High Tech and Nov ember 2 0 0 1 Investment Fraud Volume 49 Num ber 6 In This Issue United States Department of Justice Executive Office for United States Attorneys Office of Legal Education Washingt on, DC In Honor 20535 Kenneth L. Wainstein Director This issue of the United States Attorneys' Bulletin is Contributors’ opinions and dedicated to Michael C. Messer, a senior attorney at the statements should not be considered an endorsement Social Security Administration (SSA). Mr. Messer was by EOUSA for any policy, program, or service appointed a Special Assistant United States Attorney for the Northern District of Illinois on October 10, 2000 The United St ates At torney s’ Bulletin is published pursuant as part of SSA's Anti-Fraud Pilot Project, and was to 28 CFR § 0.2 2(b) detailed to the Criminal Division of the Chicago The United St ates At torney s’ Bulletin is published bi- United States Attorney's Office (USAO). On August 20, monthly by the Executive 2001, while attending a training conference at the Off ice fo r Unit ed Stat es At torn eys, Of fic e of Legal National Advocacy Center (NAC), he was shot and Education, 1620 Pendleton Street, Columbia, South killed in an attempted armed robbery while walking Carolina 2 920 1. Perio dical postage paid at Washington, back to the NAC after dinner. Mike was a wonderful D.C. Postmaster: Send attorney and colleague who served his agency, the USAO , and his community address changes to Editor, United St ates At torney s’ with dedication and distinction. He is survived by his wife Susan, and their three Bulleti n, Of fic e of Legal Education, 1620 Pendleton children, Elizabeth, Zachary, and Joshua. Street, Columbia, South Carolina 29201 Prosecuting Social Security Fraud: Protecting the Trust Fund for Present and Managing Editor Jim Do novan Future Generations ..................................... 1 By John K. Webb Assistant Editor Nancy Bow man The M ail and Wire Fraud Statutes ........................... 6 Law Clerk Brian Burke By Michael L. Levy Intern et A ddress ww w.usdoj.gov/usao/ Identity Theft ........................................ 23 eousa/foia/foiamanuals.html By Beth Moskow -Schnoll Send article submissions to Managin g Editor , Unit ed Prosecuting Offenses Under the Access Device Statute States Attorneys’ Bulletin, National Advocacy Center (18 U.S.C. § 102 9) .................................... 30 Office of Legal Education By Jonathan J. Rusch 162 0 Pendlet on Str eet Columbia, SC 29201 Investigating and Prosecuting Nigerian Fraud ................... 39 By Jim Buchanan and Alex J. Grant Civil and Criminal Remedies for Immigration Related Document Fraud .. 48 By Jack Perkins Know the Professional Responsibility Issues that You May Confront ... 50 By Claudia J. Flynn and Joan L. Goldfrank Prosecuting Social Security Fraud: Protecting the Trust Fund for Present and Future Generations John K. Webb with an agent bearing a prosecution report Special Assistant United States Attorney describing Social Security fraud? The answer, District of Arizona and Central District of most likely, is fear of the unknown. The sheer California number of benefits programs offered by SSA is enough to discourage some prosecutors, who fear Introduction a protracted learning curve just to get up to speed on Social Security laws. This fear of the unknown When I first arrived in the United States is misplaced, however, because most Social Attorney’s Office in Portland, Oregon in 1997, as Security fraud cases can be prosecuted using a Special Assistant United States Attorney on loan familiar federal crim inal law statutes found in from the Social Security Adm inistration (SSA), Title 18, without relying on the two Social my new best friend (AUSA) in the office Security felony fraud statutes found in Title 42. graciously offered to hand over his Social Security cases to help me get started. I don’t recall This article strives to demystify the his exact words, but the phrase "dog cases" comes misconceptions about the viability of prosecution to mind. He told me repeatedly that prosecuting of Social Security fraud cases, and discusses the elderly individuals with limited resources simply application of the Social Security felony fraud had no jury appeal. statutes as prosecution tools. The article also identifies additional federal statutes that the Even though the AUSA enjoyed watching a government has traditionally used to prosecute rookie stumble about, he was a patient and fraud against SSA programs. Specifically, Section thorough mentor. He enjoys reminiscing about I explains why Social Security is frequently how green I was and how he saved m y career. I targeted for fraudulent conduct. Next, Section II draw pleasure in reminding him just how wrong provides an overview of the Social Security he was about the jury appeal of Social Security felony fraud statutes and their elements. Finally, fraud cases. My experience is that Social Security Section III explains the relationship between the fraud cases have immediate appeal to both a SSA felony fraud statutes and various other Grand Jury and a trial jury due to immediate name federal criminal statutes found in Title 18 of the recognition. The Social Security nameplate has United States Code. distinctive brand appeal – like an Intel processor, IBM computer, or RCA television. Can you name I. Impact of fraud on Social Security programs an American who isn’t aware what Social Security Social Security benefits are essential to the means to his or her future? Can you name a economic well-being of millions of Americans. politician who hasn’t uttered the sacred words The proof is in the numbers. SSA reported that “Social Security – protect - future”? Two words about 152,000,000 people worked and contributed best describe my own experiences with the jury to the SSA trust funds in employment or self- appeal of Social Security fraud cases: “thief employment covered by Social Security programs. beware.” I have yet to meet a Grand Jury or trial See SSA 2001 OASDI Trustees Report. According jury that has exhibited any tolerance for any to the Trustees’ Report, these cash benefits Social Security offender, regardless of age, comprise over 4% of the nation’s gross dom estic gender, or disability. product. Benefits are paid to about 90% of So, why are so many of our colleagues American citizens aged 65 or older, and serve as afflicted with prosecutorial reticence when faced NOVEMBER 2001 UNITED STATES ATTORNEYS' BULLET IN 1 the major source of income for 64% of Social Security Act’s primary criminal provisions. The Security beneficiaries. statute is comprehensive, carefully spelling out restraints on fraud by specifying requirements for Because of the sheer numbers of claimants disclosure of specific events, and identifying facts seeking benefits from one or m ore SSA benefits that affect the right to payment of SSA benefits. programs, some fraud in the system is unavoidable. Moreover, the opportunity for fraud The statute is broadly written, and is is enhanced because SSA is an agency that has, paraphrased as follows: historically, made extraordinary efforts to ensure Section 408. that its programs are prom ptly available to qualified Americans. SSA serves as a lifeline to Whoever . many needy Americans who would be unable to (2) makes or causes to be made any false survive without payments from one or more statement or representation of a material fact benefits programs. It is not surprising, then, that in in any application for any payment or for a recent years, Social Security fraud has disability determination . or increasingly attracted national attention. In fiscal year 2001, the Office of the Inspector General (3) at any time makes or causes to be made (OIG) for the Social Security Administration any false statement or representation of a opened over nine thousand potential fraud cases material fact for use in determining rights to nationwide. If current trends continue, hundreds payment . or of these cases will ultimately result in federal (4) having knowledge of the occurrence of and/or state convictions for disability fraud, any event affecting (i) his initial or continued retirement fraud, theft of government property, right to any payment . or (ii) the initial or and/or Social Security num ber misuse. continued right to any payment of any other II. Statutory framework: the Social Security individual in whose behalf he has applied for fraud statutes or is receiving such paym ent . conceals or fails to disclose such event with an intent One who wrongfully applies for and/or fraudulently to secure payment either in a receives benefits payments under one of the greater amount than is due or when no programs administered by SSA m ay be subject to payment is authorized, or criminal liability under either 42 U.S.C. § 408(a), or 42 U.S.C. § 1383a, of the United States Code. (5) having made application to receive The Social Security felony fraud statutes can be payment . for the use and benefit of used separately, or in concert, with general another, and having received such a paym ent, Federal crim inal statutes found in Title 18, to know ingly and willfully converts such a prosecute fraud in benefits programs. Neither payment, or any part thereof to a use other Title 18 nor Title 42 provides the exclusive than for the use and benefit of such other criminal remedy for prosecution of Social person,. or Security fraud. Indeed, in some instances, Title 18 (6) willfully, knowingly, and with intent to may provide a more suitable remedy for deceive . [SSA] as to his true identity (or prosecution. the identity of another person), furnishes or A. 42 U.S.C. § 408(a) – A Felony Provision cause to be furnished, false information to Aimed at Title II Program Fraud, Disability [SSA with respect to earnings information].