A Guide to Aggravated Identity Fraud

What Is the Difference Between Aggravated Identity Fraud and “Regular” Identity Theft?

Identity theft and aggravated identity fraud involve the fraudulent use of someone’s identity. However, there are significant distinctions between the two:

Type of the Offense

Identity theft refers to the unauthorized acquisition and use of an individual’s information. It might be for financial gain or other fraudulent purposes. It can include the theft of information and documents, such as:

• Identification cards

• Personal information

• Credit cards and credit card numbers

• Social Security numbers.

Such documents and information can be used to establish fraudulent accounts or make unauthorized purchases.

In contrast, aggravated identity fraud involves using a stolen identity to commit felony violations. Usually, these other crimes are committed to deceive law enforcement. A more severe punishment might also be imposed for crimes committed with stolen identities.

Legal Classification

Identity theft incorporates a variety of identity-related crimes. It may be prosecuted under state and federal laws depending on the circumstances.

In contrast, federal law recognizes aggravated identity theft as a distinct offense. As such, it is a different crime from ordinary identity theft, as it is always associated with a federal offense.

Penalties

The penalties for identity theft vary by jurisdiction and crime severity. They can consist of fines, victim restitution, and imprisonment.

An individual who commits aggravated identity fraud faces a minimum mandatory sentence of two years. If the crime involves terrorism, the sentence may be increased to five years.

In certain circumstances, penalties may be enhanced. Some of the factors that may affect the penalties are the number of victims and the nature of the crime.

Are There Any Legal Consequences for Individuals Engaged in Aggravated Identity Fraud?

However, the consequences depend on the felony violation attached to the identity theft. Two types of federal felonies may serve as the basis for an aggravated identity theft charge.

Category 1

The first category of aggravated identity fraud pertains to cases where identity theft is alleged to have occurred in connection with one of approximately 60 Federal felony white-collar crimes. Each situation carries a minimum mandatory sentence of two years in prison. Included among the 60 predicate offenses are the following:

• Aggravated identity theft and general false statements (18 USC 1001)

• Aggravated identity theft relating to health care fraud (18 USC section 1347)

• False pretenses relating to wire fraud (18 USC 1343)

• False statements relating to mail fraud (18 USC 1341)

• Aggravated identity theft relating to firearm fraud

Category 2

The second category of aggravated identity theft includes situations in which identity theft purportedly occurs during and in relation to one of approximately 50 Federal felony terrorism-related offenses. A violation of any of these carries a minimum mandatory sentence of five years in prison.

Elements of Aggravated Identity Theft

When representing you, your lawyer will examine certain statute elements. These elements may offer prospects for a successful defense. These elements include:

• A proper defendant: 18 USC §1028A only penalizes actions by individuals. Violations of this statute are punishable only by imprisonment, not by fines. Thus, only individuals may be punished for violating 18 USC §1028A. This means that persons other than individuals, such as corporations and organizations, are not liable for crimes committed indirectly as principals under this statute. They can, however, incur liability as conspirators.

• Aggravated identity theft occurred “during and in relation to” a predicate offense: During the commission of a predicate crime, the person responsible must have the means of identification (such as personal information or documents) at hand. Furthermore, the offender must actively use the stolen ID while committing the predicate crime and not be a bystander.

• A listed predicate offense: Section 1028A recognizes two categories of predicate offenses: one involving terrorist offenses and carries a five-year prison sentence; the other does not involve terrorist offenses and carries a two-year sentence.

• Although the commission of a qualifying predicate offense is an element of aggravated identity theft, the defendant is not required to be charged or convicted of it.

• Knowingly: In Flores-Figueroa v. United States, the Supreme Court clarified that each element of Section 1028A is colored by the knowledge element. The government must prove that the defendant knew they had transferred, possessed, or used something and knew they were violating the law. It must also prove that the defendant knew the information or identification they unlawfully possessed, transferred, or used belonged to someone else.

• Unlawfully: “Lawful authority” refers to whether the law allows the defendant to use the identity of another, not whether another has given permission for the defendant to borrow the identification. So, using someone else’s Social Security number to commit a qualifying felony, even with that person’s permission, would be considered “without lawful authority” in terms of §1028A.

• A means of identification: “Means of identification” in relation to the aggravated identity theft provision is defined in the 18 USC 1028 generic identity theft provision. According to that definition, the means of identification must be sufficient to identify a specific individual.

• Identity of another person: This statute only applies to the use of another individual’s (whether living or dead) identification or personal information. False identification documents that do not identify a real person are not covered by the statute. Furthermore, it does not apply to the transfer of counterfeit documents containing an individual’s identification information. 

• Also, it does not apply to the transfer of a counterfeit document to an individual containing that individual’s identifying information. Although aggravated identity theft can be committed only by individuals, the “other person” whose identity is misused must also be an individual.

If you are charged with aggravated identity theft, an experienced theft attorney can evaluate the charges against you to determine whether the elements have been sufficiently established. Also, we will verify that the Georgia statute of limitations (criminal) has not expired.

Contact Philip Kim Law For Assistance

Being charged with aggravated identity fraud can lead to serious jail time. Philip Kim Law, P.C. can assist you if you are under investigation or have been charged with aggravated identity theft.

At Philip Kim Law, we understand the importance of addressing criminal charges with the utmost care and dedication. Our team of experienced attorneys is committed to providing exceptional legal services that prioritize honesty, tailored strategies, and responsive communication.

Call now to schedule a free consultation with one of our criminal lawyers in Lawrenceville.