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Wednesday, May 19, 2010

Improbable Argument Lifts Katrina Scammer's Identity Theft Conviction

by Thomas O'Toole

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 Don't tell my boss, but I just spent the last 30 minutes reading about social security numbers. It was fascinating.

Do you know that the Social Security Administration has issued over 420 million different social security numbers?

Do you know that by using the SSA's nine-digit format (XXX-XX-XXXX), it is mathematically possible to create over one billion different social security numbers? However, because the SSA has administratively decided that some combinations will not be made available, the actual number of possible social security numbers is 980 million.

Do you know that the first three digits in a social security number are "area codes" that correlate to geographic regions?

I didn't know any of this before today. But I bet I would have if I was in the identity theft business.

With this data in mind, I ask you: What are the odds that a person can guess a combination of numbers that would yield a valid social security number? Given that there are 980 million possible nine-digit combinations, and 420 million valid social security numbers, the odds would be about 50 percent. In other words, if a person attempted to create a valid social security number out of thin air, the way he might guess at a lottery number, that effort would yield a valid social security number about half the time.

Now what are the odds that a person can guess a valid social security number not once, but 15 times in a row? The answer looks something like this:

0.5 * 0.5 * 0.5 * 0.5 * 0.5 * 0.5 * 0.5 * 0.5 * 0.5 * 0.5 * 0.5 * 0.5 * 0.5 * 0.5 * 0.5 = .0003

Put another way, there is a 99.997 percent chance that mere guesswork could not produce 15 valid social security numbers. Not very good odds.

The foregoing bit of mathematics was the basis of the federal government's argument that Gregory Parks must have known -- beyond a reasonable doubt -- that the 15 different social security numbers he supplied on 15 different fraudulent applications for emergency disaster relief funds did in fact belong to other persons.

The government charged Parks with aggravated identity theft under 18 U.S.C. 1028A(a)(1). That statute creates a federal crime when a person "knowingly ... uses, without lawful authority, a means of identification of another person." After the U.S. Supreme Court's decision in Flores-Figueroa v. United States, No. 08-108 (2009), the government must prove that the defendant knew that the means of identification used in the alleged crime belonged to another person.

Proving a defendant's mental state is not easy. Flores-Figueroa saddled prosecutors with a very high burden of proof, and I wouldn't be surprised if the government asks Congress to take another look at this statute.

Parks was convicted of identity theft before Flores-Figueroa was decided. He raised the decision in a later, collateral attack on his conviction. The government, which at the time of the original trial did not have to prove that Parks knew he was using social security numbers that belonged to another individual, was forced to resort to a mathematics-based argument to preserve the conviction in the face of Parks' Flores-Figueroa challenge.

But the government's mathematics-based evidence of Parks' mental state fell short. The government's contention that Parks just had to have known that the social security numbers belonged to other persons turned out to be a losing position.

Because, as it turned out, Parks had some additional information, and some different numbers, on his side.

The first three digits of a social security number are known as "area numbers." These numbers correlate to states. All of the numbers Parks used had Texas or Louisiana area numbers. Except for two: one had an Oklahoma area number and the other a Michigan area number. Area numbers are published on the SSA website.

The SSA also publishes on its website information indicating the extent to which the second pair of digits in a social security number -- the "group number" -- have been assigned. In Parks' case, this information indicated that, for the 13 social security numbers he used in the Texas and Louisiana area codes, the two-digit "group number" was 99, meaning that nearly all of those numbers had been assigned. Louisiana and Texas were the areas hardest hit by Hurricane Katrina.

The group numbers for the two other area numbers used by Parks indicated that the social security numbers for those areas were not assigned to such an extent. For area number 446 (Oklahoma), the group number was 19 (out of a possible 99); for area number 372 (Michigan), the group number was 31 (again, out of 99).

All of this extra information dramatically increased Parks' odds of randomly guessing valid social security numbers. According to the court, the new math looked like this:

1 * 1 * 1 * 1 * 1 * 1 * 1 * 1 * 1 * 1 * 1 * 1 * 1 * 0.59 * 0.65 = .38


Thus, with a little knowledge about how the SSA doles out social security numbers, Parks had a 38 percent chance of correctly guessing 15 valid social security numbers.

According to the court's math. And that was the math that counted here. The court ruled that the high odds of making 15 educated guesses about social security numbers was sufficient to vacate Parks' conviction:

A reasonable juror could not find beyond a reasonable that Parks knew he was using actual social security numbers when, by picking the area numbers he did, Parks would have had nearly even odds of choosing fifteen actual social security numbers.

It is difficult for me to understand why Congress wrote the statute the way it did. Certainly Parks knew that the 15 different social security numbers he used to defraud the government did not belong to him. Wouldn't it have been simpler to write the statute to forbid persons from using means of identification that do not belong to them? There must be a good explanation why the statute was not written in this way. But I cannot think of it.

Parks didn't get off cleanly, however. He was also convicted of mail fraud.

The case is United States v. Parks, No. 06-cr-226 (S.D. Texas May 17, 2010).
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