Federal Identity Theft

18 U.S.C § 1028 - Federal Identity Theft Law

Identity theft is a crime where someone wrongfully acquires another person's personal identifying information for fraud or deception for economic gain.

18 U.S.C § 1028 is the federal statute used by prosecutors to charge someone with identity theft.

In other words, it's taking another person's identity for fraud, false statements, or misrepresentations. Federal prosecutors seek to file charges against someone for identity theft, typically using 18 U.S.C § 1028.

Somebody can commit identity theft by using someone's personal information for economic gain or pretending to be another person.

Most identity theft cases are prosecuted at the state level, such as California Penal Code 530.5, which defines the state crime of identity theft as taking someone's personal identifying information and using it fraudulently.

Federal law enforcement agencies and prosecutors won't usually get involved in identity theft unless the offense crosses state lines, a substantial loss, and some conspiracy to commit a fraudulent scheme.

What is Someone's Personal Identifying Information?

As noted, federal Identity theft laws are covered under 18 U.S.C. § 1028, which prohibits anyone from misusing someone's identifying information, whether personal or financial, such as:

• credit card information,
• social security numbers,
• bank account and PINs,
• driver's license numbers,
• birth or death certificates

One of the most common methods for accessing someone's personal identifying information is through unsecured networks or purchasing scams over the internet. People can get someone's personal identifying information through online scams.

Often, the perpetrator will use this information to make online purchases or apply for credit cards under various names. Federal charges for identity theft could include making online purchases in any of the following ways:

• using fake credit cards,
• creating a fake identification, or
• writing a bad check.

When somebody produces identification, a false document, or possesses documents intending to defraud, they can be charged under federal law.

18 U.S.C. § 1028 lays out penalties for anyone who knowingly produces an identification, false document, or possesses documents to defraud.  

What is the Identity Theft and Assumption Deterrence Act?

There are millions of victims of identity theft each year, occurring in different ways but with one common goal: stealing somebody's personal information to commit theft, fraud, or other crime.

Thus, to fight this problem, Congress passed the Identity Theft and Assumption Deterrence Act in 1998.

It's a federal crime to commit, deliberately attempt, or aid somebody to commit ID theft.

Under this Act, 18 U.S.C. § 1028 was amended to make it a federal offense to commit, attempt, or aid someone in committing identity theft.  Since it's a federal offense, ID theft cases are tried in a United States District Court. The illegal schemes that are used to commit Identity theft often violate other federal statutes, such as:

• 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,
• 42 U.S.C. § 408 – social security fraud,

These federal crimes carry harsh penalties, fines, and criminal forfeiture. 18 U.S.C. § 1028 federal identity theft cases are investigated by various agencies, such as the Federal Bureau of Investigations (FBI), Secret Service, and local law enforcement agencies. These cases are prosecuted by the Department of Justice (DOJ).

What is Aggravated Identity Theft?

The Identity Theft Penalty Enhancement Act was created for enhanced penalties for aggravated identity theft. Federal prosecutors use 18 U.S.C § 1028A to charge an alleged perpetrator for using certain identity information.

This statute describes using somebody's identity to commit felony crimes, like stealing Social Security benefits, domestic terrorism, and immigration violations. The federal crime is aggravated identity theft under 18 U.S.C § 1028A is defined as:

• "Anyone who knowingly transfers, possesses, or uses, a means of identification of somebody shall, in addition to the felony penalties, will be sentenced to imprisonment of 2 years, or five years for terrorism."

In other words, an aggravated identity theft conviction will result in a longer sentence in the Federal Bureau of Prisons.

What are the Penalties for a Conviction?

The possible punishments for a federal identity theft conviction will always depend on the specific details of the case, including:

• A penalty of up to 15 years in prison if somebody is convicted of identity theft that involves producing or transferring identification, counterfeiting, or having the equipment to produce documents.
• A penalty of up to 20 years in prison if convicted of identity theft involving drug trafficking or violent crimes or has a prior ID theft conviction.
• A penalty of up to 30 years in prison if convicted of identity theft involving helping someone or committing a terrorist act.

Any allegations of drug trafficking, violent crime, or other federal offense will typically result in the prosecutor filing separate charges with increased penalties.

What Are the Best Legal Defenses?

If you are under a federal criminal investigation, you should not give consent to interview with any federal law enforcement agency without speaking with a federal criminal defense lawyer. Contact our law firm to guide you through early decisions on dealing with investigators or federal prosecutors.

Through negotiation, perhaps we can avoid criminal charges pre-filing. Remember that for a prosecutor to obtain a conviction, they have to prove beyond any reasonable doubt that you acted with criminal intent.

Contact us for legal advice in your case.

Maybe we can argue that you didn't obtain or use someone's identifying information unlawfully and are not guilty of identity theft.

Perhaps we can argue there was a lack of fraudulent intent, commonly called “specific intent.” In other words, if there was no intent to defraud, you should be able to avoid a conviction. Perhaps we can show the alleged illegal activity was simply an honest mistake.

Maybe we can prove the government violated your Constitutional rights during the investigation. If the judge agrees, the evidence can't be used in court against you, often leading to a case dismissal.

If you were questioned without being informed of your right to remain silent, called Miranda rights (link), then your statements could be suppressed after we file the appropriate motion.  Eisner Gorin LLP is located in Los Angeles, California. You can contact us for a case review by phone or use the contact form.