In simple terms, Federal Aggravated Identity Theft charge involves the transfer, possession, or use of identification of another person during and in relation to the commission of another crime without the individual’s permission. The federal Aggravated Identity Theft charge became law in 2004 and is codified in Section 1028A of Title 18 of United States Code.

There are two different Federal Aggravated Identity Theft Charges codified in 18 U.S.C. Section 1028A. Specifically, they are:

  • Aggravated Identity Theft (Felony), AND
  • Aggravated Identity Theft (Terrorism Offense).

The difference in these two charges is explained below.

Federal Aggravated Identity Theft Charges Explained

Federal Aggravated Identity Theft (General) is codified in 18 U.S.C. Section 1028A(a), while Federal Aggravated Identity Theft (Terrorism Offense) is codified in 18 U.S.C. Section 1028A(b).

Aggravated Identity Theft (Felony)

In order to convict an individual of Federal Aggravated Identity Theft (Felony) under 18 U.S.C. Section 1028A(a), the Government must prove the following elements:

  1. Knowing transfer, possession or use,
  2. Without lawful authority,
  3. A means of identification,
  4. In relation to any felony enumerated in subsection (c) of 18 U.S.C. 1028(a).

Additionally, although not specifically an element of the charge, knowledge that a means of identification belonged to another individual must also be established by the Government. In 2009, the U.S. Supreme Court held that this additional element must be proven by federal prosecutors in Flores-Figueroa v. United States, 556 U.S. 646 (2009).

Elements of the designated felony will also be submitted to the jury, as in order to convict someone of Aggravated Identity Theft, the jury must also determine that a designated felony (or terrorism offense) was committed.

Which Felonies Does This Charge Apply to?

Federal Aggravated Identity Theft requires the commission of a felony listed in 18 U.S.C. 1028A(c). These include felonies relating to:

  1. Theft of public money, property or rewards (18 U.S.C. Section 641);
  2. Theft, embezzlement, or misapplication by bank officer (18 U.S.C. 656);
  3. Theft from employee benefit plans (18 U.S.C. 664);
  4. False personation of citizenship (18 U.S.C. 911);
  5. False statements in connection with the acquisition of a firearm (18 U.S.C. 922(a)(6));
  6. Fraud and false statements (18 U.S.C. Section 1028(a) other than Section 1028(a)(7));
  7. Mail fraud, bank fraud, wire fraud (18 U.S.C. Chapter 63)
  8. Nationality and Citizenship (18 U.S.C. Chapter 69);
  9. Passports and Visas (18 U.S.C. Chapter 75);
  10. Obtaining customer information by false pretenses (15 U.S.C. 6823);
  11. Willfully failing leave the United States after deportation and creating a counterfeit alien registration card (8 U.S.C. 1253 and 1306);
  12. Any provision contained in Chapter 8 of Title II of Immigration and Nationality Act (8 U.S.C. 1321);
  13. False statements relating to programs under the Social Security Act.

Aggravated Identity Theft (Terrorism Offense)

A rather infrequently used charge is Aggravated Identity Theft based on a predicate terrorism offense. A conviction for Aggravated Identity Theft relating to the terrorism offense requires the Government to prove the following elements beyond a reasonable doubt:

  1. During and in relation to any felony listed in 2332b(g)(5)(B)
  2. Knowingly transfers, possesses, or uses,
  3. Without lawful authority,
  4. A means of identification of another person or a false identification document.

Which Felonies Does This Charge Apply to?

Aggravated Identity Theft requires a commission of a terrorism offense, which is a felony, listed in 2332b(g)(5)(B). For this charge, commission of one of the following felonies is required:

  1. Destruction of aircraft or aircraft facilities (18 U.S.C. Section 32);
  2. Violence at international airports (18 U.S.C. 37);
  3. Arson within special maritime and territorial jurisdiction (18 U.S.C. 81);
  4. Biological weapons (18 U.S.C. 175 or 18 U.S.C. 175b);
  5. Variola virus (18 U.S.C. 175c), Chemical weapons (18 U.S.C. 229);
  6. Congressional, cabinet, and Supreme Court assassination and kidnaping (18 U.S.C. 351 subsection (a), (b), (c), or (d));
  7. Nuclear materials (18 U.S.C. 831);
  8. Participation in nuclear and weapons of mass destruction threats to the United States (18 U.S.C. 832);
  9. Plastic explosives (18 U.S.C. 842(m) or (n));
  10. Arson and bombing of Government property risking or causing death (18 U.S.C. 844(f)(2) or (3));
  11. Arson and bombing of property used in interstate commerce (18 U.S.C. 844(i));
  12. Killing or attempted killing during an attack on a Federal facility with a dangerous weapon (18 U.S.C. 930(c));
  13. Conspiracy to murder, kidnap, or maim persons abroad (18 U.S.C. 956(a)(1));
  14. Protection of computers (18 U.S.C. 1030(a)(1));
  15. Protection of computers (18 U.S.C. 1030(a)(5)(A));
  16. Killing or attempted killing of officers and employees of the United States (18 U.S.C. 1114);
  17. Murder or manslaughter of foreign officials, official guests, or internationally protected persons (18 U.S.C. 1116);
  18. Hostage taking (18 U.S.C. 1203);
  19. Government property or contracts (18 U.S.C. 1361);
  20. Destruction of communication lines, stations, or systems (18 U.S.C. 1362);
  21. Injury to buildings or property within special maritime and territorial jurisdiction of the United States (18 U.S.C. 13630;
  22. Destruction of an energy facility (18 U.S.C. 1366(a));
  23. Presidential and Presidential staff assassination and kidnaping (18 U.S.C. 1751(a), (b), (c), or (d);
  24. Terrorist attacks and other acts of violence against railroad carriers and against mass transportation systems on land, on water, or through the air (18 U.S.C. 1992);
  25. Destruction of national defense materials, premises, or utilities (18 U.S.C. 2155);
  26. National defense material, premises, or utilities (18 U.S.C. 2156);
  27. Violence against maritime navigation (18 U.S.C. 2280) and Maritime safety (18 U.S.C. 2280a);
  28. Violence against maritime fixed platforms (18 U.S.C. 2281 through 2281a);
  29. Certain homicides and other violence against United States nationals occurring outside of the United States (18 U.S.C. 2332);
  30. Use of weapons of mass destruction (18 U.S.C. 2332a);
  31. Acts of terrorism transcending national boundaries (18 U.S.C. 2332b);
  32. Bombing of public places and facilities (18 U.S.C. 2332f);
  33. Missile systems designed to destroy aircraft (18 U.S.C. 2332g), Radiological dispersal devices (18 U.S.C. 2332h);
  34. Acts of nuclear terrorism (18 U.S.C. 2332i);
  35. Harboring terrorists (18 U.S.C. 2339);
  36. Providing material support to terrorists (18 U.S.C. 2339A);
  37. Providing material support to terrorist organizations (18 U.S.C. 2339B), Financing of terrorism (18 U.S.C. 2339C);
  38. Military-type training from a foreign terrorist organization (18 U.S.C. 2339D);
  39. Torture (18 U.S.C. 2340A);
  40. Prohibitions governing atomic weapons (18 U.S.C. sections 92);
  41. Sabotage of nuclear facilities or fuel of the Atomic Energy Act of 1954. (42 U.S.C. 2122 or 2284);
  42. Aircraft piracy (18 U.S.C. 46502), Assault on a flight crew with a dangerous weapon (the second sentence of 18 U.S.C. Section 46504), Explosive or incendiary devices, or endangerment of human life by means of weapons, on aircraft (18 U.S.C. section 46505(b)(3) or (c));
  43. Acts on aircraft if homicide or attempted homicide is involved (18 U.S.C. 46506);
  44. Destruction of interstate gas or hazardous liquid pipeline facility (49 U.S.C. 60123(b));
  45. Narco-terrorism (Section 1010A of the Controlled Substances Import and Export Act).

Can Corporations Be Prosecuted for Federal Identity Theft?

Federal Aggravated Identity Theft under 18 U.S.C. 1028A only applies to individuals, rather than corporations. As this charge is punishable only by imprisonment, and not a fine, corporations cannot be prosecuted for federal aggravated identity theft.

Legal Definitions of Aggravated Identity Theft Terms

Terms used in the federal Aggravated Identity Theft charge have special legal definitions.

Means of Identification

The definition of “Means of Identification” for Federal Aggravated Identity Theft comes from 18 U.S.C. 1028(d)(7). Under this statute, “means of identification” is defined as “any name or number that may be used, alone or in conjunction with any other information, to identify a specific individual.” Means of identification examples are:

  • Name
  • Social security number
  • Date of birth
  • Official state or government issued driver’s license or identification number
  • Alien registration number
  • Government passport number
  • Employer or taxpayer identification number
  • Unique biometric data, such as fingerprint, voice print, retina, or it is image, or other unique physical representation
  • Unique electronic identification number, address, or routing code
  • Telecommunication identifying information or access device.

Another Person

Definition of “Another Person” under Federal Aggravated Identity charge applies to both living and deceased persons.

In Relation to

There is no legal definition of the term “in relation to” in the federal aggravated identity theft statute itself. The definition comes from the Court’s pattern criminal jury instructions and provides that a person transfers, possesses uses a means of identification “in relation to” a crime if it had a purpose, role, or effect with respect to the offense. It also means that the transfer, possession, use of the means of identification had a connection to or relationship with the offense.

Sentencing for Aggravated Identity Theft

Aggravated Identity Theft Under 18 U.S.C. 1028A Has a Flat Sentence

Aggravated Identity Theft under 18 U.S.C. 1028A, has rather unusual sentencing as compared to other federal crimes. Unlike vast majority of federal charges, it has a flat sentence. Federal Aggravated Identity theft is punishable by 24 months for a predicate felony offense, or 60 months if the offense involves federal terrorism.

Consecutive Sentencing for Aggravated Identity Theft

The sentence for Aggravated Identity Theft runs consecutively to the sentence on other charges. Meaning, if an individual is convicted of federal Aggravated Identity Theft and another charge, first the individual must serve the sentence for the other charge. Then, the individual must serve either 24 or 60 months for the federal Aggravated Identity Theft under 18 U.S.C. 1028A.

This is different from other federal crimes, because multiple sentence on other crimes are usually served concurrently. This means at the same time.

Example of Concurrent and Consecutive Sentencing

Let’s say Anne is convicted of Crime A and Crime B in federal court. Judge sentences Anne to 12 months on Crime A and 24 months on Crime B. Anne will serve a total of 24 months, because the sentences for Crimes A and B will run at the same time, or concurrently.

However, let’s say Crime B is Aggravated Identity Theft under 18 U.S.C. 1028A. Similarly, Judge sentences Anne to 12 months on Crime A and 24 months on Crime B, which is Aggravated Identity Theft in this hypothetical. Sentence on Crime B must run consecutively to the sentence on Crime A, since Crime B is federal Aggravated Identity Theft. Therefore, the sentence on Crime B will start after the completion of sentence on Crime A. Anne will therefore serve a sentence of 36 months for Crime A and Crime B.

Contact Federal Identity Theft Attorneys Today

If you or your loved one has been charged with federal identity theft, you need experienced federal counsel by your side. Contact us today for a consultation.