Someone can commit identity theft by using another person's personal information for financial gain or by pretending to be that person. This typically involves fraud, deception, false statements, or misrepresentations.
In simple terms, identity theft occurs when someone steals another person's identifying information, uses it without permission, or copies it without authorization. State authorities typically prosecute most cases of identity theft.
However, in cases of federal identity theft, the government intervenes when a large amount of money is stolen or multiple identifications are used to commit other federal offenses.
The severity of these charges underscores the gravity of the situation. Under 18 U.S.C. § 1028, it is a criminal offense to improperly use someone's personal identification information, such as their Social Security number, driver's license number, or credit card number.
Types of Identity Theft
People can obtain someone's personal identifying information by hacking insecure networks or through online scams. Occasionally, this information is used to make online purchases or apply for credit cards under a false name. Federal charges for identity theft may involve making online purchases with:
- A counterfeit credit card
- Creating a counterfeit ID, or
- Writing a bad check.
Producing or possessing false documents with the intent to defraud can lead to punishment under federal law.
If someone commits internet-based identity theft and crosses state boundaries, it can be prosecuted as a federal crime. However, if no federal issue exists, identity theft is often prosecuted under state laws.
Section 18 U.S.C. § 1028 outlines penalties for anyone who intentionally produces, forges, or possesses false identification or documents with fraudulent intent. Our federal criminal defense attorneys will review this statute below.
The Identity Theft and Assumption Deterrence Act
In response to the sharp increase in identity theft cases nationwide, Congress enacted the Identity Theft and Assumption Deterrence Act in 1998. The Act was designed to enhance penalties for identity theft and to provide for a more comprehensive approach to combating this crime.
Under this Act, 18 U.S.C. § 1028 was amended to establish that knowingly committing, attempting, or assisting in identity theft is a federal offense. Because it is a federal crime, cases of ID theft are prosecuted in a United States District Court.
Federal prosecutors can pursue harsher 18 U.S.C. § 1028 identity theft charges when these crimes occur in conjunction with another felony, resulting in longer sentences. The illegal schemes involved in identity theft or fraud may also breach other federal laws, including:
- Credit card fraud,
- Social security fraud,
- Computer hacking,
- Mail fraud, and
- Wire fraud.
These federal offenses carry strict penalties, fines, and potential criminal forfeiture. Multiple agencies, including the FBI, the Secret Service, and various local and federal law enforcement groups, typically investigate cases involving federal identity theft under 18 U.S.C. § 1028. They are prosecuted by Assistant U.S. Attorneys from the Department of Justice (DOJ).
What Constitutes Aggravated Identity Theft under Federal Law?
In 2004, the Identity Theft Penalty Enhancement Act was enacted to impose stricter penalties for aggravated identity theft. Federal prosecutors typically invoke 18 U.S.C. § 1028A to prosecute individuals for using specific identity information.
It refers to using another person's identity to carry out felony crimes, including stealing Social Security benefits, acts of domestic terrorism, and immigration violations. Under 18 U.S.C. § 1028A, aggravated identity theft is defined as:
- Anyone who knowingly transfers, possesses, or uses someone else's means of identification without consent will face, in addition to felony penalties, a prison sentence of 2 years, or 5 years if related to terrorism.
If convicted of aggravated identity theft, you could face a significantly longer prison term. If you are accused of identity theft, it is crucial to consult an experienced criminal defense attorney. The potential penalties upon conviction are severe and can have a significant impact on your life.
What Possible Penalties Exist for a Conviction?
The possible penalties for a federal identity theft conviction vary based on the specific facts and circumstances of each case, with three different maximums. The penalties include:
- A maximum of 15 years in prison may be imposed for federal identity theft related to producing, transferring, counterfeiting, or possessing equipment to make identification documents. This maximum sentence applies if the defendant obtained currency or goods worth up to $1,000.
- A maximum prison sentence of 20 years applies if someone is convicted of identity theft related to drug trafficking, violent crimes, or has a prior conviction for identity theft.
- A maximum penalty of 30 years in prison applies if someone is convicted of identity theft related to facilitating or committing a terrorist act.
Prison time for a conviction may be combined with sentences for other charges if additional criminal acts are alleged. Allegations of drug trafficking, violent crime, terrorism, or other federal offenses will lead to separate charges, potentially increasing the overall prison time if convicted. It's crucial to mount the strongest possible defense if you are facing these allegations.
What Are Some Common Defenses?
If you're being investigated for identity theft or fraud, contact our federal criminal defense lawyers for guidance on initial decisions regarding investigators or federal prosecutors. We might also be able to negotiate a pre-filing agreement to prevent formal charges.
To obtain a conviction in federal identity theft cases, a prosecutor must demonstrate that the accused knowingly and intentionally committed the crime.
If someone unintentionally uses another person's identity, it can serve as a defense, as identity theft typically requires fraudulent intent, also known as specific intent. Without clear evidence of an intent to defraud, and if the use was a mistake, the accused may invoke this defense to challenge the mental state required for a conviction.
Suppose the government violates an accused person's Constitutional rights during an investigation or evidence collection. In that case, the evidence cannot be used in court, provided the judge finds that the violation occurred.
This is achieved by filing and arguing a successful motion. Suppose law enforcement gathers evidence against the accused without a warrant or an applicable exception to the Fourth Amendment's warrant requirement. In that case, that evidence can be excluded, potentially leading to the case's dismissal.
If the accused was questioned without being informed of their right to remain silent, as specified in Miranda rights, their statements might be excluded if a successful motion to suppress evidence is filed. The Hedding Law Firm is a highly regarded criminal defense practice offering legal representation to individuals charged with federal offenses across the country.
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