People v. Barden: Is Assumption of Identity a Discrete Element of Identity Theft?

The appeal of Scott Barden’s case involves what elements constitute identity theft and if intangible property can be possessed criminally. The case was brought when the defendant used the credit card number of an associate to pay hotel expenses without being authorized to do so. The specific questions before the appeals court were 1) if the assumption of an identity represents a discrete element of identity theft or if it occurs automatically when one percent uses the identifying information of another, and 2) if the criminal possess of stolen property includes intangible property such as a credit card number.

The dispute stems from an agreement between Scott Barden and Anthony Catalfamo, for whom Barden was working at the time. According to court documents, Catalfamo entered into a third-party billing agreement with the hotel with the intention that Barden would stay on the nights of February 12 through February 16, 2010, and that the charges to the American Express card noted in the agreement were not to go over $2,300. Due to an error on the part of the hotel, however, the card number was kept on file and linked to Barden’s profile, but the agreement limiting the charges was not. Subsequently, Barden charged additional stays at the hotel to the “card number on file” without express permission of Catalfamo and outside of the original third-party agreement made with the hotel.

By the middle of March in 2010, the business relationship between Barden and Catalfamo soured, and Catalfamo indicated that he didn’t want to fund the defendant’s expenses anymore because the project on which he was working was not proceeding in a timely manner. Barden arrived at the hotel on March 24, 2010, however and told the front-desk staffer to charge the American Express card on file. This was Catalfamo’s card, the only American Express card linked to Barden’s computer profile, and the charge was approved by American Express.

Barden checked out of the hotel on March 25, charging almost $2,000 to Catalfamo’s card. Barden then decided to extend his hotel stay and immediately checked back in until March 27, charging almost $1,000 to the card. He returned to the hotel again on March 30, 2010, and stayed for nearly six weeks, telling staff to use the card that was “on file.” During this period, Barden consistently told the hotel staff to use the card “on file.”

At some time during the six-week stay, hotel staff remembered the third-party billing agreement, which had expired, and confronted Barden with this evidence. Barden said he was authorized to use the card for the expenses incurred after February 2010, but this was not true.

When Catalfamo discovered the unauthorized charges, which amounted to over $10,000, he reported them to American Express; the hotel then discovered American Express had declined the charges incurred after February 2010. The hotel made several unsuccessful attempts to contact Barden to discuss the billing issue, finally asking him for an alternate payment method. Defendant Scott Barden gave a Visa card number, which belonged to someone named “Mark Barden” who had no link to the defendant, and the hotel used that card to charge expenses from April 12 to May 13, 2010.

Some of the charges were declined by Visa on May 13, and the hotel became more aggressive in its attempts to receive payment from the defendant, who then asked for a new third-party agreement and who received one from the hotel. Then, according to court documents, “On May 13, 2010, the hotel received a completed agreement from Joseph Rizzuti, Catalfamo’s business associate who had initially introduced him to defendant. The authorization was declined, however, when the hotel attempted to charge the outstanding balance to Rizzuti’s card on the morning of May 14. That same day, the hotel received notice from Visa stating that the company was declining all prior charges made to Mark Barden’s account between April and May. Consequently, after the “chargebacks” from the credit cards of Catalfamo and Mark Barden, the hotel had not received payment for approximately $50,000 worth of charges that defendant had incurred between March and May.”

The hotel called police and Barden was then arrested and subsequently sentenced to 2 1/3-7 years for identity theft, 1 1/3-4 years for possession of stolen property, and one year for each of two theft of services count.

On appeal, the court held the following: “Without that inference—where, as here, the person presenting the card indicates that he or she has the cardholder’s authorization to charge the card, and where the vendor is aware of the card user and cardholder’s distinct identities—assumption of identity does not result. In the rare case where the implied assumption of identity is lacking, identity theft cannot be committed via the use of another’s credit card. Such is the case before us. Here, defendant undoubtedly used Catalfamo’s credit card information without authorization (after the initial third-party billing agreement had expired), but he did not assume Catalfamo’s identity by doing so. Defendant simply misrepresented his authority to use Catalfamo’s card, and because the hotel staff knew that he was in fact not Catalfamo, the ordinary inference that a person using a credit card is the cardholder did not arise… Regardless of the effect on Catalfamo, defendant cannot be guilty of identity theft unless he knowingly and factually assumed Catalfamo’s identity.”

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