WASHINGTON — The Department of Justice, working with federal courts and U.S. attorney offices, is trying to identify an unknown number of criminal defendants incorrectly convicted and sentenced under the felony provisions of a federal identification fraud statute instead of its misdemeanor provisions.

At the end of last year, Kenneth Melson, director of the Executive Office for U.S. Attorneys, notified the Administrative Office of the U.S. Courts (AO) that some defendants who have been convicted of possessing false, stolen, or unlawfully produced identification documents, in violation of 18 U.S.C. 1028(a)(4) or (6) of the identification document fraud statute, may have been incorrectly sentenced under that statute’s felony penalty provisions, instead of the misdemeanor penalty provisions.

In his memo to AO Director James Duff, Melson explained that some U.S. attorneys’ offices erroneously cited the felony penalty provisions in their indictments or plea agreements.

Longer terms?

As a result, some defendants may have been sentenced to longer terms of imprisonment than they would have been subject to under the misdemeanor penalty provision. In addition, the incorrect characterization of some offenses as felonies may have resulted in improper convictions for aggravated identity theft under 18 U.S.C. 1028A(a).

The problem was revealed by a U.S. attorney’s office examining potential charges in a new case, according to Ian McCaleb, senior public affairs specialist for the department’s Criminal Division.

The department determined that two provisions in the law providing for increased penalties when the offense is the production, transfer or use of false, stolen or unlawfully produced identification documents do not apply to two other provisions of the act that criminalize the possession of false, stolen or unlawfully produced identification documents.

Some prosecutors had believed the increased penalties applied to possession offenses when the government proved production, transfer or use. Melson said that U.S. attorneys’ offices were instructed to stop immediately applying the enhanced penalty provisions to violations of the possession provisions and to notify all courts and defense counsel in all pending cases where the enhancement has been used.

In cases in which judgment has become final, the department instructed U.S. attorneys to try to identify all defendants who may have received improper sentences or felony designations and are currently incarcerated, on probation, or on supervised release.

The Executive Office has been working with the Bureau of Prisons, the AO and the U.S. Sentencing Commission, to find ways to identify adversely affected defendants, according to McCaleb.

Letters were to be sent to district courts and federal public defenders about the issue. Individual notices were to be sent to defendants who may have been affected, or their counsel. The Executive Office also sent case, sentencing and incarceration data to each district to assist the district in identifying cases which may have involved improper sentences.

McCaleb said the department’s Office of Professional Responsibility is working with districts to ensure that all assistant U.S. attorneys comply with state bar association ethics requirements implicated by the issue. Of the 94 U.S. attorneys’ offices, he added, the Executive Office is aware that motions for relief have been filed by defendants in nine districts. A total of 39 defendants have filed motions. In one additional district, a court has entered orders on its own initiative in three cases. Seven additional districts have sent notices to affected defendants, but no motions have been filed.

As of April 3, McCaleb said, 35 U.S. attorney offices have reported that no improper sentences were imposed in their districts. The remaining offices are continuing to review their files.

In 2000, U.S. attorneys filed 775 cases under the identification document fraud statute — more than double the number a decade earlier.