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18 U.S.C. § 1028 – Identity fraud

Identity fraud prosecutions have surged dramatically. In 2023, the Federal Trade Commission received over 1.4 million identity theft reports, and federal prosecutors have responded aggressively. If you’re facing charges under 18 U.S.C. § 1028, you need to understand both the statute’s complexities and your defense options.

The Anatomy of an Identity Fraud Charge

Federal identity fraud extends beyond using someone’s credit card without permission. Section 1028 criminalizes knowingly transferring, possessing, or using identification documents or authentication features belonging to another person with fraudulent intent.

Consider United States v. Montejo, where the defendant was convicted for using a roommate’s Social Security number to obtain employment. The court emphasized that even minor uses of another’s identification can trigger federal charges if done knowingly and without authorization.

The government must prove three elements:

First, you possessed, transferred, or used identification belonging to another person. This includes driver’s licenses and passports, but also Social Security numbers, employee IDs, and biometric data.

Second, your actions were knowing and intentional. In United States v. Flores-Figueroa, the Supreme Court clarified the government must prove you knew the identification belonged to an actual person.

Third, you acted without lawful authority with intent to commit fraud. This intent requirement often becomes the battleground in identity fraud cases.

Real Consequences Beyond the Headlines

While § 1028 carries up to 15 years in prison (30 for terrorism-related offenses), collateral damage often proves more devastating.

Employment consequences are severe. A Miami paralegal convicted in 2022 served 18 months but found herself permanently barred from her profession. Professional licenses in healthcare, finance, and other fields require clean criminal records. One conviction can end decades-long careers.

Immigration consequences hit non-citizens hard. Identity fraud is a crime involving moral turpitude, triggering deportation even for permanent residents. In Matter of Serna, the Board of Immigration Appeals held that § 1028 convictions render long-term green card holders removable.

Financial repercussions extend beyond fines. Banks close accounts of those merely charged. Credit scores plummet. Background checks make obtaining housing nearly impossible. One client described it as “serving a life sentence after completing probation.”

Building Your Defense

Effective strategies examine every aspect of the government’s case.

Fourth Amendment challenges often succeed. Was the traffic stop that revealed false documents justified? Did officers exceed search warrant scope when examining devices? United States v. Comprehensive Drug Testing established strict digital search limits prosecutors sometimes violate.

Jurisdictional defenses matter. Federal prosecutors must establish the fraud affected interstate commerce or involved federal documents. Some cases belong in state court, where penalties are often lighter.

The knowledge requirement creates opportunities. Prosecutors must prove you knew the identification belonged to a real person. Defendants who believed they used fictitious information may have complete defenses. In United States v. Villanueva-Sotelo, the D.C. Circuit reversed a conviction due to improper jury instructions on this requirement.

Entrapment applies in some undercover operations. When agents provide means and opportunity, then badger reluctant participants, entrapment defenses can succeed.

Navigating the Federal System

Federal procedure differs from state court. Pretrial detention is common, especially with international ties or multiple identities. Sentencing guidelines create a complex point system affecting outcomes. Number of victims, loss amount, and sophisticated means increase sentences.

Federal discovery is limited. The government needn’t turn over witness statements until after testimony, making defense investigation crucial.

Plea negotiations require skill. Prosecutors charge multiple counts, threatening consecutive sentences as leverage. Experienced attorneys can negotiate dismissals or concurrent sentences, reducing exposure.

When Trial Becomes Necessary

Not every case should go to trial, but when negotiations fail, aggressive litigation is essential. Federal juries often include identity theft victims, creating bias. Voir dire must address these prejudices.

Expert witnesses provide crucial testimony about digital forensics. Chain of custody issues arise with electronic evidence. Metadata analysis sometimes reveals documents were created at times inconsistent with government theories.

Cross-examining cooperating witnesses requires care. Many prosecutions rely on co-conspirators testifying for leniency. Their motivations must be exposed.

Post-Conviction Considerations

Options remain after conviction. Sentencing advocacy means the difference between probation and prison. Acceptance of responsibility, restitution, and compelling circumstances affect decisions.

Appeals focus on jury instruction errors or improper evidence admission. The complexity of § 1028 means judges sometimes misstate law. Preserving issues requires timely objections.

For non-citizens, relief may be available if counsel failed to advise about immigration consequences. Under Padilla v. Kentucky, this constitutes ineffective assistance.

The Path Forward

Early intervention produces better outcomes. Witnesses’ memories fade. Electronic evidence can be preserved or destroyed. The sooner defense counsel investigates, the stronger your defense.

Prosecutors respond better to professional advocacy than excuses. Well-prepared defenses acknowledging charge seriousness while presenting compelling mitigation often achieve better results than scorched-earth litigation.