18 USC 1028 Identity Theft: Federal Defense

18 USC 1028 Identity Theft Federal: Penalties, Defenses, and What You Need to Know

Federal identity theft charges under 18 USC 1028 are among the most serious white-collar crimes prosecuted in the United States. If your facing allegations related to fraudulent identification documents, stolen personal information, or aggravated identity theft, your looking at potential prison sentances that can stretch decades. The goverment has vast resources dedicated to prosecuting these cases, and the penalties have became increasingly severe in recent years.

What makes these charges particularly dangeruos is the mandatory minimum sentencing provisions. Under 18 USC 1028A, prosecutors can stack a 2-year consecutive prison term on top of whatever sentance you recieve for the underlying offense. That means irregardless of what happens with you’re primary case, your guaranteed to serve atleast two additional years in federal prison if convicted of aggravated identity theft.

Understanding the scope of 18 USC 1028 and the defenses available to you is crucial. This statute covers a wide range of conduct, from producing fake driver’s licenses to possessing authentication features used to make fraudulant documents. The difference between a conviction and a acquittal often comes down to whether the prosecution can prove specific elements beyond a reasonable doubt—particularly the knowlege requirements established by the Supreme Court in Flores-Figueroa v. United States.

What is 18 USC 1028? Understanding Federal Identity Theft Law

Title 18, United States Code, Section 1028 is the federal statute that criminalizes fraud and related activity in connection with identification documents and information. Basicly, this law makes it a federal crime to produce, transfer, possess, or use false identification documents or another person’s means of identification with the intent to commit unlawful activity.

The statute was origionally enacted in 1982 and has been amended multiple times to address evolving forms of identity theft. Congress expanded it’s reach significantly in 1998 with the Identity Theft and Assumption Deterrence Act, and again in 2004 with the Identity Theft Penalty Enhancement Act, which created the aggravated identity theft offense under 18 USC 1028A.

Here’s the thing—18 USC 1028 is incredibly broad. The law don’t just cover traditional fake IDs. It extends to any “means of identification,” which the statute defines to include names, Social Security numbers, dates of birth, driver’s license numbers, bank account numbers, credit card numbers, biometric data, and even unique electronic identification numbers. Prosecutors has used this statute to charge everything from passport fraud to computer hacking cases where defendents accessed systems using stolen credentials.

The distinction between 18 USC 1028 and 18 USC 1028A is crucial for anyone facing these charges. Section 1028 is the base identity theft statute, covering ten seperate categories of prohibited conduct. It requires the goverment to prove you acted with intent to defraud. Section 1028A, on the other hand, is a sentencing enhancement that applies when you commit identity theft “during and in relation to” certain predicate felonies. And here’s the kicker—1028A carries a mandatory minimum 2-year consecutive sentance that must be served on top of whatever you get for the underlying crime.

Most people don’t realize how easy it is to get charged under these statutes. You don’t have to be running a sophisticated identity theft ring. Simple posession of fake documents with the intent to use them can be enough. Even attempting to produce false IDs—without ever actually succeding—is a federal crime under this law. The jurisdictional reach is also expansive: any document or identification that affects interstate or foreign commerce falls under federal jurisdiction, which in practical terms means nearly every case.

The Ten Prohibited Acts Under 18 USC 1028

Federal law outlines ten specific ways you can violate 18 USC 1028. Understanding these prohibited acts is essential because the elements the prosecution must prove vary depending on which subsection your charged under. Lets break them down:

1. Production of False Identification Documents (§1028(a)(1))
Its a federal crime to knowingly produce an identification document without lawful authority. This covers manufacturing fake passports, driver’s licenses, birth certificates, or any other government-issued ID. The goverment must prove you knew the document was false and that you made it or caused it to be made. For example, if you created counterfeit driver’s licenses using a printer and laminating equipment, you could be charged under this provision irregardless of whether you actually used or distributed the fake IDs.

2. Transfer of False Identification Documents (§1028(a)(2))
Transfering a false identification document is illegal even if you didn’t create it yourself. This means selling, giving, or otherwise providing fake IDs to others. Prosecutors often use this provision against people who distribute false documents, weather they made them or obtained them from another source. The transfer don’t have to involve money—giving a fake ID to a freind can be enough.

3. Possession with Intent to Defraud (§1028(a)(3))
Simply possessing a false or stolen identification document with intent to defraud the United States is a federal offense. Note that this requires proof of intent—mere posession without fraudulent purpose isn’t enough for conviction under this subsection. However, prosecutors will often infer intent from the circumstances, such as possessing multiple fake IDs or documents in different names. If your caught with five fake driver’s licenses, your probably gonna face charges under this provision.

4. Possession of Document-Making Implements (§1028(a)(4))
This provision targets the tools used to create fake IDs. If you possess any document-making implement—such as a printer, laminator, hologram maker, or software designed to produce identification documents—with the knowlege it will be used to create false IDs, you’ve violated federal law. The goverment doesn’t need to prove you actually made any fake documents; posession of the tools with the requisite knowlege is enough. I’ve seen cases where defendants had commercial-grade printers and laminating machines in there homes, and prosecutors charged them based off this equipment alone.

5. Production, Transfer, or Possession of Authentication Features (§1028(a)(5))
Authentication features are the security elements built into official documents—holograms, watermarks, certification stamps, or similar features. Producing, transfering, or possessing these features without lawful authority is a seperate federal crime. This provision recognizes that authentication features themselfs have value to counterfeiters. Even if you haven’t created a complete fake ID, possessing the holograms or watermarks that would make it look authentic is illegal.

6. Possession of False or Stolen Documents (§1028(a)(6))
Knowingly possessing an identification document that is false or was stolen, without lawful authority and with intent to defraud, violates this subsection. This is broader then subsection (a)(3) because it explicitly covers both false AND stolen documents. If you have someone else’s real passport that you obtained illegally, this is the provision prosecutors will use against you.

7. Transfer or Use of Means of Identification (§1028(a)(7))
This is the core “identity theft” provision. It criminalizes knowingly transfering, possessing, or using, without lawful authority, a means of identification of another person with the intent to commit, aid, or abet any unlawful activity that constitutes a federal crime or a felony under state or local law. This subsection doesn’t require a fake document—using someone’s real Social Security number, credit card number, or other identifying information with criminal intent is enough. The range of conduct covered here is vast: from credit card fraud to immigration violations to terrorism-related offenses.

8. Trafficking in False Authentication Features (§1028(a)(8))
Trafficking in false authentication features for use in false identification documents is a federal crime. This provision targets the supply chain of counterfeit document production. If you sell or distribute the security features used to make fake IDs look real, your violating federal law even if you never produce or distribute actual fake IDs yourself.

9. Attempts and Conspiracies (§1028(a)(9))
Federal law makes it a crime to attempt or conspire to violate any of the above provisions. This means you can be convicted even if you never actually succeeded in producing, transfering, or using false identification documents. The goverment only needs to prove you took substantial steps toward committing the offense or that you entered into an agreement with others to violate the statute. Conspiracy charges are particularly common in identity theft cases involving multiple defendants.

10. Document Fraud in Connection with Identification Documents (§1028(a)(10))
This provision prohibits the production, transfer, or possession of any identification document or authentication feature that is or appears to be issued by or under the authority of the United States, with the knowlege that the document was stolen or produced without lawful authority. This subsection focuses on documents that purport to be genuine government-issued IDs but were obtained through fraud or theft.

18 USC 1028A: Aggravated Identity Theft and the 2-Year Mandatory Consecutive Sentence

If 18 USC 1028 is serious, then 18 USC 1028A is absolutley devastating. This statute, enacted in 2004 as part of the Identity Theft Penalty Enhancement Act, creates a sentencing enhancement for aggravated identity theft that carries a mandatory minimum 2-year prison sentance that must run consecutively to any other sentance imposed.

Let me be clear about what “mandatory consecutive” means. If your convicted under 18 USC 1028A, the judge has no discretion—you must serve atleast two additional years in federal prison, and those two years must be served after you complete whatever sentance you recieve for the underlying offense. There’s no parole in the federal system, no good-time credit that can reduce this sentance, and no possibility of concurrent sentencing. The statute literally prohibits the court from imposing a sentance below the mandatory minimum.

So when does 18 USC 1028A apply? The statute requires the goverment to prove you committed identity theft “during and in relation to” one of numerous predicate felonies listed in the law. The most common predicates include:

• Bank fraud (18 USC 1344)
• Wire fraud (18 USC 1343)
• Mail fraud (18 USC 1341)
• Immigration document fraud (18 USC 1546)
• Social Security fraud (42 USC 408)
• Theft of government property (18 USC 641)
• False personation (18 USC 912)
• Computer fraud (18 USC 1030)
• Passport fraud (18 USC 1542-1546)

Here’s a common scenario: Your charged with wire fraud for using stolen credit card numbers to make online purchases. If the goverment can prove you knowingly used another person’s credit card number (a means of identification), you’ve committed aggravated identity theft during and in relation to the wire fraud predicate. The result? Whatever sentance you recieve for the wire fraud plus a mandatory additional two years for the 1028A violation.

The “during and in relation to” requirement means the identity theft must be connected to the predicate offense—not just coincidentally occuring at the same time. Courts have interpretted this to require that the identity theft facilitated or was integral to the underlying crime. But prosecutors have been pretty sucessful in arguing this connection exists in most cases where stolen identification was used to commit fraud.

The mandatory nature of the 1028A sentance has been controversial. Defense attorneys have argued its overly harsh, particularly in cases where the identity theft was relatively minor compared to the underlying offense. But Congress designed it this way intentionally, believing that identity theft was under-punished and that mandatory minimums were neccessary to deter this conduct. Courts have consistantly upheld the constitutionality of the mandatory minimum, so defendants can’t challenge the sentance on that basis.

Critical Case Law: Flores-Figueroa and the Knowledge Requirement

The single most important case for anyone charged with aggravated identity theft under 18 USC 1028A is Flores-Figueroa v. United States, 556 U.S. 646 (2009). This Supreme Court decision fundamentally changed how prosecutors must prove aggravated identity theft cases, and it provides a crucial defense for many defendants.

The question in Flores-Figueroa was weather the goverment must prove the defendant knew the means of identification he used belonged to “another person.” The statute says its a crime to “knowingly transfer, possess, or use, without lawful authority, a means of identification of another person.” The issue was weather the word “knowingly” applies only to the transfer/possession/use, or weather it also applies to the “of another person” element.

The government argued it didn’t need to prove the defendant knew the identification belonged to another person—only that the defendant knowingly used identification and that, as a factual matter, the identification happened to belong to someone else. In other words, the goverment wanted strict liability for the “of another person” element.

The Supreme Court rejected the government’s argument unanimously. The Court held that the word “knowingly” applies to all the elements that follow it, including the “of another person” element. This means the goverment must prove beyond a reasonable doubt that the defendant knew the means of identification belonged to another person—not just that he knowingly used some identification.

Why does this matter? Look, here’s the deal: in many cases, defendants use fake or fraudulent identification without knowing weather it belongs to a real person. For example, if you create a completely fictitious Social Security number and use it on employment documents, you might not know that the number happens to be assigned to a real person. Under the government’s interprettion, you’d be guilty of aggravated identity theft. But after Flores-Figueroa, the prosecution must prove you knew the number belonged to another person.

The Court clarified that the goverment doesn’t need to prove the defendant knew the identification belonged to a specific real person or that he knew the victim’s name. The prosecution only needs to prove the defendant knew the means of identification belonged to “another person” as opposed to being fictitious or the defendant’s own information. But this is still a significant burden for prosecutors, and its created a defense in many cases where defendants used randomly generated or purchased identification without knowlege of the real person whose information they were using.

Another important case is Dubin v. United States, 599 U.S. 110 (2023), where the Supreme Court further clarified the “another person” requirement. The Court held that the goverment must prove the defendant used the means of identification “of another person” as charged in the indictment—meaning the identification must actually belong to a real person, not just be a fake name or number. If you make up a completely fictitious identity that doesn’t belong to anyone, that doesn’t qualify as aggravated identity theft under 1028A.

These cases has made it harder for prosecutors to secure 1028A convictions, and they’ve opened up defenses that didn’t exist before. If your charged with aggravated identity theft, your attorney should be examining weather the goverment can prove you had the requisite knowlege under Flores-Figueroa and weather the identification you used actually belonged to another person under Dubin.

Penalties for Violating 18 USC 1028: 15, 20, or 30 Years?

The penalties for identity theft under 18 USC 1028 are severe and vary depending on the specific circumstances of you’re offense. Understanding the sentancing framework is critical because the diffrence between a 5-year sentance and a 30-year sentance can come down to factors that prosecutors can easily allege.

Base Penalty: Up to 15 Years
For most violations of 18 USC 1028, the maximum sentance is 15 years imprisonment. This applies to producing, transfering, or possessing false identification documents with intent to defraud, as well as the use of another person’s means of identification to commit or facilitate a federal felony or state felony. The actual sentance within this 15-year maximum depends on the federal sentancing guidelines, which consider factors like the number of victims, the amount of financial loss, and the defendant’s criminal history.

Enhanced Penalty: Up to 20 Years
If the offense is commited to facilitate a federal crime of terrorism, the maximum sentance increases to 20 years. The definition of “federal crime of terrorism” is broad and includes any offense calculated to influence or affect government conduct by intimidation or coercion. This enhancement recognizes that identity theft used for terrorism purposes poses a greater threat then garden-variety fraud. Cases involving fake passports or identification documents used by individuals with terrorism connections can trigger this enhancement.

Maximum Penalty: Up to 30 Years
The most severe penalties under 18 USC 1028 apply when the offense involves certain aggravating factors. The sentance can be increased to a maximum of 30 years imprisonment if:

• The offense is commited to facilitate drug trafficking that is punishable by more then one year imprisonment;
• The offense is commited to facilitate a crime of violence; or
• The defendant has been previously convicted of identity theft or a similar offense.

These enhancements reflect Congress’s determination that identity theft used to facilitate serious crimes like drug trafficking or violence warrants more severe punishment. In practice, prosecutors regularily charge identity theft in connection with drug trafficking conspiracies, which can push defendants into this 30-year maximum range. Trust me on this—if your facing identity theft charges connected to any drug-related conduct, your exposure is significantly higher.

Mandatory Minimums Under 18 USC 1028A
As discussed above, conviction under 18 USC 1028A requires a mandatory consecutive 2-year prison sentance that must be added to whatever sentance is imposed for the underlying offense. There’s no way around this. The sentance can’t run concurrently, it can’t be reduced, and the judge has no discretion to impose a lesser sentance even if the circumstances warrant leniency.

But wait, there’s more. If the aggravated identity theft was commited to facilitate terrorism, the mandatory minimum increases from 2 years to 5 years consecutive. This means a terrorism-related identity theft case could result in 20 years for the base 1028 offense plus 5 mandatory consecutive years for the 1028A enhancement—a total of 25 years minimum.

Financial Penalties
In addition to imprisonment, defendants convicted under 18 USC 1028 face substantial financial penalties. The statute authorizes fines of up to $250,000 for individuals ($500,000 for organizations). Courts may also order restitution to victims for any financial losses caused by the identity theft. Given that identity theft cases often involve multiple victims and significant financial harm, restitution amounts can easily reach six or seven figures.

Supervised Release
After completing there prison sentance, defendants are subject to a term of supervised release (similar to probation). The length of supervised release depends on the sentance imposed but typically ranges from 3 to 5 years for felony identity theft convictions. Violations of supervised release conditions can result in additional prison time.

The bottom line? Your looking at serious prison time if convicted of federal identity theft. Even a first-time offender with no criminal history could recieve a multi-year sentance, and the mandatory minimums under 1028A make it impossible to avoid prison time if convicted of aggravated identity theft. The stakes couldn’t be higher, which is why mounting a aggressive defense is essential.

Common Defense Strategies in Federal Identity Theft Cases

Defending against federal identity theft charges requires a sophisticated understanding of both the statutes and the evidence the prosecution must present. While every case is unique, certain defense strategies appear regularly in 18 USC 1028 and 1028A prosecutions:

Lack of Knowledge
After Flores-Figueroa, the goverment must prove you knew the means of identification belonged to another person. If you didn’t have this knowlege—for example, if you believed you were using fictitious information or didn’t realize the identification you possessed was false—you lack the required mental state for conviction. This defense requires careful examination of what you actually knew at the time of the alleged offense. Did you know the Social Security number you used belonged to a real person? Did you know the ID was fake? Sometimes the evidence shows you were simply careless or negligent without having the actual knowlege required for a conviction.

No Intent to Defraud
Most subsections of 18 USC 1028 require proof of intent to defraud. If the prosecution can’t establish that you acted with this intent, the charges should be dismissed. For example, if you possessed false identification documents but had no intention of using them for any fraudulent purpose, you haven’t violated the statute. The challenge is that prosecutors often infer intent from circumstantial evidence—the number of documents you possessed, weather you’ve used fake IDs before, and so on. But if the evidence shows you had some other, lawful reason for possessing the documents, this defense can be effective.

Lawful Authority
Many provisions of 18 USC 1028 contain an exception for conduct undertaken with lawful authority. If you had permission to possess or use the identification documents in question, you haven’t violated federal law. This defense most commonly arises in employment contexts, where individuals might handle identification documents as part of there job duties. The key is documenting that you had proper authorization for whatever conduct prosecutors are alleging was criminal.

Fourth Amendment Violations
If law enforcement discovered evidence through an illegal search or seizure, that evidence may be suppressed, meaning the prosecution can’t use it at trial. Federal identity theft cases often involve searches of computers, cell phones, and physical premises. If the police didn’t have a proper warrant, or if the warrant was based on false or misleading information, or if the search exceeded the scope of the warrant, the evidence obtained may be inadmissible. Successfully suppressing key evidence can force the goverment to dismiss charges or offer a more favorable plea agreement.

Insufficient Evidence
The prosecution bears the burden of proving every element of the offense beyond a reasonable doubt. If the evidence is weak on any essential element—knowlege, intent, the nature of the documents, etc.—the defense can move for acquittal or push the case to trial where the goverment may fail to meet its burden. Sometimes the government’s case is based on assumptions or circumstantial evidence that doesn’t actually prove guilt. A skilled defense attorney knows how to identify these weaknesses and exploit them.

Mistaken Identity
In some cases, particularly those involving online conduct or large conspiracies, the real question is weather the defendant is actually the person who commited the charged acts. If the prosecution’s evidence is based on IP addresses, usernames, or other indirect evidence, there may be reasonable doubt about weather the defendant was truly the perpetrator. This defense requires demonstrating that someone else could have been responsible for the conduct at issue.

Entrapment
If goverment agents induced you to commit a crime you wouldn’t have otherwise commited, you may have an entrapment defense. This defense is difficult to establish because it requires showing both that the goverment created the opportunity for the crime and that you lacked predisposition to commit it. But in cases involving undercover operations or informants who played a significant role in the alleged offense, entrapment may be viable.

Why You Need Experienced Federal Defense Counsel: The Spodek Law Group Advantage

Federal identity theft prosecutions are complex, high-stakes cases that require sophisticated legal representation. The U.S. Attorney’s Office has virtually unlimited resources—experienced prosecutors, federal agents, forensic experts, and the full power of the federal goverment behind them. Facing these charges without experienced defense counsel is a reciepe for disaster.

The Spodek Law Group has succesfully defended clients against federal identity theft charges throughout the United States. Our attorneys understand the technical aspects of 18 USC 1028 and 1028A, including the critical case law like Flores-Figueroa that can make or break a case. We know how to challenge the government’s evidence, identify weaknesses in the prosecution’s case, and develop effective defense strategies tailored to the specific facts of each case.

What sets us apart is our willingness to take cases to trial when necesary. While many defense attorneys are quick to push clients toward plea agreements, we recognize that fighting the charges may be the best option. Federal prosecutors know we’re trial lawyers, and that knowlege often leads to better plea offers or even dismissal of charges. We’ve acheived favorable outcomes in identity theft cases by suppressing evidence, demonstrating lack of knowlege, and poking holes in the government’s proof at trial.

We also understand that federal identity theft charges often arise in the context of broader investigations into fraud, immigration violations, or other criminal activity. Our experience handling complex federal cases means we can see the bigger picture and anticipate how the identity theft charges fit into the government’s overall strategy. This insight is invaluable for developing a comprehensive defense that addresses all the charges you face, not just the identity theft allegations in isolation.

Time is of the essence in these cases. If your under investigation or have been charged with federal identity theft, you need to act now. The decisions you make in the early stages of the case—what you say to investigators, weather to cooperate, how to preserve evidence—can determine the outcome. We provide immediate representation to protect you’re rights from the moment your contacted by law enforcement.

Don’t face the federal goverment alone. Contact the Spodek Law Group today for a confidential consultation about your federal identity theft case. We represent clients nationwide and have the experience, resources, and commitment to fight for the best possible outcome in your case.

Conclusion: Understanding Your Rights and Options

Federal identity theft charges under 18 USC 1028 and 18 USC 1028A are among the most serious criminal allegations you can face. The penalties are severe—up to 30 years imprisonment, plus mandatory consecutive sentances for aggravated identity theft. But these charges are also defendable, particularly in light of the knowlege requirements established by the Supreme Court in Flores-Figueroa.

Weather your charged with producing false documents, possessing stolen identification, or using another person’s means of identification, understanding the elements the prosecution must prove is the first step toward mounting an effective defense. With experienced counsel, you can challenge the government’s evidence, assert Constitutional protections, and fight for your freedom.

If your facing federal identity theft charges, contact the Spodek Law Group immediately. Our experienced federal defense attorneys are ready to fight for you.

Call us today at (212) 300-5196 or visit our website at www.spodeklawgroup.com for a confidential consultation.