Allegations Of Aggravated Identity Theft

Aggravated Identity Theft – 18 U.S.C. § 1028A

Simply stated, aggravated identity theft occurs when someone knowingly transfers, possesses, or uses without permission, identification of another person, and then uses that identification during and/or in relation to the act of a particular felony violation.  Aggravated identity theft is different than identity theft because aggravated identity theft involves stealing another person’s identity and then committing a crime.  The government’s goal was to supplement and strengthen the existing federal laws regarding identity theft, a crime that victimizes millions of Americans each year.  Some sources estimate that between 12 and 16 million Americans were victimized in 2012 alone.

In 1998, Congress enacted the Identity Theft and Assumption Deterrence Act, which describe the offense of identity theft in statute 18 U.S.C. § 1028.  That statute prohibits the use of another person’s identifying information in connection with any federal crime, or any state or local felony.  However, in 2004, Congress enacted a second identity theft statute: 18 U.S.C. § 1028A, entitled "Aggravated Identity Theft." This statute prohibits identity theft in connection with certain enumerated federal crimes or identity theft in connection with terrorism offenses.

In addition to the monetary harm, Congress was concerned that defendants who committed identity theft were not being adequately punished for all of the non-monetary harm they also caused their victims.  As a result, the aggravated identity theft statute mandates a prison term to be served consecutively; the sentence for the felony crime committed, plus a mandatory additional 2 years.  If the offense relates to terrorism in nature, the prison sentence is the punishment for the felony crime committed, plus an additional mandatory 5 years.

Remember, the government has to plead and prove the two elements: identity was stolen, and a crime was committed.  What if a person has an identifying document in his possession but he doesn’t use it?  Arguably, he has not used it/possessed it/ or transferred it during and in relation to the crime.  There is very little case law about this element.  Sometimes a lawyer can get an Acquittal if there is little or no evidence about "during and in relation to a crime."

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Successfully handling federal charges requires an extensive understanding of federal law and an even deeper understanding of how to apply it to your specific situation. At McKellar & Easter, Attorneys at Law, our lead attorney, Norman D. McKellar, has the experience and the understanding of the law you need to develop a strong defense strategy against identity theft charges.

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