Last Updated on: 19th October 2023, 12:29 pm

Federal Aggravated Identity Theft: An In-Depth Look

Identity theft can be a scary crime that leaves victims feeling violated and exposed. In its most basic form, identity theft involves using someone else’s personal information without their consent to commit fraud or other crimes. The United States government takes identity theft very seriously and has passed laws to address it at the federal level.

One of the most serious identity theft crimes is known as aggravated identity theft. This article will take an in-depth look at federal aggravated identity theft – what it is, how it works, penalties, defenses, and more.

What is Aggravated Identity Theft?

Aggravated identity theft is defined in 18 U.S. Code § 1028A. In summary, it occurs when someone knowingly transfers, possesses, or uses the means of identification of another person without lawful authority during and in relation to the commission of certain felony crimes.

There are a few key aspects of aggravated identity theft:

• It involves the use of someone else’s personal information like their name, Social Security number, credit card number, etc. This is known legally as a “means of identification.”
• The use has to be done “knowingly” and “without lawful authority.” This means the person is fully aware they are using someone else’s identity and have no right to do so.
• It must occur during and in relation to the commission of another felony crime. Aggravated identity theft does not stand alone – it must be connected to an underlying felony.

The underlying felonies that can trigger an aggravated identity theft charge include crimes like theft, fraud, immigration violations, firearm offenses, and many others. There is a specific list of qualifying predicate felonies in the statute.

For example, if someone commits mail fraud and uses another person’s name and Social Security number on fraudulent documents furthering the mail fraud scheme, they may be charged with aggravated identity theft on top of mail fraud charges.

Penalties and Sentencing

Aggravated identity theft carries strict mandatory minimum penalties. Under 18 U.S. Code § 1028A(a)(1), the mandatory minimum sentence is 2 years in prison. The mandatory minimum is increased to 5 years in prison if the aggravated identity theft relates to a terrorism offense.

These mandatory minimums are significant because there is no possibility of reducing the sentence – judges have no discretion to lower the sentence below the mandatory minimum. The two or five year sentence also cannot run concurrently with any other sentence imposed for the predicate felony.

For example, if someone is convicted of bank fraud (with a sentencing range of 0-30 years) and aggravated identity theft related to that bank fraud, the judge must sentence them to at least two years in prison for the aggravated identity theft consecutive to (in addition to) whatever sentence is imposed for the bank fraud.

The mandatory nature of aggravated identity theft sentencing has been challenged but generally upheld by courts, including the Supreme Court.

Defenses

Fighting aggravated identity theft charges involves attacking the specific elements the government must prove:

1. The defendant knowingly transferred, possessed, or used a means of identification of another person
2. They did so without lawful authority
3. It was done during and in relation to an enumerated felony

Some potential defenses include:

• Lack of intent – Argue the defendant did not knowingly use someone else’s identity or did not understand it was unauthorized. This negates the “knowingly” element.
• Authorized use – For example, someone using a spouse’s credit card with permission. This negates the “without lawful authority” element.
• No underlying felony – If the predicate felony charge is defeated, overturned, or weakened, it may knock out the aggravated identity theft charge.
• Incidental use – Argue the identity theft was not sufficiently related to the underlying felony. For example, if someone used a fake name but their real Social Security number on a fraudulent document. This may negate the “during and in relation to” element.

The Supreme Court recently limited the scope of aggravated identity theft charges in Dubin v. United States. The court ruled that the identity theft must be central to carrying out the underlying felony, not just an incidental method of committing it. This raises the bar for prosecutors to prove the identity theft was sufficiently tied to the predicate felony.

Notable Cases

Here are some real-world examples of aggravated identity theft charges and prosecutions:

• In 2021, a Texas man was sentenced to over 3 years for aggravated identity theft and fraud related to COVID unemployment benefits. He used stolen personal information to apply for fraudulent benefits.
• A Florida man was sentenced to over 4 years for aggravated identity theft for his role in a scheme to steal and use retirement account information to apply for COVID-19 relief loans.
• In 2018, the DOJ announced charges against 34 members of an organized crime ring for aggravated identity theft, among other crimes. The defendants allegedly stole and used Social Security numbers to open fraudulent bank accounts.

These cases illustrate how aggravated identity theft charges often arise in connection with broader fraud schemes exploiting stolen personal information.

Prevention

For individuals, some tips to help prevent identity theft include:

• Checking your credit report regularly and reporting any suspicious activity
• Placing a credit freeze on your credit reports to block new accounts from being opened
• Using strong passwords and multi-factor authentication when possible
• Being cautious of phishing emails and calls asking for personal information
• Shredding documents with sensitive information before disposal

For policymakers, potential ways to combat aggravated identity theft include:

• Increasing penalties and enforcement resources to deter criminals
• Passing data privacy and protection regulations to safeguard personal data
• Improving screening of new account applications to detect fraudulent use of identities
• Creating public awareness campaigns to educate the public on prevention

A combination of public vigilance, private sector safeguards, and government policy has the best chance at reducing aggravated identity theft and its impacts.

Conclusion

Aggravated identity theft is a serious federal crime that occurs when someone knowingly uses another person’s identity without authorization during and in relation to a predicate felony offense. It carries strict mandatory minimum sentences of 2-5 years in prison on top of penalties for the underlying felony. Defending against aggravated identity theft charges requires attacking the specific elements the government must prove. Prevention is key to reducing the prevalence of aggravated identity theft through a combination of individual vigilance, private sector data security measures, and public policy focused on deterrence, enforcement, and education.