Review of the Federal Crime of Identity Theft and Defenses
Federal authorities describe identity theft as a crime where somebody wrongfully obtains someone's personal information for fraud, deception, or for economic gain.
Put simply, it's taking the identify of another person for the primary purpose of fraud, false statements, or misrepresentations.
Prosecutors use the federal statute of 18 U.S.C § 1028 to pursue charges against someone for stealing someone's identifying information and uses it for their own benefit.
State identity theft charges
However, it should be noted that the vast majority of identity theft cases are prosecuted in a state court. For example, California Penal Code 530.5 describes the crime of identity theft as taking someone's personal identifying information and using it in a fraudulent manner.
Federal law enforcement agencies and prosecutors will only get involved in identity theft cases if there is a huge amount of loss crossing state lines, or if there is some type of sophisticated conspiracy to commit a fraudulent scheme.
Description of 18 U.S.C § 1028
Federal Identity theft laws are defined under 18 U.S.C. § 1028 and prohibit 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 people to get access personal identifying information is through unsecured networks or purchasing scams over the internet. The most common federal identify theft charges include:
- stealing someone's identity to make online purchases using their credit card,
- fraudulently submitting credit card applications,
- using a counterfeit credit cards or driver's license, and
- forging signatures to make purchases with a credit or debit card.
18 U.S.C. § 1028 also lays out harsh penalties for anyone who knowingly and willingly produces an identification or false document, or has possession of documents with the intent to defraud. Again, it's can't be overstated that federal identity theft charges over the internet will not normally be pursued unless the crime crosses state lines and deals with large amounts of loss.
What is the Identity Theft and Assumption Deterrence Act?
There are literally millions of victims of identity theft each year. ID theft occurs in many forms, but all of them have a common purpose – to use somebody's personal information to commit theft, fraud, or other type of crime.
In order to address the huge rise in identity theft cases across the United States, Congress was able to pass the Identity Theft and Assumption Deterrence Act in 1998. Under the Act, 18 U.S.C. § 1028 was modified to make a federal crime to knowingly commit, attempt to commit, or aid in committing the crime of identity theft.
Prosecutors have the discretion to make identity theft charges much more severe if it occurred to commit another felony offense. For example, if the other felony offense is punishable by a more severe federal sentence than identity theft, they can pursue the longer sentence.
There are other federal statutes that can be charged along with, or instead of, 18 U.S.C. § 1028 identity theft, including:
- 18 U.S.C. § 1029 – credit card fraud,
- 18 U.S.C. § 1030 – computer hacking,
- 18 U.S.C. § 1341 – mail fraud,
- 18 U.S.C. § 1343 – wire fraud,
- 18 U.S.C. § 1344 – bank fraud,
- 18 U.S.C. § 471 – forgery,
- 42 U.S.C. § 408 – social security fraud,
All of these federal offenses carry severe penalties and fines if you are convicted. All types of federal crimes are prosecuted in a United States District Court.
Who Investigates Federal Identity Theft Schemes?
Federal identity theft cases are primarily investigated by the Federal Bureau of Investigations (FBI) and the Secret Service, but other agencies will offer assistance.
18 U.S.C. § 1028 identity theft, like all federal crimes, are prosecuted by the United States Department of Justice.
As discussed, you won't see federal law enforcement agencies getting themselves involved in some small-scale identity theft scheme. If there is a complex ID scheme with a significant amount of loss, they will often pursue the case.
In most federal ID theft cases, the FBI will take the lead in the investigation as they believe stolen identities can be a potential threat to national security.
Put simply, the FBI is looking for large illegal schemes, such as using identify theft proceeds to in furtherance of other serious crimes like drug trafficking. They often work in a partnership with local state task forces.
There are several types of stolen identities used to commit an 18 U.S.C. § 1028 federal identity theft crimes.
Description of Aggravated Identity Theft - 18 U.S.C § 1028A
The Identity Theft Penalty Enhancement Act was created in 2004 for enhanced penalties for aggravated identity theft and used by prosecutors 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.
18 U.S.C § 1028A aggravated identity theft under 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 5 years for terrorism.”
Put simply, the Act mandates the federal court to sentence a defendant to two additional years for a related crime, and five additional years for a terrorism related crime.
The sentence of two or five years in federal court is in addition to any United States Sentencing Guidelines sentence for the underlying indicted charges. In the federal criminal justice system, there is no parole for early release.
What are the Penalties for 18 U.S.C § 1028 Federal Identity Theft?
If you are convicted of 18 U.S.C. § 1028 federal identity theft, the penalties will vary:
- If the ID theft case involved producing or transferring identification, or counterfeit, or you had possession of equipment to produce fraudulent documents, or you possessed equipment to produce documents, or fraudulently obtained $1,000 in currency or goods, the penalties include up to 15 years in a federal prison, and large fines.
- If you are convicted of federal identity theft related to drug trafficking, violent crime, or you have a prior identity theft conviction, the penalties include up to 20 years in a federal prison.
- If you are 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.
How Can I Fight Federal Identify Theft Charges?
If you are under a federal criminal investigation, you should not consent to interview with federal law enforcement agents without first speaking with a lawyer.
Our Los Angeles criminal defense lawyers can guide you through crucial initial decisions on how to deal with federal prosecutors. Negotiation with the prosecution for lesser charges or even a case dismissal may be possible.
The most important decision you could make to minimize the negative consequences of your identity theft case is to retain an experienced criminal attorney in the early stages of the case.
There are a wide-range of defense strategies that could be used in an attempt to obtain the best possible outcome on your ID theft charges.
We might be able to make an argument that you didn't obtain or use a person's identifying information unlawfully and are not guilty of identity theft. Further, perhaps we can show you did not have the required criminal intent to prove fraud.
Recall the prosecutor has to prove, beyond a reasonable doubt, that you intentionally obtained another person's information unlawfully with the intent to commit fraud or a felony.
Another potential defense is to show that you have been falsely accused or there is insufficient evidence to convict you of 18 U.S.C. § 1028 federal identity theft charges.
Our attorneys might be able to take steps to minimize the consequences of the ID theft case, but we need to review all the details to determine an appropriate strategy. Eisner Gorin LLP has two office locations based in Los Angeles County. Contact our law firm for an initial consultation at (877) 781-1570.