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So your probably facing federal identity theft charges and your confused because you didn’t steal anyone’s identity or commit fraud. Maybe you used someone else’s social security number on a job application. Maybe there’s allegations you possessed fake IDs. Or maybe your charged with “aggravated identity theft” for conduct you thought was minor. Look, we get it. Your ABSOLUTELY OVERWHELMED by the charges. And you should be TERRIFIED! Because aggravated identity theft under 18 USC 1028A carries MANDATORY 2-YEAR prison sentence that MUST run consecutive to any other sentence!
Let me explain the identity document fraud trap. Section 1028 criminalizes production, transfer, possession, and use of false identification documents and authentication features – incredibly broad statute covering everything from fake driver’s licenses to stolen credit cards!
The statute lists EIGHT prohibited acts! Production or transfer of false IDs, possession of document-making equipment, trafficking in false authentication features, possession with intent to defraud, using another person’s identification! Each is separate offense!
Here’s what’s really scary – “means of identification” is BROADLY defined! Name, Social Security number, date of birth, driver’s license number, bank account, credit card, biometric data, email address, unique ID! Virtually ANYTHING that identifies someone!
“Identification document” includes government-issued IDs! Driver’s licenses, passports, birth certificates, immigration documents, military IDs! Even non-government IDs like employee badges or student IDs can qualify! We’ve seen prosecutions for college ID cards!
Two statutes with DRASTICALLY different penalties!
Section 1028 is general identity document fraud – penalties range from 1 to 30 years depending on circumstances! Section 1028A is “aggravated identity theft” – MANDATORY 2 years (or 5 for terrorism) added to underlying offense!
Regular 1028 violations have tiered penalties! Simple possession? Up to 1 year! Production or transfer of IDs? Up to 15 years! If involves drug trafficking or violence? Up to 20 years! Terrorism? 30 years!
But 1028A is different animal! Requires commission of predicate felony PLUS use of another’s means of identification! The 2-year sentence is MANDATORY MINIMUM and runs CONSECUTIVE not concurrent!
This means: convicted of fraud carrying 5 years PLUS aggravated identity theft? That’s 7 years MINIMUM! Can’t reduce it, can’t run concurrent, can’t get safety valve! Judge HAS NO DISCRETION!
Predicate offenses for 1028A include fraud, immigration violations, firearms offenses, theft of government property! Over 30 listed predicate offenses! Virtually every federal fraud case now includes aggravated identity theft charge!
Elements seem simple but Supreme Court added critical knowledge requirement!
“During and in relation to” requires temporal and causal connection! Using someone’s SSN to complete fraud transaction? Clearly “in relation to”! But what if victim’s name used months before fraud completed? Courts split on timing!
Supreme Court in Flores-Figueroa held government MUST prove defendant KNEW the means of identification belonged to another actual person! Not enough to prove defendant used false SSN – must prove he knew it was SOMEONE ELSE’S real SSN!
This is huge protection! Used made-up SSN that happened to match real person? Not aggravated identity theft unless knew it was real! Random number generator created valid SSN? No knowledge!
But prosecutors argue circumstantial evidence proves knowledge! If SSN format suggests real person, if name matches SSN, if documents appear authentic – jury can infer knowledge! We fight by showing client believed information was fake!
Prosecutions fall into predictable patterns!
Immigration fraud is MOST common – using fake green cards, stolen SSNs for employment, purchasing fraudulent documents! Every undocumented worker using false papers risks federal charges!
Tax refund fraud prosecutions are EXPLODING! Filing returns using stolen SSNs to claim refunds! One return? That’s identity theft AND fraud! 100 returns? 200 federal felonies!
Credit card fraud always includes identity theft! Using stolen card numbers, opening accounts in others’ names, counterfeiting cards! Each transaction is separate count! One shopping spree? 50 identity theft charges!
Medicare and healthcare fraud involve massive identity theft! Billing under stolen patient IDs, using fake provider credentials! Entire fraudulent clinics charged with hundreds of identity theft counts!
Document production for others – fake IDs for undocumented workers, counterfeit licenses, fraudulent passports! Producing or selling false documents is most serious 1028 violation carrying 15 years!
2-year mandatory for aggravated identity theft CANNOT be avoided!
Judge must impose at least 2 years and it MUST run after other sentences! No probation! No time served! No reduction for cooperation! Safety valve doesn’t apply! 2 years minimum, period!
This creates pressure to plead! Prosecutors use mandatory minimum as hammer in plea negotiations! “Plead to fraud without 1028A, get 3 years! Go to trial and lose, get 7 years minimum!” The trial penalty is MASSIVE!
Multiple counts = multiple mandatory minimums! Five victims? That’s 10 years mandatory PLUS underlying fraud sentence! We’ve seen defendants face 20+ years from mandatory minimums alone!
Sentencing statistics are DEVASTATING! August 2024 data shows 100% of aggravated identity theft convictions resulted in prison – NO exceptions! Average sentence 51 months when combined with other offenses!
Only way to avoid mandatory? Win at trial on aggravated identity theft count, plead to lesser charges, or get government to dismiss 1028A count in plea deal! But prosecutors RARELY dismiss because it’s their leverage!
Section 1028 penalties vary wildly based on conduct!
Subsection (b) creates SEVEN penalty levels – ranging from 1 year to 30 years! Simple possession of false ID? 1 year maximum! Production or transfer? 15 years! If connected to drug trafficking? 20 years!
Enhanced penalties for repeat offenders! Second conviction? Penalties double! First offense production got 5 years? Second offense gets 10 years! Mandatory minimums for recidivists!
Terrorism-related identity theft carries 30 YEARS! If offense facilitates terrorism or violent crime, massive enhancement applies! Even tangential connection to terrorism triggers this!
Fines can reach $250,000 per count! Plus restitution to victims, forfeiture of equipment, asset seizures! We’ve seen total financial destruction beyond prison time!
Supervised release follows prison – typically 3 years! Conditions include computer monitoring, financial disclosure, prohibition on document-making equipment! Violate supervision? Back to prison!
Several defenses exist but require aggressive litigation!
Lack of knowledge is primary defense – didn’t know documents were false or belonged to real person! For 1028A, Flores-Figueroa defense: didn’t know means of identification was another person’s! We prove client believed information was fabricated!
Lawful authority defeats charges! If had permission to use someone’s ID or documents were legitimately obtained, not identity theft! We show employer authorized use, family member consented, legitimate business reason!
No intent to defraud! Must prove specific intent to defraud – using fake ID for age verification at bar isn’t federal crime! Research purposes, artistic uses, legitimate duplicates!
Affirmative defense for research and development! If conduct was for lawful R&D purposes, complete defense! Security researchers testing authentication features! Software developers working on ID verification!
Challenge “during and in relation to” element for 1028A! If identity use was incidental to predicate offense not integral to it, not aggravated theft! Temporal gap between identity use and fraud!
Entrapment for sting operations! Government informants induced purchase of fake IDs you wouldn’t otherwise buy? Entrapment! We’ve won when undercover operations created entire scheme!
Look, we’re not your typical lawyers who don’t understand identity document fraud nuances. We’re former federal prosecutors who CHARGED identity theft cases and know EXACTLY what government must prove – especially critical knowledge elements!
We understand Flores-Figueroa requirements and how to challenge knowledge! We know when conduct doesn’t satisfy “in relation to” predicate! We can negotiate 1028A dismissals to avoid mandatory minimums! Most importantly, we prevent minor document offenses from becoming federal felonies!
Other lawyers don’t fight aggravated identity theft charges because “it’s just 2 years”! They don’t understand 2 years CONSECUTIVE means real sentence is 7+ years! They miss knowledge defenses! Their ignorance leads to mandatory minimums that shouldn’t apply!
Call us RIGHT NOW at 212-300-5196
Identity theft investigations move FAST – act immediately!
Former federal prosecutors – Identity theft specialists – Available 24/7!
Don’t wait if your facing identity theft investigation! Government is tracing document usage NOW! Every additional use creates new count! Cooperating witnesses providing evidence! Self-surrender possible if you act fast!
Remember – federal identity theft charges aren’t about sophisticated fraud rings, there about prosecutors turning document possession into decades in prison. One fake ID, one used SSN, one fraudulent application can mean mandatory minimums plus devastating enhancements. You need someone who understands both technical defenses AND how to negotiate away 1028A charges. Call us NOW before identity theft charges destroy your future!
Very diligent, organized associates; got my case dismissed. Hard working attorneys who can put up with your anxiousness. I was accused of robbing a gemstone dealer. Definitely A law group that lays out all possible options and best alternative routes. Recommended for sure.
- ROBIN, GUN CHARGES ROBIN
NJ CRIMINAL DEFENSE ATTORNEYS