asked 3 months ago

Author: Ben

I was wondering if anyone with sufficient professional legal experience would be so kind as to answer three (3) very quick questions please:

My nephew was arrested for identity theft in Phoenix, Az, back in 2008. Without a lengthy history I will just provide a very brief insight as to what transpired as I know it.
Two brothers immigrated to the US back in the late 80’s to live with my older brother (their father). They were granted legal status in the United States. The following year they went to visit their mother in Europe for summer vacation and never returned. At the time the brothers were aged 10 and 11 years.

Fifteen years later one brother decided to return to the States and went through the process of regaining his former status, and once again was a legal immigrant. This brother had a child and ended up having to pay child support. He was also in college and working a full time job. He fell behind on his payments and his checks were subsequently garnish.

In a conversation with his brother back in Europe, it was suggested to him that he used the brother’s identifying information for specific purposes until such time. Now keep in mind that they were kids when they first arrived in the United States and as kids they had no access to their legal documents as those documents were with their father, except of course for their passports which they needed to travel to Europe to visit their mother at the time.

As I understand it, the brother who remained in Europe telephone his father and instructed him to send his [the European brother] documents which included his SS card and number, alien registration card and number, etc. to the other brother [the American brother]. This was done and the brother went ahead and assumed his brother’s identity.

Now, the reason for this assumed identity, although not hard to imagine, I’m sure, is irrelevant, I assume, but what is important is establishing whether or not a crime was committed. The European brother has given a written instrument signed and notarized under threat of perjury that he gave his brother permission to use his identity and that he is not a victim of the crime of identity theft for which his brother was charged.

It has been ten years, two kids, one marriage, one suicidal attempt, and one hell of a depression for my nephew who is afraid to turn himself over for fear of being locked away for 35 years for a crime he did not commit. That number was reached based upon 7 counts and 5 years for each count, as I was told.

I am seeking to help my nephew with as much information as I can so that he may proceed forward and get his life back on track.

1) According to 2015 Arizona Revised Statutes Title 13-Criminal Code 13-2008 Taking Identity of another person or entity; classification:

“A. A person commits taking the identity of another person or entity if the person knowingly takes, purchases, manufactures, records, possesses or uses any personal identifying information or entity identifying information of another person or entity, including a real or fictitious person or entity, without the consent of that other person or entity,…”

If consent was given in writing, signed, and notarized under threat of perjury by the owner of the documents alleged to have been stolen, who also states in his signed document that he is not a victim of identity theft, can there be or is there a crime of identity theft committed?

2) What must one do in such a situation to inform the pertinent parties/authorities of this “evidence/proof” that a crime was not committed since consent was given by the owner?

3) In this situation how does one get a warrant lift from one’s name without making a court appearance for fear of being arrested and there is a severe lack of funds for an attorney?

I would be most grateful for your replies to this so that I may use you response as merely guidance as to how my nephew may possibly move forward.