 

Security payments illegally obtained as a result of ID theft. This 

is a particular problem whereas many Social Security monthly payments are under $1,000. Without the ability to aggregate the payments, the enhanced penalties of my legislation would not apply. 

Last, my amendment addresses a prevalent mode of identity 

theft which is committed by insiders of organizations who illegally 

use or transfer individuals’ identity information which has been entrusted to them. A recent report by researchers at Michigan State 

University estimates about half of all identity crimes are the result 

of personal information being stolen from corporate databases. 

While I am sure many companies are doing what they can to stem 

the risk by investing in new data firewall technologies, insider 

theft is an increasing problem which we must protect all consumers 

from. 

Consumers create literally millions of records shopping on the 

Internet and using their credit cards. All of this information is 

stored in databases which thousands of employees can access. It 

50 

takes only a few clicks on a keyboard to steal thousands of identities and send them around the world in seconds on the Internet. 

My amendment directs the U.S. Sentencing Commission to amend 

its guidelines to appropriate punishment ID theft offenses involving an abuse of position. 

I urge my fellow colleagues to favorably support this amendment, 

and I thank you, Mr. Chairman, for bringing this legislation before 

the Committee. I yield back the balance of my time. 

Chairman SENSENBRENNER. The gentleman from Virginia, Mr. 

Scott. 

Mr. SCOTT. Mr. Chairman, to save time, I’d like here to incorporate by reference my comments against mandatory minimums, 

and this is more of the same. And so for the same reasons, I would 

oppose this amendment. 

Chairman SENSENBRENNER. Without objection, the comments are 

incorporated. 

The question is on the adoption of the amendment offered by the 

gentleman from Texas, Mr. Carter. 

Mr. SCHIFF. Mr. Chairman? 

Chairman SENSENBRENNER. The gentleman from California, Mr. 

Schiff. 

Mr. SCHIFF. Move to strike the last word. 

Chairman SENSENBRENNER. The gentleman is recognized for 5 

minutes. 

Mr. SCHIFF. I’d like to thank the distinguished Chairman, Mr. 

Sensenbrenner, for allowing this legislation that I joined Mr. 

Carter in introducing to be before the Committee today. Identity 

theft has topped the list of consumer complaints filed with the FTC 

for the last 4 years in a row, impacting millions of Americans and 

costing consumers and businesses billions of dollars. In fact, the 

home States of several Members of the Committee are at the top 

of the list of identity theft victims in 2003, with Arizona ranking 

one, Texas ranking four, Florida ranking five, and New York ranking six nationally. My own home State of California ranks number 

three in the number of victims of identity theft per capita, with 

over 37,000 complaints reported by consumers costing over $40 million last year. 

Nationally, California cities crowd the top ten list of metropolitan 

areas with the highest per capita rates of identity theft reported. 

L.A.-Long Beach metropolitan area that includes my district is particularly prone to such crimes, ranking number two nationally, 

with over 13,000 victims. 

A victim of identity theft usually spends a year and a half working to restore his or her identity and good name. Many of my constituents and, I know, many of yours have urged Congress to act 

and crack down on this growing epidemic. For that reason, I have 

joined with my colleague Mr. Carter in introducing the Identity 

Theft Penalty Enhancement Act, legislation that will make it easier for prosecutors to target those identity thieves who steal an 

identity for the purpose of committing other serious crimes. The 

bill will stiffen penalties to deter such offenses and strengthen the 

ability of law enforcement to go after identity thieves and prove 

their case. 

I’m very mindful of the reservations that my colleague Mr. Scott 

has expressed about mandatory minimums in general. From my 

51 

point of view, this case made an appropriate exception both because of the epidemic nature of the crime and because of the fact 

that this sentencing enhancement is based on the fact that identity 

theft requires a predicate offense to be an aggravated theft. It has 

to be committed in connection with some other offense. And, generally, for the purposes of sentencing, the predicate, the underlying 

offense, and the identity theft are merged, giving prosecutors little 

incentive to charge identity theft and having little impact on the 

ultimate sentence. And I think this sentencing practice doesn’t reflect the impact on the victims, but more only affects the value of 

the loss of the financial institution. 

This legislation also makes changes to close a number of gaps 

identified in current Federal law. Identical legislation was introduced by Senators Feinstein and Kyl, passing by unanimous consent in the Senate in January of last year. H.R. 1731 has also been 

endorsed by the Justice Department and FTC. 

I was pleased to work with Mr. Carter, as well as the Senate 

sponsors, to make some additional improvements to the bill that 

are offered by Mr. Carter’s amendment. These improvements respond to specific concerns that were raised by the Social Security 

Administration. In addition, they respond to the ever growing problem of insider theft. A peer-reviewed study will be coming out later 

this year that will show that around half of identity theft cases 

that were tracked were facilitated through the workplace. 

In order to protect against homeland security concerns, to protect 

the good credit and reputation of hard-working Americans, the 

time for stronger legislation cracking down on identity theft is now, 

and I want to thank the Chairman again and urge my colleagues 

to support this measure. 

I yield back the balance of my time. 

Mr. SMITH. Mr. Chairman? 

Chairman SENSENBRENNER. The gentleman from Texas, Mr. 

Smith. 

Mr. SMITH. Thank you, Mr. Chairman. 

The amendment in the nature of a substitute offered by my 

Texas colleague, Congressman Carter, deserves our support, Mr. 

Chairman. In 2003, over a million and a half consumers were a victim of fraud and identity theft complaints. The Federal Trade Commission, in fact, indicated that identity theft is one of the fastest 

growing crimes in America. 

Identity theft occurs when an individual’s personal information is 

stolen and then used fraudulently for economic gain. Identity 

thieves easily obtain personal information in numerous ways. They 

can steal documents from the trash, hack into computers to steal 

personal information, or even steal mail. 

Once an identity theft has the personal information of another, 

the possibilities for abuse are endless. Identity thieves often open 

up credit cards or bank accounts in another person’s name, go on 

spending sprees, and leave the victim with damaged credit. Identity theft is a serious crime and should be punished accordingly. 

Mr. Chairman, this amendment enhances the penalties for identity theft and fraud. It ensures that the enhanced provisions are 

actually enforced so that identity thieves cannot get off easily. 

Mr. Chairman, I urge my colleagues to support the amendment 

in the nature of a substitute and yield back the balance of my time. 

52 

Chairman SENSENBRENNER. The question is on the amendment—— Mr. WATT. Mr. Chairman? 

Chairman SENSENBRENNER. The gentleman from North Carolina, 

Mr. Watt. 

Mr. WATT. I move to strike the last word. 

Chairman SENSENBRENNER. The gentleman is recognized for 5 

minutes. 

Mr. WATT. Thank you, Mr. Chairman. 

I certainly don’t question the sincerity of Mr. Carter or Mr. 

Schiff, the introducers of the bill, or this proposed amendment. And 

I don’t question the magnitude of the problem related to identity 

theft. 

The concern I have is that every time we have passed mandatory 

minimum sentences or enhanced mandatory minimum sentences, 

the identical arguments could have been made, were made. There 

was some kind of emergency, there was some kind of exigent circumstances that justified the Judiciary Committee in micromanaging and imposing our judgment to the exclusion of the judgment 

of judges who hear the evidence in these cases. If there are exigent 

circumstances—and certainly the use of identity theft as a means 

for terrorism or as an enhancement to the opportunity for terrorism would be an exigent circumstance—the judge will take that 

into account and exercise discretion to do that. 

The question is whether we ought mandate in every single case 

where there might not be an exigent circumstance or where there 

might be some other circumstances that ought to be taken into account, the use of mandatory minimums. And that’s the problem 

that we have gotten ourselves into and the problem that judges are 

now expressing themselves about, people who administer the jails 

are expressing themselves about. Mandatory minimums are having 

unintended consequences. When they have the intended consequences and punish people, those are the circumstances where 

the court would acknowledge that they should be the intended consequence. The unintended consequences are always coming in circumstances where we have taken discretion away from judges, and 

I think we owe it to ourselves and owe it to our prison systems and 

owe it to our criminal justice system to continue to allow these 

judgments to be more personalized and to force ourselves to—not 

to micromanage everything that’s going on in the world, sitting 

here on these chairs in the Judiciary Committee. 

It is clear every single study that has been done about mandatory minimums confirmed the deleterious effect on the judicial system, on the criminal justice system, and yet every time it seems 

politically expedient and convenient for us to do so, we express ourselves by doing something that we know has been documented to 

be a bad idea. And I think we are doing that yet again today, and 

I encourage us not to do that in this case and to restrain ourselves 

from continuing to try to micromanage the court system in this 

way. 

I yield back. 

Chairman SENSENBRENNER. The question is now—— Mr. DELAHUNT. Mr. Chairman? 

Chairman SENSENBRENNER. The gentleman from Massachusetts, 

Mr. Delahunt. 

53 

Mr. DELAHUNT. I share some of the concerns that were expressed 

by the gentleman from North Carolina, and I’d like to ask my 

friend and colleague, Mr. Schiff, or for that matter Mr. Carter: Has 

it been—has there been a problem with the sentences imposed regarding identity theft that you’ve been able to ascertain? And I 

yield to the gentleman. 

Mr. SCHIFF. I thank the gentleman for yielding. I don’t think the 

sentences have been sufficient to even slow the rate of acceleration 

of identity theft. So they have not had the desired impact, and I 

think part of the problem is that identity theft, as we’ve defined 

it, really requires a predicate offense, that it’s identity theft committed in connection with a subsequent crime, for the purpose of 

facilitating another crime. 

When the Sentencing Commission reviews a situation like that, 

it looks at the underlying conduct to determine the guideline range. 

It doesn’t consider one guideline for this, a second guideline for the 

identity theft, which doesn’t give prosecutors much of an incentive 

to charge identity theft and doesn’t make much of a difference in 

the ultimate sentence or the discharge. 

Mr. DELAHUNT. Reclaiming my time, is there any empirical data 

at all, has there been a study done on this particular issue? If 

you’re aware of any. 

Mr. SCHIFF. You know, there have been studies done in terms of 

the frequency, the amount of time that it takes a victim to clear 

their name. A study that determines the—what role sentencing 

plays in the number of these cases, I don’t think there is any. And 

I’m not sure that would be easily ascertainable. 

Mr. DELAHUNT. Have you had a—have you had an opportunity 

to consult with the Sentencing Commission or anyone regarding 

this particular proposal? 

Mr. SCHIFF. I haven’t consulted with the Sentencing Commission. 

I did meet with the Judicial Conference just this morning, although 

not on this issue per se, but on the issue of mandatory minimums 

and other issues. 

Mr. DELAHUNT. Did this issue come up during that meeting? 

Mr. SCHIFF. No. But, you know, I would say, if I could very briefly, if the gentleman would yield further, I think the issue you raise 

is a very legitimate one. I think we should be very circumspect 

about mandatory minimums. In some cases—and I realize there’s— it requires some restraint by the Committee, but in the case of 

924(c), mandatory minimums for carrying a firearm, in the case 

where we have sort of out-of-control proliferation of a crime, and 

this compressing of the predicate crime and the identity theft, I 

think there are appropriate exceptions from my point of view. I 

think this is one of them. But I certainly understand the other 

point of view. 

Mr. DELAHUNT. Yielding further to the gentleman, why the—

what was the methodology used to ascertain the number of—the 

penalty itself, the 2 years, the 5 years? 

Mr. SCHIFF. Well, this is something that we’ve worked with the 

Senate on to arrive at an adequate deterrent but not an excessive 

deterrent. We don’t want to clog the prisons—— Mr. DELAHUNT. I understand that, but was there any particular 

basis, rationale for the penalty itself? Or was this just done because the Senate indicated they felt it was a good number? 

54 

Mr. SCHIFF. Well, you know, I think it was a common conclusion 

with a number that would provide a sufficient deterrent but not be 

out of proportion to the nature of the crime. 

Mr. DELAHUNT. I yield back. I thank the gentleman. 

Chairman SENSENBRENNER. Does the gentleman from Massachusetts yield back? 

The question, once again, is on adopting the Carter amendment 

to the amendment in the nature of a substitute. Those in favor will 

say aye? Opposed, no? 

The ayes appear to have it. The ayes have it, and the amendment to the amendment is agreed to. 

Are there further amendments? The gentleman from Virginia, 

Mr. Scott. 

Mr. SCOTT. Mr. Chairman, I have an amendment at the desk, 

number 45. 

Chairman SENSENBRENNER. The clerk will report the amendment. 

The CLERK. Amendment to the amendment in the nature of a 

substitute to H.R. 1731, offered by Mr. Scott. Section 4, In addition 

to any other sums authorized to be appropriated for this purpose, 

there is authorized to be appropriated to the Department of Justice, $10 million for the investigation and prosecution of identity 

theft and——

Chairman SENSENBRENNER. Without objection, the amendment is 

considered as read. 

[The amendment follows:] 

Chairman SENSENBRENNER. The gentleman from Virginia is recognized for 5 minutes. 

Mr. SCOTT. Thank you, Mr. Chairman. 

Mr. Chairman, earlier in the discussion, I entered by unanimous 

consent an article involving Senator Domenici. Let me just read 

two or three sentences out of that article. 

‘‘New Mexico Senator Pete Domenici’s credit card bill took a hit 

after he lost his wallet during a visit to Albuquerque last month. 

A spokesman for the well-known Republican said today that two or 

three credit cards were in his wallet. Before Domenici could cancel 

the cards, someone purchased a $500 appliance, charged $300 

worth of groceries, and bought a tank of gasoline.’’

Mr. Chairman, an appliance was probably delivered somewhere, 

but that, in fact, to solve that crime would take investigation and 

resources. At a hearing on the bill, the Department of Justice admitted that they do not have resources for cases like this, and we 

have ascertained from the Department of Justice that, to the best 

of their knowledge, this case has not been investigated. The credit 


A1731B.eps
55 

card companies have decided not to hold the Senator responsible 

for the money charged to his credit cards. 

Mr. Chairman, this bill provides an increase in penalties. It only 

applies to those who have been investigated, arrested, prosecuted, 

convicted, and then kicks in at sentencing. It cannot be effective for 

cases that aren’t even investigated to begin with. This amendment 

will provide resources so that we could begin that process. 

Thank you, Mr. Chairman. I yield back. 

Mr. SCHIFF. Would the gentleman yield? 

Mr. SCOTT. I’m sorry. I yield to the gentleman from California. 

Mr. SCHIFF. I thank the gentleman for yielding. 

Very briefly, Mr. Chairman, I just wanted to add my voice of support for this amendment by Mr. Scott. One approach that we’ve 

taken in the base bill is to augment the penalties as a way of deterring the commission of the crime. But, of course, the penalties are 

only one facet. Having the resources to actually investigate and 

prosecute these cases is another issue. And for that reason, I would 

join in support of the gentleman’s amendment. 

Mr. COBLE. Mr. Chairman? 

Mr. SCOTT. I thank the gentleman, and I yield back. 

Mr. COBLE. Would the gentleman yield to me? 

Mr. SCOTT. I’m sorry. I yield. 

Mr. COBLE. Mr. Chairman, I thank the gentleman for yielding. 

I would urge the Members on the Committee to accept this, but I 

say to the gentleman from Virginia, I think we should include the 

caveat that in the event that the Budget Committee may express 

concerns about the increase in spending, we may have to visit it 

another time. But for the moment, I’d be willing to accept this. 

Mr. SCOTT. Reclaiming my time—Mr. Chairman, reclaiming my 

time, this would be an authorization. If it doesn’t fit in the budget, 

it would not be appropriated. 

Mr. CARTER. Mr. Chairman? 

Chairman SENSENBRENNER. Does the gentleman from Virginia 

yield back? 

Mr. SCOTT. I yield back. Thank you. 

Mr. CARTER. Mr. Chairman? 

Chairman SENSENBRENNER. The gentleman from Texas, Mr. 

Carter. 

Mr. CARTER. Move to strike the last word. 

Chairman SENSENBRENNER. The gentleman is recognized for 5 

minutes. 

Mr. CARTER. And it won’t take 5 minutes. I, too, join in this. I 

think this is a good idea, but subject to the same caveat that the 

Chairman of the Subcommittee talked about, Mr. Coble, subject to 

the Budget Committee. 

I’m always for things that help the prosecutors do their job so we 

can call them on the carpet when they don’t, so I can support this. 

Chairman SENSENBRENNER. Does the gentleman yield back? Does 

the gentleman yield back? 

Mr. CARTER. Yes. 

The question is on the amendment of the gentleman from Virginia, Mr. Scott, to the amendment in the nature of a substitute. 

Those in favor will say aye? Opposed, no? 

The ayes appear to have it. The ayes have it, and the amendment to the amendment is agreed to. 

56 

Are there further amendments? The gentleman from Virginia, 

Mr. Scott. 

Mr. SCOTT. Mr. Chairman, I have an amendment at the desk. 

Chairman SENSENBRENNER. The clerk will report the amendment. 

Mr. SCOTT. Number 42. 

The CLERK. Amendment to the amendment in the nature of a 

substitute to H.R. 1731, offered by Mr. Scott of Virginia. On the 

first page, line 16, strike ‘‘2’’ and insert ‘‘up to 5.’’ Page 2, line 8, 

strike ‘‘5’’ and insert ‘‘up to 10.’’

[The amendment follows:] 

Chairman SENSENBRENNER. The gentleman is recognized for 5 

minutes. 

Mr. SCOTT. Thank you, Mr. Chairman. 

Mr. Chairman, very simply, this amendment increases the total 

time, but eliminates the mandatory minimum nature—or the mandatory time to be given. This means that only in tough cases can 

you be at least—in tough cases, you can be twice as tough as under 

the mandatory sentence in the underlying bill. 

One of the primary difficulties for those who propose mandatory 

sentences to be tough on crime is they impose ceilings on toughness. This means that in the worst cases, the worst offenders are 

required to get less time than they deserve, while lesser offenders 

are required to get more than they deserve. This socks it to the bit 

player while giving the ring leader a huge discount. What sense 

does that make for a tough-on-crime advocate? 

Such a crackdown on lesser offenders while discounting sentences for the hard—for the worst offenders has no place in any rational sentencing scheme. These sentencing schemes are not only 

irrational but also seem to be counterproductive. 

In the 1984 Sentencing Reform Act, which eliminated parole, 

good-time credits, and individualized sentences based on the seriousness of the crime and criminal history and role of offender in 

favor of a one-size-fits-all determinant sentencing. Just before the 

Act took place, we had approximately 25,000 Federal prisoners. 

Today, 20 years later, 177,000 Federal prisoners, a seven-fold increase. The increase of prisoners for the 50 years prior to the mandatory minimums was 4,000 prisoners, despite hippies, marijuana, 


A1731C.eps
57 

LSD, heroin, cocaine, and everything else that happened in the 

1960’s, 1970’s, and 1980’s. 

So what do we think happened to the crime rate after all of this 

new incarceration? The fact is crime has increased significantly 

over the past 20 years and remains high—drug offenses, for example. Prior to mandatory minimum sentences, drug offenders made 

up less than 15 percent of the Federal prison population. Today, 

more than half of the Federal prisoners are there for drug offenses, 

and drugs are more plentiful, more potent, more pure, and cheaper 

than they were before. 

Despite the clear reasons for questioning the effectiveness of 

mandatory minimum sentences and all of the evidence from credible studies, with no credible studies on the contrary, proponents 

put blinders on and continue to pass mandatory minimum sentences. We owe future victims of crime and the taxpayer a better 

rationale for socking it to them than it sounds good and therefore 

it must be good. 

I would hope that we would now consider to show in the face of 

clear evidence of what not to do, at least not do more of it. I would 

hope that we would pass this amendment to allow the application 

of a rational sentencing policy so that the more serious offenders 

will get more time and then less punishment for the lesser offenders. 

Thank you, Mr. Chairman. I yield back. 

Chairman SENSENBRENNER. The gentleman from North Carolina, 

Mr. Coble. 

Mr. COBLE. Mr. Chairman, I will be very brief, but I will have 

to——

Chairman SENSENBRENNER. The gentleman is recognized for 5 

minutes. 

Mr. COBLE.—oppose this amendment. I’m revisiting our markup, 

and I believe it was Mr. Feeney, the distinguished gentleman from 

Florida, I believe was the one who addressed this, and I recall that 

he said that the opponents of mandatory minimum sentences 

would have a more compelling case if they could assure the Congress that the judges were faithfully following the Federal Sentencing Guidelines. And I think, sadly, there’s evidence that doesn’t 

support that. 

I believe I’m correct, I say to my friend from Virginia, I think 

this bill sponsored by Senator Feinstein in the other body, I think 

it passed by unanimous consent, so that’s a pretty good message 

we get from them, which rarely is the case. 

Mr. SCOTT. Would the gentleman yield? 

Mr. COBLE. I’ll yield to my friend. 

Mr. SCOTT. Either that’s a pretty good indication or a pretty bad 

indication. [Laughter.] 

Mr. COBLE. No comment. I thank the gentleman. I yield back my 

time. 

Chairman SENSENBRENNER. The Chair admonishes Members to 

resist temptations to cast aspersions on the other body, even 

though they may be true. [Laughter.] 

The question is on the amendment to the amendment in the nature of a substitute offered by the gentleman from Virginia, Mr. 

Scott. Those in favor will say aye? Opposed, no? 

58 

The noes appear to have it. The noes have it, and the amendment is not agreed to. 

Are there further amendments? The gentleman from Virginia, 

Mr. Scott. 

Mr. SCOTT. Mr. Chairman, I have an amendment at the desk, 

number 43. 

Chairman SENSENBRENNER. The clerk will report the amendment. 

The CLERK. Amendment to the amendment in the nature of a 

substitute to H.R. 1731, offered by Mr. Scott of Virginia. Beginning 

on page 2, strike subsection (b) and redesignate subsections accordingly. 

[The amendment follows:] 

Chairman SENSENBRENNER. The gentleman is recognized for 5 

minutes. 

Mr. SCOTT. Thank you, Mr. Chairman. 

Very simply, this removes the section prohibiting probation and 

concurrent sentence applications. Like mandatory minimums, this 

measure also circumvents the established system of sentencing by 

those in the best position to do so, the Sentencing Commission and 

the judges, and has Congress sentencing everybody on the front 

end without regard to the differences and facts and circumstances 

of the case and the roles and backgrounds of the individual defenders. There is no reason to have this because basically with this provision in here, you essentially have the sentencing done by the 

prosecutor in leveling the charges. Whatever he charges you with 

will be the sentence at the end, and he can decide by adding on 

charges or eliminating charges what the penalty will be. That sentencing decision really ought to be with the judge, with the direction of the Sentencing Commission, and not by the prosecutor. And 

I would hope that the amendment would, therefore, be adopted. 

Chairman SENSENBRENNER. The gentleman from North Carolina, 

Mr. Coble. 

Mr. COBLE. Mr. Chairman, I’ll be brief again. I speak in opposition. The current penalties for identity theft and identity fraud will 

still be available. 

I said the current penalties for identity theft and identity fraud 

will still be available for prosecution of individuals in other less serious cases under 18 U.S.C. 1028. However, this legislation recognizes that the perpetrators of identity theft in certain cases are 

simply stealing another identity with the intent to commit in many 

instances a much more serious crime. The mandatory minimums, 


A1731D.eps
59 

consecutive sentences, and limit on probation are all designed to 

send a message that Congress believes those who steal identities 

to commit further crimes should be dealt with more harshly than 

those who commit a regular identity theft. And I oppose it and 

yield back my time, Mr. Chairman. 

Chairman SENSENBRENNER. The gentleman from New York, Mr. 

Nadler. 

Mr. NADLER. Mr. Chairman, I rise in support of the amendment. 

Chairman SENSENBRENNER. The gentleman is recognized for 5 

minutes. 

Mr. NADLER. Thank you. I won’t spend 5 minutes. 

You know, Mr. Coble says this is intended to send a message 

about the severity of the crime, and crimes may indeed be severe 

and they may deserve severe punishment. But certain discretion 

has to be left to judges because a given crime may have extenuating circumstances; a given crime may not be as severe as a different crime described in the same statutory language; a certain 

crime may be more severe than a different crime described by the 

same statutory language. 

Now, what this language really does without Mr. Scott’s amendment is to shift power from the judge to the prosecutors. We elect 

or appoint judges to exercise judgment. That’s why they’re called 

judges. That’s why we have them. To give the prosecutor the power 

to determine the sentence by his determining the charges, he can 

determine whether to charge four identity thefts or five identity 

thefts. And if you say no concurrent sentences, the same crime 

might have different consequences, very different consequences, determining—he can determine the severity of the charge. He can determine the number of counts of the charge, and that would govern 

the sentence. I think you have to leave some discretion to a judge; 

otherwise, why bother having judges at all. 

So we can express our message and our statutory decision as to 

the severity of a crime by what the sentence—by what the penalty 

for a crime is. But whether sentences are concurrent or are consecutive, whether probation can be imposed, what the circumstances are in a given case, you have to leave that to a judge 

because, otherwise, you impose an inhuman system, and we will all 

find cases where there are inhuman results. We have—and there’s 

no reason and there’s no ability to make the system so specific by 

law as to fit individual cases. 

So I support Mr. Scott’s amendment, and I urge its adoption. 

Mr. SCOTT. Would the gentleman yield? 

Mr. NADLER. Yes, I will yield. 

Mr. SCOTT. I would say to the gentleman that the discussion that 

he just had about the prosecutor actually doing the sentencing occurred in the Enron case when a plea bargain was struck with a 

defendant based on certain charges, and the judge rejected the plea 

bargain. The prosecutor went back, dismissed those cases, indicted—re-indicted the person on other charges for which the 

guidelines produced the desired result, and the person was sentenced under that new indictment. 

That gives the prosecutor the ability, essentially, to beat the sentencing authority, not the judge who ought to have that authority. 

I thank the gentleman for his support. 

60 

Mr. NADLER. I thank the gentleman. I thank him for offering the 

amendment, and I hope the Committee Members will see the wisdom of this amendment, and I yield back. 

Chairman SENSENBRENNER. The question is on the Scott amendment to the amendment in the nature of a substitute. Those in 

favor will say aye? Opposed, no? 

The noes appear to have it. The noes have it; the amendment is 

not agreed to. 

Are there further amendments? If there are no further amendments, without objection, the Subcommittee amendment in the nature of a substitute laid down as the base text as amended is 

adopted. A reporting quorum is present. The question occurs on the 

motion to report the bill H.R. 1731 favorably as amended. Those in 

favor will say aye? Opposed, no? 

The ayes appear to have it. The ayes have it; the motion to report favorably is adopted. 

Without objection, the bill will be reported favorably to the 

House in the form of a single amendment in the nature of a substitute incorporating the amendments adopted here today. Without 

objection, the Chairman is authorized to move to go to conference 

pursuant to House rules. Without objection, the staff is directed to 

make any technical and conforming changes—— Mr. SCOTT. Mr. Chairman? Mr. Chairman, reserving the right to 

object, do we have time to insert other items into the record at this 

point on the bill? 

Chairman SENSENBRENNER. If the gentleman would like to ask 

unanimous consent. 

Mr. SCOTT. I’d ask unanimous consent that a statement from— two statements be entered into the record. 

Chairman SENSENBRENNER. Without objection. 

[The statements follow:] 

61 


Image1.eps
62 


Image2.eps
63 


Image3.eps
64 

Chairman SENSENBRENNER. All Members will be given 2 days, as 

provided by House rules, in which to submit additional, dissenting, 

supplemental, or minority views. 

(65) 

DISSENTING VIEWS

These views are in dissent to the Judiciary Committee Report on 

H.R. 1731, the ‘‘Identity Theft Penalty Enhancement Act.’’

The bill prescribes a mandatory minimum sentence of 2 years’

imprisonment for knowingly transferring, possessing, or using, 

without lawful authority, a means of identification of another person during and in relation to specified felony violations (including 

felonies relating to theft from employee benefit plans, Social Security benefit programs and various fraud and immigration offenses), 

in addition to the sentence for the underlying crime or crimes. It 

also provides for a mandatory minimum sentence of 5 years’ imprisonment for knowingly taking such action during and in relation 

to specified felony violations pertaining to terrorist acts, in addition 

to the punishments provided for such felonies. 

Moreover, the bill prohibits a court from: (1) placing any person 

convicted of such a violation on probation; (2) reducing any sentence for the related felony to take into account the sentence imposed for such a violation; or (3) providing for concurrent terms of 

imprisonment for a violation of this Act and any other violation, except, in the court’s discretion, an additional violation of this section. 

Further, the bill expands the existing identify theft prohibition 

to: (1) cover possession of a means of identification of another with 

intent to commit specified unlawful activity; (2) increase penalties 

for violations; and (3) include acts of domestic terrorism within the 

scope of a prohibition against facilitating an act of international 

terrorism. 

By adding mandatory minimum sentences and denying probation 

and concurrent sentences, the bill imposes unnecessary and unproductive restrictions on the ability of the Sentencing Commission 

and the judges in individual cases to assure a rational and just system of sentencing as a whole and for individuals. Congress is not 

in a better position to determine what the appropriate sentence is 

in individual cases, before the crime occurs, than the judge who has 

heard the case, applying guidelines established by sentencing professionals. Mandatory minimum sentences not only defeat the rational sentencing system that Congress adopted, but make no sense 

in our separation of powers scheme of governance. Moreover, the 

notion that mandating a 2-year or 5-year sentence to someone who 

is willing to risk a 15-year sentence is not likely to add any deterrence. 

Mandatory minimum sentences violate common sense. If the sentence required by the mandatory minimum is the appropriate sentence, it will be the sentence imposed. On the other hand, even if 

it makes no sense in the particular case, it still must be imposed. 

Mandatory minimum sentences have been studied extensively 

and have been shown to be ineffective in preventing crime. They 

66 

distort the sentencing process, discriminate against minorities in 

their application and waste money. In a study report entitled 

‘‘Mandatory Minimum Drug Sentences: Throwing Away the Key or 

the Tax Payers Money?,’’ the Rand Commission concluded that 

mandatory minimum sentences were less effective than either discretionary sentencing or drug treatment in reducing drug related 

crime, and far more costly than either. And the Judicial Conference 

of the U.S. has reiterated its opposition to mandatory minimum 

sentencing schemes over a dozen times to the Congress, noting that 

they ‘‘severely distort and damage the Federal sentencing system, . . . undermine the Sentencing Guideline regimen’’ established by Congress to promote fairness and proportionality, and 

‘‘destroy honesty in sentencing by encouraging charge and fact plea 

bargains.’’ The U.S. Sentencing Commission indicated its opposition to the Senate bill, which is virtually identical to H.R. 1731, for 

similar reasons. 

Both the Judicial Center in its study report entitled ‘‘The General 

Effects of Mandatory Minimum Prison Terms: A longitudinal Study 

of Federal Sentences Imposed,’’ and the United States Sentencing 

Commission in its study report entitled ‘‘Mandatory Minimum Penalties in the Federal Criminal Justice System,’’ found that minorities were substantially more likely than whites under comparable 

circumstances to receive mandatory minimum sentences. The Sentencing Commission study also reflected that mandatory minimum 

sentences increased disparity in sentencing of like offenders, with 

no evidence that mandatory minimum sentencing had anymore 

crime reduction impact than discretionary sentences. Chief Justice 

Rehnquist has spoken often and loudly about these wasteful cost 

increases: 

‘‘Mandatory minimums are perhaps a good example of the law 

of unintended consequences...’’. 

Not only do such sentencing schemes violate common sense, but 

they appear to be counter productive. The 1984 Sentencing Reform 

Act eliminated parole, good time credits and individualized sentences based on the seriousness of the crime and the criminal history and role of the offender in the crime, in favor of one-size-fitsall determinate sentencing. In the two decades since, we have 

passed a slew of harsher and harsher mandatory minimum sentences to add to even more time to sentences. Just before the Act 

took effect, we had approximately 25,000 Federal prisoners. Today, 

20 years later, we have over 177,000 Federal prisoners, a sevenfold increase. Take drug offenses, as an example. Prior mandatory 

minimum sentences, drug offenders made up less than 15 percent 

of the Federal prison population. Today, drug offenders make up 54 

percent of the prison population, and drugs of all types have never 

been more plentiful, more potent or pure, or cheaper. The increase 

in the prison population for the 50 years prior to the Act and mandatory minimum sentences was 4,000 prisoners, despite the 

‘‘Hippie’’, Marihuana, LSD, Heroine and Cocaine binges of the 60’s, 

70’s and 80’s. Yet, the crime rate over the past 20 years, compared 

to the prior 50 years, has increased significantly and remains high. 

Despite these clear reasons for questioning the effectiveness of 

mandatory minimum sentencing, and all the evidence from credible 

67 

studies with no credible studies to the contrary, proponents put on 

blinders and continue to pass mandatory minimum sentences because they sound good. We owe the future victims of crime and the 

taxpayer a better rationale for socking it to them than ‘‘it sounds 

good, so it must be good.’’ During the Committee markup of the 

bill, Subcommittee Ranking Member Scott offered an amendment 

to replace the 2-year and 5-year mandatory minimum sentences 

with 5-year and 10-year maximum sentences, respectively. This 

would mean that on the tough cases, the additional sentence could 

be at least two times tougher than the mandatory sentence. One 

of the primary difficulties for those who propose mandatory sentences as a way to show they are tough on crime is that such sentences impose ceilings, as well as floors, on toughness. The impact 

of this is that the worse offenders are required to get LESS time 

than they deserve, while the lesser offenders are required to get 

MORE time than they deserve. This socks it to the bit player while 

giving the ringleader a huge sentencing discount. What sense does 

that make for a tough on crime advocate, or anybody else? Such a 

crack down on lesser offenders while discounting sentences for hard 

worse offenders has no place in any rational sentencing scheme. 

Identity theft is a huge problem in this country. The FTC reports 

that identity thieves bilked almost 30 million Americans out of approximately $50billion dollars over the past 5 years, with about $5 

billion of that out-of-pocket and unrecovered losses to the victims. 

During the markup, Ranking Member Scott introduced an article 

on an identity theft case in which U.S. Senator Pete Domenici was 

the victim. The case involved about $800 worth of fraudulent credit 

card purchases. Yet, the FBI reported that no action is being taken 

on this case because of resource limitations. If what the Congress 

does or doesn’t do sends any message to criminals, the message 

this sends is that criminals can continue to scam people, no matter 

who they are, with impunity. A bill before the Subcommittee, H.R. 

3693, sponsored by Ranking Member Scott, Chairman Coble, Ranking Member Conyers and nine other members, which would provide 

$100 million to the Department of Justice for consumer identity 

theft investigation and prosecution, was not scheduled for markup. 

68 

However, while much of the bill does little, if anything, to address consumer identity theft, the Committee did adopt an amendment offered by Ranking Member Scott which would provide $10 

million to the Department of Justice, $2 million over each of the 

next five fiscal years, to investigate and prosecute consumer identity theft. While this does not overcome the counterproductive impact of the mandatory minimum sentences in the bill, the $10 million would at least let identity thieves know they can no longer assume impunity. 

JOHN CONYERS, JR. 

JERROLD NADLER. 

ROBERT C. SCOTT. 

MELVIN L. WATT. 

SHEILA JACKSON LEE. 

MAXINE WATERS. 

WILLIAM D. DELAHUNT. 

TAMMY BALDWIN. 

Æ