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What is Identity Theft Under Federal Law?

Posted by Dmitry Gorin | Jul 20, 2022

Someone can commit identity theft by using someone else's personal information for economic gain or pretending to be someone else. This is usually done through fraud, deception, false statements, or misrepresentations.

What is Identity Theft Under Federal Law?

In other words, it's when someone steals another person's identifying information, uses stolen identities, or copies information without consent. The vast majority of identity theft cases are prosecuted at the state level.

In federal identity theft, the government will only get involved if somebody is stealing a considerable sum of money or using numerous identifications to commit other federal crimes.

The law under 18 U.S.C. § 1028 makes it a crime to misuse someone's personal identifying information, like their social security number, driver's license number, or credit card number.

People can get someone's personal identifying information by hacking into insecure networks or through online scams. Sometimes people use this information to make online purchases or apply for credit cards under a different name. Federal charges for identity theft can include making online purchases with:

  • a fake credit card,
  • creating a fake ID, or
  • writing a bad check.

If someone produces identification, a false document, or possesses documents intending to defraud, they can be punished under federal law. If someone commits identity theft using the internet and crosses state lines, it can be prosecuted as a federal crime. Identity theft crimes are also commonly prosecuted under state law if a federal issue is not present.

18 U.S.C. § 1028 provides punishments for anyone who knowingly produces an identification, false document, or possesses documents with intent to defraud.  Our federal criminal defense attorneys will look at this statute below.

What is the Identity Theft and Assumption Deterrence Act?

Due to the dramatic sharp rise in identity theft cases across the United States, Congress passed the Identity Theft and Assumption Deterrence Act in 1998.

Identity Theft and Assumption Deterrence Act

Under this Act, 18 U.S.C. § 1028 was modified to make it a federal crime to knowingly commit, attempt, or aid in committing identity theft.  Since it's a federal crime, ID theft cases are prosecuted in a United States District Court.

Federal prosecutors could make identity theft charges more severe if they occurred along with another felony offense, resulting in a harsher sentence. The illegal schemes used to commit Identity theft or fraud could also violate other related federal statutes, such as:

These federal offenses carry severe penalties, fines, and criminal forfeiture. 18 U.S.C. § 1028 federal identity theft cases are usually investigated by several agencies, such as the Federal Bureau of Investigations (FBI), Secret Service, and other local and federal law enforcement agencies. They are prosecuted by Assistant United States Attorneys within the Department of Justice (DOJ).

What is Aggravated Identity Theft Under Federal Law?

In 2004, the Identity Theft Penalty Enhancement Act was created for enhanced penalties for aggravated identity theft. Federal prosecutors use 18 U.S.C § 1028A to charge someone for using certain identity information.

It's described as using the identity of someone to commit felony crimes, such as the theft of someone's Social Security benefits, an act of domestic terrorism, and immigration violations. Aggravated identity theft under 18 U.S.C § 1028A is defined as:

  • Whoever knowingly transfers, possesses, or uses, without consent, a means of identification of someone shall, in addition to the penalties for the felony, will be sentenced to imprisonment of 2 years, or five years for terrorism

If you are convicted of aggravated identity theft, you face a longer potential prison sentence. Speaking to an experienced criminal defense attorney is essential if you encounter an identity theft accusation. The potential penalties, if convicted, can be severe.

What are the Penalties for a Federal Identity Theft Conviction?

The potential penalties for a conviction of federal identity theft depend on the facts and circumstances of the case and have three different possible maximums. The potential penalties are as follows:

  • A maximum penalty of 15 years in prison if someone is convicted of federal identity theft involving producing or transferring identification, counterfeiting, or possessing equipment to produce documents. The maximum sentence applies if the defendant obtained currency or goods up to $1,000;
  • A maximum penalty of 20 years in prison if someone is convicted of identity theft involving drug trafficking, violent crime, or has been convicted of identity theft in the past;
  • A maximum penalty of 30 years in prison if someone is convicted of identity theft involving a connection to a means of helping or committing a terrorist act.

Prison time for a conviction can also be combined with other charges if other criminal acts were alleged to have taken place.

Any accusations of drug trafficking, violent crime, terrorism, or other federal crimes will result in separate criminal charges that can increase the potential prison time upon conviction. Make sure you put up the most vigorous defense you can if facing such accusations.

What Are Some Defenses to Federal Identity Theft?

If you are under investigation for identity theft or identification fraud, contact our federal criminal lawyers to guide you through critical early decisions on handling investigators or federal prosecutors. Perhaps we can negotiate pre-filing to avoid formal criminal charges.   

For a prosecutor to secure a conviction for a crime related to federal identity theft, it must be proven that the individual accused acted with intent and purpose.

Defenses for Federal Identity Theft

If someone accidentally uses another's identity, that lack of intent can be a potential defense, as identity theft requires fraudulent intent. This intent is known as a specific intent. If there is no clear intent to defraud and it can be shown that the alleged use was a mistake, then the accused can use that defense to negate the mental state element necessary for a conviction.

If the government violated an accused's Constitutional rights while investigating or gathering evidence, then that evidence can't be used in court if the judge agrees that the violation occurred.

This is done by filing and arguing a successful motion. Suppose law enforcement obtained evidence against the accused without a warrant or an exception to the Fourth Amendment's warrant requirement? In that case, that evidence can be excluded, resulting in the case being dismissed entirely. If guilt is not in doubt, we would negotiate for a favorable plea bargain.

If the accused was questioned without being informed of his right to remain silent, called Miranda rights, their statements could be suppressed upon a successful motion.

Eisner Gorin LLP is a top-rated criminal defense law firm that provides legal representation to anyone charged with a federal offense nationwide. You can reach us for a case review via phone or contact form.

About the Author

Dmitry Gorin

Dmitry Gorin is a licensed attorney, who has been involved in criminal trial work and pretrial litigation since 1994. Before becoming partner in Eisner Gorin LLP, Mr. Gorin was a Senior Deputy District Attorney in Los Angeles Courts for more than ten years. As a criminal tri...

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