Identity Theft Statutory Restitution Award Survives Procedural Due Process and Statutory Interpretation Challenge

State v. Moua, Minn.Ct.App., 1/25/2016, petition for further review denied (4/19/2016).  Time was, crooks stole a credit card, check, what have you, and ran as quickly as possible to the nearest Daytons to ring up as many purchases as the store would allow. Fast forward to today and now crooks steal a credit card, check, what have you, in order to manufacture a "clean" form of payment.  So, the legislature enacted a statute that said that one who steals another's "identity" with the intent to commit a crime owes each "direct victim" a thousand bucks.  No questions asked, just pony up.

Mr. Moua had four hundred plus "identities" in his car when the cops stopped him.  He pled guilty to one count of identity theft and then challenged the statutory restitution on substantive and procedural due process grounds.  The trial court eventually awarded restitution to the fourteen individuals who had incurred economic loss and to one person who had spent over one hundred hours attempting to clear his or her name.  The trial court declined to award restitution to those individuals who were likely to suffer some form of inconvenience due to the identity theft but did not experience economic loss.

The court of appeals rejected the procedural due process challenge, saying, look, Mr. Moua had notice and multiple opportunities to challenge the restitution award.  Because Mr. Moua abandoned his substantive due process claim on appeal the court didn't address it except to say that it seemed the better of the two due process arguments.

Mr. Moua's other argument was that economic loss had to be shown to prove the statute's requirement of "loss or harm."  The court of appeals also rejected this argument.  "Loss" and "harm" have to mean different things or one of the words was superfluous. The statute, itself, defines "loss" in economic terms:  "value obtained ... and expenses incurred by a direct or indirect victim." Minn. Stat. 609.527, subd. 1(f).  There is no definition of "harm". In the era of "law by dictionary" the court pulled out this week's favorite dictionary to find "loss" defined as "physical or psychological damage" or "immoral or unjust effects."  That definition is not limited just to economic loss.  So:

In sum, we hold that when a defendant possesses an individual’s name and private identifying information with the intent to commit a crime, the individual has incurred loss or harm and is thus entitled to $1,000 minimum restitution under the identity-theft statute.

The court does not sanction awarding the statutory restitution to individuals who only had "junk mail"  stolen which contained only publicly available information like names and addresses because that information on its own would be of little use to an identify thief.