Massachusetts Criminal Lawyer Blog
GB, a 25 year old immigrant from Nigeria, got involved in a scheme to defraud. Women in Texas were contacted online by a man (AB). The man romanced the women online and proposed to them and told them he needed them to wire money into a bank account of another man (CD – a fake name) so that the money could be used to buy a house for AB and the women to move into once they were married. Unbelievably the women bought into the scheme and wired the money into a bank account. AB had given the women the necessary information for them to wire the money to the specific bank account. GB, working with AB, had opened an account at a bank in Lawrence. To open the bank account GB had obtained a fake Zimbabwe driver’s license and a fake Zimbabwe passport in the made up name (CD). The account was opened in the fake name (CD). The women would wire the money into the account and then GB would withdraw it. The scheme netted over $40,000.00. Eventually bank security flagged the account and GB was contacted by the police. Bank personnel recognized GB because he had his own account in his own name at the bank and when he came in to make a withdrawal posing as CD the scheme unraveled. The police were called in. GB was questioned by the police in the police station. The police recorded the interview after GB signed a consent to have the interview recorded. During the police interview the police realized that GB was himself also recording the interview on his cell phone. GB had not disclosed the fact that he was recording. The police charged GB with Identity Fraud and Secretly Recording an Oral Communication.
GB retained Attorney Robert Lewin of North Andover to defend GB against the charges. The Massachusetts Identity Theft statute makes it a crime “to pose as another person” and use the identifying information of “another person“. GB had used the identifying information of a fictitious person and posed as a fictitious person. The legal question that was raised in this case was whether it is a violation of the Massachusetts Identity Theft statute to pose as a fictitious person or does the language “another person” mean another real person. There were no decisions is Massachusetts addressing this question.
Attorney Lewin did extensive research on this question. Several State Courts that have addressed this question have concluded that the phrase “another person” includes real and fictitious persons. The majority of the courts that have addressed this question, however, have concluded that the phrase “another person” requires proof that the identity of another real person was used. Attorney Lewin prepared a Motion to Dismiss the charge along with a lengthy and comprehensive legal brief arguing that the Massachusetts Law requires proof that the identity of another real person was used. The Motion to Dismiss was set down for hearing on June 1, 2017 in Lawrence District Court. When it came time to argue the Motion the District Attorney conceded that Attorney Lewin’s argument was correct on the law and the DA agreed to the identity fraud charge being dismissed. Attorney Lewin then turned to the Judge and told the Judge that the remaining charge (Violation of the Wiretap Law by secretly recording a conversation) was foolish in light of the fact that the police themselves were recording the conversation with GB in the police station. Attorney Lewin argued that the police suffered no harm in GB’s making a recording of the same meeting that the police were recording. The Judge agreed and ordered that charge dismissed as well.