Conspiracy to Use Identification Information (18 U.S.C. 1028(a)(7); 18 U.S.C. 371)

Last Updated on: 1st June 2025, 03:36 am

When Someone Else’s Name Becomes Your Federal Crime: Understanding Conspiracy to Use Identification Information Under 18 U.S.C. 1028(a)(7) and 371

If you’re reading this, chances are the FBI has already knocked on your door, or you know they’re coming. Maybe you got involved with people using fake IDs to file tax returns, maybe you helped someone open bank accounts with stolen social security numbers, or maybe you just knew about it and didn’t stop it. Whatever brought you here, you’re facing serious federal charges that combine two of the government’s favorite weapons: conspiracy law and identity theft statutes.

James Mitchell from Detroit was just a tax preparer trying to make extra money during tax season back in 2023. His friend approached him with a “business opportunity” – they had access to stolen social security numbers and needed someone who knew how to file returns. James thought he was being smart, he never touched the stolen identities himself, never filed a single fraudulent return. He just introduced his friend to another tax preparer and took a small finder’s fee. Six months later, federal agents arrested him for conspiracy to commit identity fraud. He’s now serving 37 months in federal prison, all because of a few text messages where he discussed the scheme. The other tax preparer? He cooperated with the government and got probation. The Department of Justice takes these cases extremely seriously, and they’re getting better at prosecuting them every year.

**The Government’s Two-Headed Monster: How 18 USC 371 Meets 1028(a)(7)**

The thing that makes these charges so dangerous – prosecutors don’t need to prove you actually used anyone’s identification. Under 18 U.S.C. § 371, conspiracy charges only require two things: an agreement between two or more people to commit a crime, and one overt act in furtherance of that conspiracy.

That overt act can be as simple as a phone call, a text message, or even a Google search. The conspiracy statute carries up to 5 years in federal prison, but that’s just the beginning of your problems. The real teeth come from 18 U.S.C. § 1028(a)(7), which makes it a federal crime to knowingly use,without lawful authority, a means of identification of another person with intent to commit any unlawful activity that constitutes a federal crime. When prosecutors combine this with conspiracy charges, they’re telling the jury: “These defendants agreed to use stolen identities, and they took steps to do it.” The identification fraud statute was strengthened in 2004 as part of the Identity Theft Penalty Enhancement Act, and since then, prosecutors have been using it like a sledgehammer against anyone involved in identity-related schemes. The maximum sentence jumps from 5 years to 15 years when you’re dealing with identification documents.

What most people don’t understand is how broadly the government defines “means of identification.” It’s not just fake driver’s licenses or passports. A means of identification includes names, social security numbers, dates of birth, government-issued ID numbers, credit card numbers, bank account numbers, biometric data, even electronic signatures. I’ve seen cases where defendants were shocked to learn that using someone’s name and birthdate from Facebook to answer security questions counted as using identification information. The statute covers it all, and prosecutors know how to use every definition to their advantage.

Following the Digital Breadcrumbs of Your Conspiracy

The government’s case against you probably started with digital evidence you didn’t even know existed. In today’s world, every conspiracy leaves a trail of electronic breadcrumbs that federal investigators follow like bloodhounds. That WhatsApp message where you said “I know a guy who can help with those numbers”? That’s evidence of the conspiracy agreement. The Venmo payment with the memo “for the thing”? That’s evidence of the overt act. The Google search for “how to verify SSN online”? That shows intent and knowledge.

I recently defended a client who thought he was being careful by using encrypted messaging apps. He used Signal, deleted messages after reading them, and never saved any contacts under real names. But here’s what he didn’t know – his co-conspirator was taking screenshots of every conversation and saving them to his iCloud. When the FBI executed a search warrant on the co-conspirator’s account, they found six months of deleted messages perfectly preserved. My client learned the hard way that in federal conspiracy cases, you’re only as secure as your least careful co-conspirator. The sophistication of federal investigations into identity fraud conspiracies has exploded in recent years, the FBI’s Cyber Division now uses advanced data analytics to identify patterns in seemingly unrelated identity theft cases. They look for common IP addresses, similar banking patterns, shared phone numbers, even linguistic analysis of written communications. One case I handled involved the FBI identifying a conspiracy ring because all the fake tax returns used the same unusual spelling error. They traced that error back through dozens of returns, identified the preparer, and unraveled an entire network of conspirators across three states. By the time they made arrests, they had 18 months of surveillance, 50,000 pages of financial records, and testimony from four cooperating witnesses.

**The Overt Act That Nobody Thinks About**

In federal conspiracy law, the overt act requirement is a joke. It’s such a low bar that prosecutors can almost always find something.

You don’t need to actually use someone’s identity, you don’t need to succeed in any fraud, you don’t even need to come close. According to the Department of Justice’s own manual, an overt act can be “any act, however innocent in itself, done in furtherance of the conspiracy.”

I’ve seen overt acts that would shock you with their simplicity. In one case, the overt act was a defendant googling “how to check if SSN is valid.” In another,it was buying a burner phone at Walmart. One client was charged based on an overt act of attending a meeting where the conspiracy was discussed – he didn’t say anything, didn’t agree to anything, just showed up. But because he knew what the meeting was about and attended anyway, prosecutors argued that was his overt act. The jury agreed, and he got 41 months in federal prison.

The most dangerous overt acts are the ones that seem helpful or innocent at the time, a client of mine worked at a cell phone store and his childhood friend asked him to look up some customer information. Just a quick search in the company database, took 30 seconds. My client didn’t know his friend was involved in an identity theft ring, didn’t know the information would be used for fraud, thought he was just helping out an old buddy. That 30-second search became the overt act in a conspiracy charge that carried a 10-year maximum sentence. We eventually got the charges reduced, but only after my client spent 14 months fighting the case and spent his entire retirement savings on legal fees.

**When Your Co-Conspirator Becomes the Government’s Star Witness**

In conspiracy cases, your co-defendants are not your friends. The moment those handcuffs click, it becomes every person for themselves. The federal system is designed to reward cooperation, and the rewards are substantial. I’ve seen defendants facing 15 years get sentences of probation because they were the first to flip. Meanwhile, the person who stays loyal and refuses to cooperate gets the full weight of the federal sentencing guidelines. The mathematics of cooperation are brutal, under the federal sentencing guidelines, substantial assistance can reduce a sentence by 50% or more. If you’re looking at 10 years and your co-conspirator is looking at 10 years, the first person to cooperate might get 2-3 years while the other gets 8-10 years. This creates what prosecutors call “the race to the courthouse” – whoever cooperates first gets the best deal. I’ve literally had cases where co-defendants were arrested together, transported to jail in the same van, and by the time they got to booking, one had already agreed to cooperate against the other.

The government’s use of cooperating witnesses in identity fraud conspiracies is particularly effective because these cases often involve complex networks of people, each conspirator typically only knows their direct contacts, not the entire organization. So when someone flips, they can provide information about both the people above them and below them in the chain. This creates a domino effect – once one person cooperates, everyone they implicate faces pressure to cooperate against others. I represented a defendant who was seven levels removed from the actual identity theft, he thought he was just investing in a legitimate tax preparation business. But through a chain of cooperating witnesses, each trying to reduce their own sentence, the conspiracy charge reached all the way to him.

**Defense Strategies That Actually Work (Sometimes)**

Fighting federal conspiracy charges is an uphill battle. The conviction rate in federal court is over 95%, and conspiracy cases are particularly difficult because the government doesn’t need to prove much.

But difficult doesn’t mean impossible, and I’ve had success with several defense strategies that can work if the facts support them. The first defense we always examine is challenging the agreement element, conspiracy requires a meeting of the minds – you need to actually agree to commit the crime. Simply knowing about criminal activity isn’t enough. I defended a woman whose boyfriend was running an identity theft ring out of their apartment. She knew something illegal was happening, she saw the fake IDs, she knew he had other people’s mail. But we successfully argued that knowledge isn’t agreement. She never agreed to participate, never took any action to further the conspiracy, and critically, she had made statements to friends expressing disapproval of his activities. The jury acquitted her of conspiracy charges, though she was convicted of a lesser charge of misprision of felony for not reporting the crimes. Another defense that can work is withdrawal from the conspiracy, but the timing here is everything, and I mean everything. Under federal law, you can withdraw from a conspiracy, but you must take affirmative steps to defeat or disavow the conspiracy’s purpose. It’s not enough to just stop participating – you need to either inform law enforcement or communicate your withdrawal to all co-conspirators. One client successfully withdrew from a conspiracy by sending a group text to all involved parties stating he was out and would report them if they continued. He then kept records of cutting all contact. When arrests came 8 months later, we could prove he had withdrawn before most of the overt acts occurred. He still faced charges for his earlier involvement, but avoided the enhanced sentences that came with the later, more serious crimes.

**Sentencing Enhancements That Triple Your Time**

If you’re convicted of conspiracy to use identification information, the base sentence is just the beginning of your problems. The federal sentencing guidelines include numerous enhancements that can double or triple your sentence, and prosecutors know exactly how to trigger each one. These aren’t minor adjustments – we’re talking about years of additional prison time based on factors you might not have even considered. The number of victims enhancement is particularly brutal in identity fraud cases, under U.S.S.G. § 2B1.1, if your conspiracy involved 10 or more victims, you get a 2-level enhancement. 50 or more victims? That’s 4 levels. 250 or more? 6 levels. Each level typically translates to several additional months in prison.

In identity fraud conspiracies, every person whose information was used counts as a victim, even if they never lost money.

I had a case where my client helped transfer a database of customer information. He never used any of it, didn’t even look at individual records. But because the database contained 5,000 names, he faced the maximum victim enhancement. His sentence went from a guidelines range of 18-24 months to 51-63 months, just because of the number of potential victims. The sophisticated means enhancement under U.S.S.G. § 2B1.1(b)(10) adds another 2 levels if the offense “involved sophisticated means.” In today’s digital world, prosecutors argue almost everything is sophisticated. Used a VPN? Sophisticated means. Created fake email accounts? Sophisticated means. Used cryptocurrency? Definitely sophisticated means. I recently had a case where the sophisticated means enhancement was applied because my client used the “private browsing” mode on his web browser. The government argued this showed consciousness of guilt and an attempt to hide his digital footprint. The judge agreed,and those two levels added 8 months to his sentence.

**What Happens After the FBI Knocks**

When federal agents show up at your door investigating conspiracy and identity fraud charges, every decision you make in the next few hours can affect the rest of your life. I’ve seen too many clients talk themselves into additional charges or give the government evidence they didn’t have. By the time the FBI knocks, they’ve likely been investigating for months or even years, they probably already have search warrants for your electronic accounts, they’ve analyzed your financial records, and they may have been monitoring your communications. The questions they ask aren’t to learn information – they’re to lock you into statements they can later prove are false. One client told agents he “didn’t know” his business partner was using fake identities. The FBI then showed him text messages where he discussed the fake IDs in detail. That “simple lie” turned into an additional charge for making false statements to federal agents under 18 U.S.C. § 1001, adding another 5 years to his potential sentence.

Pre-indictment negotiations are where cases can be won or lost, and this is where having an experienced federal defense lawyer matters most. The period between when you learn you’re under investigation and when charges are filed is crucial. Sometimes we can convince prosecutors not to file charges at all. Other times we can negotiate for lesser charges or cooperation agreements before an indictment locks in the most serious charges.

I recently kept a client from being charged in a 47-defendant conspiracy case by demonstrating his minimal involvement early in the investigation. While his co-conspirators faced mandatory minimums and decade-long sentences, we negotiated a deferred prosecution agreement with no jail time. But this only worked because we acted fast, presented mitigating evidence early, and maintained credibility with the prosecutor’s office. One final thing people don’t realize – asset forfeiture in identity fraud conspiracies can happen before you’re even convicted. Under federal forfeiture laws, the government can freeze and seize any assets they believe are connected to the conspiracy. This includes bank accounts, cars, houses, even legitimate business assets if they think criminal proceeds were commingled. I’ve had clients unable to pay for their defense because the government froze all their assets based on probable cause. The Department of Justice’s Asset Forfeiture Division is aggressive in these cases, and they can make your life miserable while you’re trying to fight the charges. We often have to file separate motions just to release enough funds for living expenses and legal fees, and even then, every dollar spent requires court approval.

If you’re facing conspiracy charges related to identity fraud, you need to understand that these cases move fast and the stakes are incredibly high. The combination of 18 U.S.C. § 371 and § 1028(a)(7) gives prosecutors powerful tools, and they know how to use them. But with the right defense strategy and an attorney who understands both the law and the technology involved, it’s possible to achieve better outcomes than you might think. The key is acting quickly, making smart decisions, and never underestimating the seriousness of federal conspiracy charges. At Spodek Law Group, we have experience defending complex federal conspiracy and identity fraud cases nationwide, we understand the technology, we know the prosecutors’ tactics, and most importantly, we know how to fight back.