18 U.S.C § 1028 - Federal Identity Theft Laws
In a significant move, Congress enacted Title 18 U.S.C. § 1028 in 1998, marking the inception of the Identity Theft and Assumption Deterrence Act. This was a pioneering step, as it was the first federal statute to address the crime of identity theft specifically.
A person is guilty of identity theft if they use the identifying information of another in connection with any federal crime or any state or local felony.
You can only be charged with identity theft if you first commit another crime and, while doing so, use the personally identifiable information of someone else.
Title 18 U.S.C. 1028A is the related offense of aggravated identity theft, which became law in 2004. It prohibits the use of identifying information belonging to another person in connection with certain federal offenses and in relation to terrorism offenses.
The Department of Justice (DOJ) plays a crucial role in prosecuting cases of identity theft. It often prefers to pursue charges under Section 1028A due to the more severe penalties it carries, ensuring a strong deterrent against such crimes.
For instance, aggravated identity theft carries a mandatory two-year sentence in the Federal Bureau of Prisons, which must be served consecutively to any other sentence. This underscores the serious consequences of such actions.
Identity Theft - Explained
Federal authorities describe identity theft as a crime in which someone wrongfully obtains another person's personal information for fraud, deception, or economic gain.
Simply put, ID theft is taking another person's identity for the purpose of fraud, false statements, or misrepresentations. Federal prosecutors use the federal statute of Section 1028 or 1028A to pursue charges against someone for stealing someone's identifying information and using it for their benefit.
Notably, the majority of identity theft cases are prosecuted in a state court. California Penal Code 530.5 defines the state crime of identity theft as taking someone's personal identifying information and using it fraudulently.
Federal authorities will only get involved in identity theft cases if there is a large amount of loss, crossing state lines, or if there is some type of sophisticated conspiracy to commit a fraudulent scheme.
What Does the Law Say?
18 U.S. Code 1028 Fraud and related activity in connection with identification documents, authentication features, and information defines the crime of federal theft.
This law prohibits anyone from misusing another person's identifying information, whether personal or financial, including:
- Social Security numbers.
- Credit card information.
- Bank account information.
- PIN numbers,
- Driver's license numbers.
- Birth or death certificates
The most common ways for someone to access personal identifying information are through unsecured networks or purchasing scams on the Internet. The most common federal identity theft charges involve:
- Stealing someone's identity to make online purchases.
- Fraudulently using someone's credit card.
- Fraudulently submitting credit card applications.
- Using counterfeit credit cards or driver's licenses.
- Produces an identification or false document.
- Possession of documents with the intent to defraud.
As noted, federal identity theft charges over the Internet will only normally be pursued if the crime crosses state lines and involves large amounts of loss.
What is Aggravated Identity Theft?
The Identity Theft Penalty Enhancement Act was created in 2004 to enhance penalties for aggravated identity theft. Prosecutors use it to pursue charges for specific identity information.
It's using someone's identity to commit felony offenses like stealing another person's Social Security benefits, acts of domestic terrorism, and some immigration violations.
The Act mandates that a federal court sentence a defendant to two additional years for a related crime and five additional years for a terrorism-related crime.
This two- or five-year sentence in federal court is in addition to any United States Sentencing Guidelines sentence for underlying indicted charges. In the federal criminal justice system, there is no parole for early release.
What Does Section 1028A Say?
Title 18 U.S. Code 1028A aggravated identity theft law says-
"(a) Offenses. (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.
(2) Terrorism offense.-
Whoever, during and in relation to any felony violation enumerated in section 2332b(g)(5)(B), knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person or a false identification document shall, in addition to the punishment provided for such felony, be sentenced to a term of imprisonment of 5 years."
(c) Definition.-For purposes of this section, the term "felony violation enumerated in subsection (c)" means any offense that is a felony violation of-
(1) section 641 (relating to theft of public money, property, or rewards [1]), section 656 (relating to theft, embezzlement, or misapplication by bank officer or employee), or section 664 (relating to theft from employee benefit plans).
(2) Section 911 (relating to false personation of citizenship).
(3) section 922(a)(6) (relating to false statements in connection with the acquisition of a firearm).
(4) any provision contained in this chapter (relating to fraud and false statements).
(5) any provision contained in chapter 63 (relating to mail, bank, and wire fraud).
(6) any provision contained in chapter 69 (relating to nationality and citizenship).
(7) any provision contained in chapter 75 (relating to passports and visas).
(8) section 523 of the Gramm-Leach-Bliley Act (15 U.S.C. 6823) (relating to obtaining customer information by false pretenses).
(9) section 243 or 266 of the Immigration and Nationality Act (8 U.S.C. 1253 and 1306) (relating to willfully failing to leave the United States after deportation and creating a counterfeit alien registration card).
(10) any provision contained in chapter 8 of title II of the Immigration and Nationality Act (8 U.S.C. 1321 et seq.) (relating to various immigration offenses); or
(11) section 208, 811, 1107(b), 1128B(a), or 1632 of the Social Security Act (42 U.S.C. 408, 1011, 1307(b), 1320a-7b(a), and 1383a) (relating to false statements relating to programs under the Act)."
What are Related Federal Offenses?
Other federal statutes can be charged along with, or instead of, 18 U.S.C. 1028 identity theft, including:
- 18 U.S.C. 1001 - False statements generally.
- 18 U.S.C. 1029 - Fraud and related activity in connection with access devices.
- 18 U.S.C. 1030 - Fraud and related activity in connection with computers.
- 18 U.S.C., 1031 - Major fraud against the United States.
- 18 U.S.C. 1037 - Fraud and related activity in connection with electronic mail.
- 18 U.S.C. 1341 - Fraud and swindles.
- 18 U.S.C. 1342 - Fictitious name of address.
- 18 U.S.C. 1343 - Fraud by wire, radio, or television.
- 18 U.S.C. 1344 - Bank fraud.
- 18 U.S.C. 1956 - Money laundering.
- 18 U.S.C. 2325 - Telemarketing fraud.
- 42 U.S.C. 408 - Social Security fraud.
All of these federal offenses carry severe penalties, fines, and criminal forfeiture if you are convicted. All types of federal crimes are prosecuted in a United States District Court.
Who Investigates Federal Identity Theft?
Federal identity theft cases are primarily investigated by the Federal Bureau of Investigation (FBI) and the Secret Service. 18 U.S.C. § § 1028 and 1028A. Identity theft, like all federal crimes, is prosecuted by the United States Department of Justice (DOJ).
As noted, federal law enforcement agencies will not get involved in small-scale identity theft cases. If there is a complex ID scheme with a significant amount of loss, they might pursue the case. In most federal identity theft cases, the FBI leads the investigation, as it believes stolen identities can pose a potential threat to national security.
Put simply, the FBI is looking for large-scale illegal schemes, such as using identity theft proceeds to furtherance other serious crimes like drug trafficking. They often work in partnership with local state task forces.
What are the Federal Penalties?
Suppose you are convicted of 18 U.S.C. 1028 or 1028A federal identity theft. In that case, the penalties include the following:
- If the ID theft involved producing or transferring identification, counterfeit, or possession of equipment to produce fraudulent documents, or you fraudulently obtained $1,000 in currency or goods, the penalties include up to 15 years in federal prison and large fines.
- If convicted of federal identity theft related to drug trafficking or violent crime, or have a prior identity theft conviction, the penalties include up to 20 years in federal prison.
- If convicted of identity theft related to a means of aiding or committing domestic or international terrorism, then you are facing up to 30 years in prison.
What are the Defenses Against Federal Identity Theft?
Suppose you are under a federal criminal investigation; you should not consent to an interview with federal law enforcement agents without first speaking with a lawyer.
Our federal criminal defense lawyers can guide you through crucial initial decisions about dealing with federal prosecutors. Negotiating with the prosecution for lesser charges or even a case dismissal may be possible.
There is a wide range of defense strategies that could be used in an attempt to obtain the best possible outcome on your identity theft charges, such as the following.
- Perhaps we can make an argument that you didn't obtain or use a person's identifying information unlawfully and are not guilty of identity theft.
- Perhaps we can show you did not have the required criminal intent to prove fraud. The prosecutor must prove beyond a reasonable doubt that you intentionally obtained someone's information unlawfully with the intent to commit fraud or a felony.
- Perhaps we can argue that you have been falsely accused or that there is insufficient evidence to convict you of federal identity theft charges.
We may be able to minimize the consequences of the ID theft case, but we need to review all the details to determine an appropriate strategy. Contact our law firm, Cron, Israels & Stark, based in Los Angeles, California, for more information.
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