Federal Identity Theft and Fraud Charges

Identity theft in the federal system is both a standalone offense and a sentencing enhancement, and the two applications operate independently of each other.

The Identity Theft Enforcement and Restitution Act and the aggravated identity theft statute create a framework in which the theft of another person’s identifying information is criminalized at the federal level both as a predicate offense and as a two-year mandatory minimum consecutive sentence enhancement applicable whenever identifying information is used in connection with a specified felony offense. The enhancement is mandatory and consecutive: it cannot be suspended, reduced below two years, or served concurrently with the sentence for the underlying felony. The sentencing judge has no discretion.

18 U.S.C. 1028: Identity Documents Fraud

Section 1028 prohibits the knowing production, transfer, or use of false identification documents or document-making implements, and the knowing possession of five or more fraudulent identity documents. The maximum sentences range from five years for basic identity document fraud to twenty years for offenses committed in connection with drug trafficking or violent crimes, and to thirty years for offenses committed in connection with terrorism.

Federal prosecution under Section 1028 reaches conduct including the production of false driver’s licenses, the trafficking of fraudulent Social Security cards, and the possession of databases containing stolen identity information at commercial scale. The statute’s scope encompasses both the suppliers and users of false identity documents, making it applicable to fraud schemes that rely on identity document falsification as an enabling step.

18 U.S.C. 1028A: Aggravated Identity Theft

Aggravated identity theft under Section 1028A is the two-year mandatory minimum consecutive sentence enhancement that applies when a defendant knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person during and in relation to any felony violation listed in the statute. The listed felonies include bank fraud, wire fraud, mail fraud, immigration violations, Social Security fraud, and numerous other offenses.

The Flores-Figueroa v. United States decision, issued by the Supreme Court in 2009, held that the statute requires proof that the defendant knew the means of identification belonged to a real person, not merely that it was genuine-appearing. The knowledge element limits the statute’s reach to defendants who specifically understood they were using another real person’s identity, excluding cases where the defendant used randomly generated or clearly fictional identifying information.

Synthetic Identity Fraud

The most rapidly expanding category of federal identity fraud involves synthetic identities: constructed identities that combine real Social Security numbers, typically belonging to individuals with limited credit histories such as children or recent immigrants, with fabricated names, addresses, and dates of birth. The synthetic identity does not belong to any single real person, which complicates both the detection of the fraud and the application of the aggravated identity theft statute’s real person requirement.

Federal prosecutors have pursued synthetic identity fraud under the bank fraud and wire fraud statutes rather than under the aggravated identity theft enhancement, which may not apply where the Social Security number used belongs to a real person but the overall identity does not. The guidelines enhancements for sophisticated means, use of unauthorized access devices, and number of victims provide additional offense level increases that the aggravated identity theft mandatory minimum would have otherwise supplied.

The mandatory minimum in an aggravated identity theft case is not subject to the safety valve, is not reducible through cooperation absent a government motion under 18 U.S.C. 3553(e), and is not affected by any other factor in the sentencing analysis. It is two years, consecutive, with no exceptions. Courts that have found this result unjust in specific cases have said so clearly and imposed it nonetheless.

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Identity theft defenses address the knowledge element, the ownership element for the aggravated theft enhancement, and the defendant’s role in any scheme involving multiple participants. The good faith defense is available where the defendant did not know the identifying information belonged to a real person or believed they had authorization to use it. The authorized user defense is available in some cases involving family members or business associates who used identifying information with the owner’s permission.

The most significant defense consideration in cases involving the 1028A enhancement is whether the predicate felony can be successfully challenged, because the enhancement falls away if the underlying felony is not established. A defendant who contests the underlying fraud charge has a path to eliminating both the predicate felony and the mandatory consecutive sentence, making the trial calculus in identity theft cases different from cases where only the enhancement is at issue.