Two Federal statutes address the crime of identity theft. The first is found in 18 USC 1028 or the Identity Theft and Assumption Deterrent Act (1998). The original identity theft statute covers instances where one used the identifying information of another in connection with any federal crime or any state or local felony. In 2004, this law was expanded to include a aggravated offense under the original theft statute. Under 18 USC 1028A prohibits the use of identifying information belonging to another in two instances: first, in regards to certain federal offenses; and second, in relation to terrorism offenses.

When is Best Time to Act?:

Investigations by the authorities uncovering acts of aggravated identity theft can take years to conclude depending on the complexity of the scheme involved and the behavior of those involved. Due to the lengthy nature of the investigations that can lead to an indictment it is important to seek experienced counsel as soon as you become aware that you could potentially be subject of the investigation and/or are under threat of indictment.

Types of Identity Theft Crimes:

Crimes that trigger prosecution under the aggravated identity theft statute fall under a number of categories including: • Theft of public money or property (18 USC 641) • Theft or embezzlement by a bank officer or employee (18 USC 656) • Theft from employee benefit plans (18 USC 664) • False statements made in connection with the acquisition of a firearm (18 USC 922(a)(6)) • Mail, bank, and wire fraud (18 USC 1341, 1343, and 1344) • Crimes related to misrepresentation of citizenship or documents related to immigration status • Obtaining customer information by false pretenses (5 USC 6821) • False statements relating to Social Security programs (42 USC 408, 1011, 1307(b), 1320a–7b (a), and 1383a)

Identity Theft Criminal Schemes:

Criminal schemes involving violations of the Aggravated Identity Theft statute often involve the use of a false identity to obtain a financial benefit such as filing the tax returns of another to obtain a refund, filing false claims with the Social Security Administration or falsifying official government documents to obtain benefits under Federal Immigration laws.

Related Crimes:

The predicate crimes for aggravated identity theft include embezzlement, falsifying citizenship documents, false statements made to acquire a firearm, general fraud, mail fraud, bank fraud, wire fraud, passport fraud, Social Security fraud, and various immigration offenses. The latter category has increased in frequency over the last five years with federal authorities increasing efforts to prosecute alien nationals residing in the United States based on the use of falsified documents.

Regulations/Legislation:

18 USC 1028A (a) Offenses.— (1) In general.— Whoever, during and in relation to any felony violation enumerated in subsection (c), knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person shall, in addition to the punishment provided for such felony, be sentenced to a term of imprisonment of 2 years.

Penalties & Punishment:

A conviction for Aggravated identity theft carries a mandatory two-year sentence. This sentence must be served consecutively to any other sentence. For example, a Defendant receives a sentence of two years for Aggravated Identity Theft, and three years on a separate offense, will serve a total of five years. 18 USC 1028A requires federal courts to sentence the defendant to two years prison to be served after the sentence for the underlying crime. Section 1028(b) provides rules for sentencing in these cases.

Successful Defenses:

Defenses to a charges stemming from Aggravated Identity Theft can involve challenging evidence that te alleged identity theft occurred in relation to the predicate crimes listed in Subsection (c) of the statute or that the Defendant “knowingly” acted in violation of the statute.

Differences between State & Federal Charges:

New York law does not specify a specific crime of aggravated identity theft as under Federal law, rather it specifies three separate offense classifications. The New York Identity Theft Statute reads as follows: S 190.78 Identity theft in the third degree. A person is guilty of identity theft in the third degree when he or she knowingly and with intent to defraud assumes the identity of another person by presenting himself or herself as that other person, or by acting as that other person or by using personal identifying information of that other person, and thereby: 1. obtains goods, money, property or services or uses credit in the name of such other person or causes financial loss to such person or to another person or persons; or 2. commits a class A misdemeanor or higher level crime. Identity theft in the third degree is a class A misdemeanor. S 190.79 Identity theft in the second degree. A person is guilty of identify theft in the second degree when he or she knowingly and with intent to defraud assumes the identity of another person by presenting himself or herself as that other person, or by acting as that other person or by using personal identifying information of that other person, and thereby: 1. obtains goods, money, property or services or uses credit in the name of such other person in an aggregate amount that exceeds five hundred dollars; or 2. causes financial loss to such person or to another person or persons in an aggregate amount that exceeds five hundred dollars; or 3. commits or attempts to commit a felony or acts as an accessory to the commission of a felony; or 4. commits the crime of identity theft in the third degree as defined in section 190.78 of this article and has been previously convicted within the last five years of identity theft in the third degree as defined in section 190.78, identity theft in the second degree as defined in this section, identity theft in the first degree as defined in section 190.80, unlawful possession of personal identification information in the third degree as defined in section 190.81, unlawful possession of personal identification information in the second degree as defined in section 190.82, unlawful possession of personal identification information in the first degree as defined in section 190.83, unlawful possession of a skimmer device in the second degree as defined in section 190.85, unlawful possession of a skimmer device in the first degree as defined in section 190.86, grand larceny in the fourth degree as defined in section 155.30, grand larceny in the third degree as defined in section 155.35, grand larceny in the second degree as defined in section 155.40 or grand larceny in the first degree as defined in section 155.42 of this chapter. Identity theft in the second degree is a class E felony. S 190.80 Identity theft in the first degree. A person is guilty of identity theft in the first degree when he or she knowingly and with intent to defraud assumes the identity of another person by presenting himself or herself as that other person, or by acting as that other person or by using personal identifying information of that other person, and thereby: 1. obtains goods, money, property or services or uses credit in the name of such other person in an aggregate amount that exceeds two thousand dollars; or 2. causes financial loss to such person or to another person or persons in an aggregate amount that exceeds two thousand dollars; or 3. commits or attempts to commit a class D felony or higher level crime or acts as an accessory in the commission of a class D or higher level felony; or 4. commits the crime of identity theft in the second degree as defined in section 190.79 of this article and has been previously convicted within the last five years of identity theft in the third degree as defined in section 190.78, identity theft in the second degree as defined in section 190.79, identity theft in the first degree as defined in this section, unlawful possession of personal identification information in the third degree as defined in section 190.81, unlawful possession of personal identification information in the second degree as defined in section 190.82, unlawful possession of personal identification information in the first degree as defined in section 190.83, unlawful possession of a skimmer device in the second degree as defined in section 190.85, unlawful possession of a skimmer device in the first degree as defined in section 190.86, grand larceny in the fourth degree as defined in section 155.30, grand larceny in the third degree as defined in section 155.35, grand larceny in the second degree as defined in section 155.40 or grand larceny in the first degree as defined in section 155.42 of this chapter. Identity theft in the first degree is a class D felony.