Federal Identity Theft — 18 U.S.C. § 1028 and § 1028A
Aggravated identity theft carries a mandatory consecutive 2-year sentence
Federal Identity Theft Statutes: 18 U.S.C. § 1028 and § 1028A
Identity theft is a serious crime that has severe consequences under federal law. The two primary statutes governing identity theft at the federal level are 18 U.S.C. § 1028 (fraud with identification documents) and 18 U.S.C. § 1028A (aggravated identity theft). These laws have significant penalties and can lead to lengthy prison sentences, especially when aggravated identity theft is involved.
Section 1028 of the United States Code addresses a wide range of activities related to identification documents and authentication features. This includes making, forging, altering, or counterfeiting government-issued identification documents or authentication features, such as Social Security cards, passports, driver's licenses, and birth certificates.
Violations under 18 U.S.C. § 1028 can range from misdemeanor offenses to felonies depending on the circumstances of the crime. For example, if an individual makes a counterfeit Social Security card, they could face up to 15 years in prison upon conviction. However, the statute's reach is expansive and includes not only physical documents but also digital representations.
Mandatory Consecutive Sentence Under § 1028A
Section 1028A of Title 18 imposes a mandatory consecutive sentence for aggravated identity theft. This section applies when an individual, during and in relation to certain federal crimes (such as those involving fraud or illegal immigration), knowingly transfers, possesses, or uses another person's identification information without lawful authority.
The penalties under § 1028A are severe: a mandatory two-year prison term for the offense. If the underlying crime is related to terrorism, the sentence increases to five years. This consecutive sentencing means that the identity theft charge does not merge with the primary offense and must be served separately after the completion of the base sentence.
For example, if someone uses another person's Social Security number to secure a line of credit fraudulently, they could face a sentence for bank fraud under 18 U.S.C. § 1343 and then an additional mandatory two years for violating § 1028A.
The statute has been the subject of significant legal scrutiny, particularly regarding what constitutes "knowingly" using another person's identification information.
Legal Interpretations: Flores-Figueroa v. United States
In Flores-Figueroa v. United States, 556 U.S. 848 (2009), the Supreme Court addressed a narrow but critical aspect of § 1028A: what does it mean to "knowingly" use another person's identification information? The case involved an immigrant who used false Social Security numbers when filling out job applications. The prosecution argued that any unauthorized use or possession of someone else’s personal identification information, regardless of intent, fell under the statute.
The Court disagreed, ruling that for a conviction to stand under § 1028A, prosecutors must prove not just that the defendant used another person's information but also that they knew it was false and unauthorized. The decision effectively narrowed the scope of who can be charged with aggravated identity theft under federal law.
Practically speaking, this means defense attorneys now have a more robust argument to challenge cases where defendants may not have been aware their actions violated § 1028A or did not know they were using someone else's identification information. For instance, if a defendant uses an incorrect but fabricated Social Security number because they genuinely believed it was theirs due to prior identity theft issues, the prosecution would need to prove beyond a reasonable doubt that the defendant knew the number belonged to another person.
The Supreme Court’s decision in Dubin v. United States further clarified this knowledge requirement by emphasizing the importance of mens rea (the mental element of criminal intent). This case underscores the necessity for prosecutors to establish clear and convincing evidence that defendants not only used identification information but did so with the specific intent to commit an underlying crime.
In summary, federal identity theft statutes under 18 U.S.C. § 1028 and § 1028A have stringent penalties, especially for aggravated cases where a mandatory consecutive sentence is imposed. Understanding these laws and their legal interpretations is crucial not only for defense attorneys but also for anyone dealing with sensitive personal identification information.
Remember that using another person's identification information without knowing it's unauthorized may result in lesser charges or no criminal liability under current interpretations of federal identity theft law.
Defense Resources & Legal Help