FederalIdentity Theft

Federal identity theft under 18 U.S.C. § 1028 and § 1028A targets the fraudulent use, production, or transfer of identification documents and the unauthorized use of another person's means of identification to commit federal crimes. These offenses have become increasingly common in the digital age, as criminals exploit vast amounts of personal information available through data breaches, social media, and the dark web. Identity theft prosecutions carry severe penalties including mandatory consecutive sentences, substantial fines, and lengthy periods of imprisonment.

The Law Offices of Matthew Cohan provides experienced criminal defense representation for individuals facing federal identity theft charges in New York and New Jersey. Our team includes a former prosecutor who understands how federal authorities investigate and prosecute identity crimes. Call us today for a free consultation to discuss your case.

Understanding Federal Identity Theft Statutes

Federal law criminalizes identity theft through several related statutes. The primary provisions are 18 U.S.C. § 1028, which addresses fraud and related activity in connection with identification documents, and 18 U.S.C. § 1028A, which creates an aggravated identity theft offense with mandatory consecutive sentences.

18 U.S.C. § 1028: Fraud and Related Activity in Connection with Identification Documents

Section 1028 is a comprehensive statute that criminalizes multiple forms of conduct related to identification documents and means of identification. The statute prohibits knowingly and without lawful authority producing, transferring, or possessing identification documents or means of identification with the intent to defraud; possessing five or more false identification documents; possessing a document-making implement or authentication feature with the intent to use it to produce a false identification document; trafficking in false or actual identification documents knowing they were stolen or produced without lawful authority; and knowingly using a means of identification of another person with intent to commit unlawful activity.

The statute defines identification document broadly to include any document made or issued by or under the authority of the United States government, a state, or a political subdivision, or an entity recognized as a legal authority, that is of a type intended or commonly accepted for the purpose of identification of individuals. This includes driver's licenses, passports, social security cards, birth certificates, and other government-issued documents.

A means of identification is defined even more broadly to include any name or number that may be used, alone or in conjunction with other information, to identify a specific individual. This includes names, social security numbers, dates of birth, driver's license numbers, biometric data, email addresses, account numbers, and other personal identifiers.

18 U.S.C. § 1028A: Aggravated Identity Theft

Section 1028A creates a separate offense of aggravated identity theft that applies when identity theft is committed during and in relation to specified predicate felonies. This statute carries mandatory minimum sentences that must be imposed consecutively to the sentence for the underlying offense.

Under § 1028A(a)(1), it is unlawful to knowingly transfer, possess, or use, without lawful authority, a means of identification of another person during and in relation to any felony violation of numerous federal statutes. These predicate offenses include theft of government property, theft from interstate commerce, embezzlement, fraud and false statements, immigration fraud, passport fraud, and many others.

The statute contains two tiers. Section 1028A(a)(1) applies to a broad range of predicate felonies and carries a mandatory consecutive 2-year sentence. Section 1028A(a)(2) applies when the identity theft is committed during and in relation to terrorism offenses and carries a mandatory consecutive 5-year sentence.

Elements of 18 U.S.C. § 1028(a)(7): Unauthorized Use of Means of Identification

The most commonly charged provision of § 1028 is subsection (a)(7), which prohibits knowingly transferring, possessing, or using, without lawful authority, a means of identification of another person with the intent to commit, or to aid or abet, or in connection with, any unlawful activity that constitutes a violation of federal law or a felony under state or local law.

To convict under this provision, the government must prove: (1) the defendant knowingly transferred, possessed, or used a means of identification; (2) the means of identification belonged to another person; (3) the defendant acted without lawful authority; and (4) the defendant acted with the intent to commit, aid, or abet unlawful activity constituting a federal crime or state felony.

Knowingly:

The defendant must have acted knowingly, meaning with awareness of the nature of the conduct. However, the government need not prove the defendant knew the conduct was illegal, only that the defendant was aware he or she was using another person's identifying information.

Means of Identification of Another Person:

The statute protects means of identification that belong to actual persons, whether living or deceased, or to fictitious persons. Using a completely fabricated identity does not violate § 1028(a)(7), but using identifying information that happens to belong to a real person, even if the defendant did not know the person existed, can satisfy this element.

Without Lawful Authority:

The defendant must have acted without lawful authority to use the means of identification. A person who uses another's identification with permission, such as an authorized representative, has lawful authority and cannot be convicted under this statute.

Intent to Commit Unlawful Activity:

The government must prove the defendant intended to commit, aid, or abet federal crimes or state felonies. The unlawful activity need not actually be completed or even attempted. Mere intent is sufficient. Common examples include using stolen identities to obtain credit cards, loans, government benefits, or employment, or to facilitate drug trafficking, immigration violations, or terrorism.

Elements of 18 U.S.C. § 1028A: Aggravated Identity Theft

Aggravated identity theft under § 1028A requires proof of three elements: (1) the defendant knowingly transferred, possessed, or used, without lawful authority, a means of identification of another person; (2) the transfer, possession, or use was during and in relation to one of the specified predicate felonies; and (3) the defendant committed or attempted to commit the predicate felony.

Knowledge Requirement:

In the landmark case Flores-Figueroa v. United States, the Supreme Court held that the government must prove the defendant knew the means of identification belonged to another person. It is not sufficient to prove merely that the defendant used a means of identification that happened to belong to someone else. The government must show the defendant knew the identifying information was that of a real person other than himself or herself.

This knowledge requirement makes aggravated identity theft harder to prove in some cases. If a defendant used a social security number randomly selected or fabricated without knowing whether it belonged to anyone, the knowledge element may not be satisfied even if the number did in fact belong to another person.

During and in Relation to a Predicate Offense:

The identity theft must occur during and in relation to one of the specified predicate felonies. This means the identity theft must facilitate or be connected to the underlying crime. For example, using a stolen identity to open a bank account that is then used in a fraud scheme satisfies this requirement because the identity theft facilitated the fraud.

Predicate Offenses:

Section 1028A lists dozens of predicate offenses, including most major federal fraud crimes, theft offenses, immigration violations, and other serious felonies. Common predicate offenses include bank fraud, wire fraud, mail fraud, social security fraud, immigration document fraud, theft of government property, and passport fraud.

Penalties for Federal Identity Theft

Federal identity theft carries severe penalties that vary depending on which statute is charged and the circumstances of the offense.

18 U.S.C. § 1028 Penalties:

For violations of § 1028(a)(7), the most common identity theft charge, the maximum sentence is 15 years imprisonment if the offense is committed to facilitate drug trafficking or crimes of violence, 20 years if the offense is committed to facilitate international or domestic terrorism, or 5 years for other offenses. Fines can reach up to $250,000 for individuals or $500,000 for organizations.

Additional provisions of § 1028 carry different maximum sentences. Producing or transferring false identification documents under § 1028(a)(1) carries a maximum of 15 years imprisonment. Possessing five or more false identification documents under § 1028(a)(3) carries a maximum of 15 years. Possessing document-making implements under § 1028(a)(4) carries a maximum of 5 years.

18 U.S.C. § 1028A Penalties:

Aggravated identity theft carries a mandatory minimum sentence of 2 years for violations under § 1028A(a)(1) or 5 years for terrorism-related violations under § 1028A(a)(2). These sentences must be imposed consecutively to any sentence for the underlying predicate offense, meaning they are added on top of whatever sentence the defendant receives for the crime facilitated by the identity theft.

The mandatory consecutive nature of § 1028A makes it particularly severe. A defendant convicted of bank fraud carrying a 5-year sentence who also committed aggravated identity theft must receive at least 7 years total imprisonment (5 years for bank fraud plus 2 years consecutive for aggravated identity theft). The court has no discretion to impose concurrent sentences or to depart below the mandatory minimum.

Sentencing Guidelines:

Beyond statutory penalties, the United States Sentencing Guidelines impose substantial sentences for identity theft. The base offense level under U.S.S.G. § 2B1.6 is 12 for identity theft involving means of identification. This increases based on the number of victims, the loss amount if the identity theft was used to commit fraud, whether the defendant produced or trafficked in identification documents, and other factors.

For example, if the identity theft involved 50 or more victims, a 4-level enhancement applies. If losses exceeded certain thresholds, additional enhancements apply under the fraud guideline. These enhancements can result in guidelines ranges calling for many years of imprisonment even before considering the mandatory consecutive sentences under § 1028A.