Instruction 8.440, Criminal Model Jury Instructions for Use in the District Court

IDENTITY FRAUD BY OBTAINING PERSONAL IDENTIFYING

INFORMATION

G.L. c. 266, § 37E(c)

The defendant is charged with identity fraud by obtaining

another person’s personal identifying information without

authorization. To prove the defendant guilty of this offense, the

Commonwealth must prove five things beyond a reasonable doubt:

First: That the defendant obtained personal identifying

information about another person;

Second: That the defendant did so without the express

authorization of that person;

Third: That the defendant did so with the intent to (pose as that

person) (or) (assist someone else to pose as that person);

Fourth: That the defendant did so [to obtain (money) (credit)

(goods) (services) (a thing of value) (an identification card) (or)

(evidence of that person’s identity)] (or) [to harass another person];

and

Fifth: That the defendant did so with the intent to defraud.

To prove the first element, the Commonwealth must prove the

defendant obtained personal identifying information about another

person. “Personal identifying information” is any name or number

that can be used, alone or along with any other information, to

assume another person’s identity. This includes, but is not limited

to, a name, address, telephone number, driver’s license number,

social security number, place of employment, employee identification

number, mother’s maiden name, demand deposit account number,

savings account number, credit card number, or computer password

identification.

To prove the second element, the Commonwealth must prove

that the defendant obtained personal identifying information about

another person without having obtained express permission from the

other person.

To prove the third element, the Commonwealth must prove that

the defendant obtained the information with the intent to (pose as that

person) (or) (assist someone else to pose as that person).

Here the jury may be instructed as follows or alternatively on Intent (Instruction 3.120).

Obviously, it is impossible to look directly into a person’s mind.

But in our everyday affairs we often decide from the actions of others

what their state of mind is. You may examine the evidence in the

case, all the surrounding circumstances, and any reasonable

inferences you draw from that evidence to help you determine what

their intent was at the time in question.

To prove the fourth element, the Commonwealth must prove that

the defendant obtained the personal identifying information [to get

(money) (credit) (goods) (services) (a thing of value) (an identification

card) (or) (evidence of that person’s identity)] (or) [to harass another

person].

While the statute identifies specific types of data that would fall within the definition of

“personal identifying information” (specifically name, address, telephone number, driver’s

license number, social security number, place of employment, employee identification

number, mother’s maiden name, demand deposit account number, savings account

number, credit card number, and computer password identification), the statute does not

indicate that they are exclusive. G.L. c. 266, § 37E(a).

Supplemental Instruction: Definition of “harassment.” To harass an

individual, the Commonwealth must prove that the

defendant willfully and maliciously intended to engage in

an act directed at a specific person (persons), which would

seriously alarm or annoy that person (persons) and would

cause a reasonable person to suffer substantial emotional

distress. An act is “willful” if it is done intentionally and

by design, and not out of mistake or accident. The

defendant acted willfully if the defendant intended the

conduct. An act is done with “malice” if it is intentional

and without justification or mitigation, and any reasonably

prudent person would have foreseen the actual harm that

resulted to [the alleged victim].

The malice requirement in the criminal harassment statute (G.L. c. 265, §43A) does not

require a showing of cruelty, hostility, or revenge, nor does it require an actual intent to

cause the required harm, but merely that the conduct be “intentional and without

justification or mitigation, and any reasonable prudent person would have foreseen the

actual harm that resulted.” Commonwealth v. Ecker, 92 Mass. App. Ct. 216, 221 (2017),

quoting Commonwealth v. O’Neil, 67 Mass. App. Ct. 284, 293 (2006).

To prove the fifth element, the Commonwealth must prove that

the defendant obtained the information with the intent to defraud. To

act with an intent to defraud means to act knowingly with the aim of

deceiving or cheating another. The purpose is often to bring about

gain or benefit either for oneself or for another person or entity.

See United States v Phath, 144 F.3d 146, 149 (1st Cir. 1998); United States v. Leahy,

445 F.3d 634, 644 (3d Cir. 2006), abrogated on other grounds by Loughrin v. United

States, 573 U.S. 351 (2014).

You may examine the evidence in the case, all the surrounding

circumstances, and any reasonable inferences you draw from that

evidence, to help you determine whether the defendant had an intent

to defraud. The Commonwealth does not need to prove the identity

of the person whom the defendant intended to defraud, but the

Commonwealth must prove that the defendant intended to defraud

someone.

See Commonwealth v. O’Connell, 438 Mass. 658, 664 (2003) (Commonwealth need not

show intent to defraud a particular person, but sufficient that defendant “intended to injure

or defraud someone”; proof of intent to defraud may be inferred from the circumstances);

Commonwealth v. Analetto, 326 Mass. 115, 118 (1950) (“Nor is it necessary to show that

any person actually was defrauded.”).

If the Commonwealth has proven all five elements beyond a

reasonable doubt, you should return a verdict of guilty. If the

Commonwealth has failed to prove one or more of the elements

beyond a reasonable doubt, you must find the defendant not guilty.