Identity Theft

Federal Identity Theft – 18 U.S.C § 1028

Identity theft is when someone wrongfully obtains another person's information for fraud, deception, or economic gain. In other words, it's taking another person's identity for the purpose of fraud, false statements, or misrepresentations.

Prosecutors use the federal statute of 18 U.S.C § 1028 to file criminal charges against someone for stealing someone's identifying information and using it for their benefit. Most identity theft cases are handled in state courts.

Federal Crime of Identity Theft – 18 U.S.C § 1028

When it comes to these federal identity theft cases, they will typically get involved when somebody takes large dollar amounts or has multiple identifications and uses those to commit other crimes.  It primarily consists in stealing somebody else's information via a computer and using it to commit a crime or to obtain goods or services.

Simply put, identity theft occurs when a person uses someone else's identity for fraudulent purposes, such as to file fake tax returns, take out credit cards or loans with banks, run scams, or carry out any other type of illegal activity that they do not want the federal government to be able to trace back to them.

Congress passed the Identity Theft and Assumption Deterrence Act of 1998 (Identity Theft Act) to address the problem of identity theft. 

Specifically, the Act amended 18 U.S.C. § 1028 to make it a federal crime when anyone knowingly transfers or uses, without lawful authority, a means of identification of another person with the intent to commit, or to aid or abet, any unlawful activity that constitutes a violation of Federal law, or that constitutes a felony under any applicable State or local law.

18 U.S.C 1028A aggravated identity theft is defined as “Anyone who knowingly transfers, possesses, or uses, without consent, a means of identification of someone else shall, in addition to the penalties for a general felony, shall be sentenced to imprisonment of 2 years in federal prison, or five years for terrorism.”

Description of Federal Identity Theft

Federal Identity theft laws prohibit anybody from misusing someone's  person's identifying information, including the following:

  • social security number,
  • credit card information,
  • bank account information,
  • driver's license number.

Unsecured networks are the most common ways to access someone's personal identifying information. The most common federal identity theft charges include the following:

  • stealing somebody's identity to make online purchases with their credit card,
  • submitting fraudulent credit card applications,
  • use of a counterfeit credit card or driver's license, and
  • committing forgery for purchases with a credit or debit card.

18 U.S.C. 1028 also imposes severe penalties for anyone who knowingly and willingly produces an identification or false document or possesses documents intending to defraud.

Federal identity theft cases are typically investigated by the Federal Bureau of Investigations (FBI) and the Secret Service, but other agencies could get involved. The United States Department of Justice prosecutes them. In most federal ID theft cases, the FBI will be the primary agency in the investigation as it could threaten national security.

The FBI looks for large and sophisticated illegal schemes, such as using identity theft proceeds to commit other serious crimes. They frequently work alongside local state task forces.

What Are the Related Federal Crimes? 

Other federal statutes can be charged along with, or instead of, 18 U.S.C. 1028 identity theft, including the following:

These federal crimes also carry harsh penalties if you are convicted, fines and criminal forfeiture. All federal crimes are prosecuted in a United States District Court.

Aggravated Identity Theft – 18 U.S.C 1028A

This crime has to do with someone knowingly transferring, possessing, or using another person's identification without their permission. Often, we see it used to commit crimes used to siphon money used to get goods and services, and then the person whose identity was used is on the hook, holding the bag for the criminal activity. 

The more money involved, the more goods involved, and the more valuables involved, the longer the prison sentence will be for someone convicted of aggravated identity theft at the federal level.

Those charged in federal criminal court with aggravated identity theft under 18 U.S.C. 1028A face a minimum of two years in federal prison.  A judge can give additional time if there are additional charges.  Many times with the person's criminal history combined with the offense level adds up to higher than two years, the judge can give more time, but the minimum if you're convicted of aggravated identity theft is two years in federal prison.

18 U.S.C. 1028A says, "(1) In general.— Whoever, during and in relation to any felony violation enumerated in subsection (c), knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person shall, in addition to the punishment provided for such felony, be sentenced to a term of imprisonment of 2 years."

What are the Penalties for 18 U.S.C 1028?

Suppose you are convicted of violating 18 U.S.C. 1028 federal identity theft laws. In that case, the penalties will vary as follows:

  • Suppose the ID theft case involved producing or transferring identification, or you possessed equipment to create fraudulent documents, or fraudulently obtained $1,000 in currency or goods. In that case, the penalties are massive fines and up to 15 years in federal prison;
  • Suppose you are convicted of identity theft related to drug trafficking or violent crime or have a prior conviction; in that case, you face up to 20 years in prison;
  • Suppose you are convicted of identity theft related to aiding or committing domestic or international terrorism; in that case, you face up to 30 years in prison.

A conviction for identity theft carries a maximum penalty of 15 years, fines, and forfeiture of any personal property used to commit the crime. Suppose ID theft occurred to commit another felony crime. In that case, the penalties can be significantly increased. There's a two-year mandatory minimum for many of these crimes depending on the loss amount and what is involved in the case. 

Another thing going on in these identity theft cases at the federal level is you've got the federal sentencing guidelines. You have a base defense level that will be used for an identity theft-related offense. Then you have enhancements or aggravated factors, adding additional points to the overall sentencing scheme, translating to more time in federal custody.

What are the Defenses for 18 U.S.C 1028?

If you are under a federal criminal investigation, do not consent to interview with federal law enforcement agents without first speaking with an attorney. Our federal criminal defense lawyers will help you navigate critical decisions regarding federal prosecutors. Perhaps negotiation for lesser charges or even a case dismissal is possible.

Defenses for Federal Identity Theft

Different defense strategies could be used to obtain the best outcome on your identity theft charges. For example, perhaps we can argue that you didn't unlawfully get or use a person's identifying information and are not guilty of identity theft.

Maybe we can prove that you did not have the criminal intent to prove fraud. It must be established, beyond a reasonable doubt, that you intentionally obtained someone's information unlawfully with the intent to commit fraud or a felony.

Perhaps we can show you were falsely accused or have insufficient evidence to convict you. Maybe we can minimize the consequences of the ID theft case.

So, you will need an attorney who has been down this road before and has succeeded in a federal identity case. We can mitigate the damage and limit custody time if guilt is not doubted. Call the Hedding Law Firm for a free case review if you or a loved one has been charged with identity theft.  We offer a free case evaluation. 

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