Federal law has two statutes that address the crime of Identity Theft. The first is 18 USC 1028. Congress passed this statute as part of the Identity Theft and Assumption Deterrent Act in 1998. This was the first federal statute concerning the crime of identity theft, which is a modern offense.

The offense of identity theft was established by section 1028(a)(7). That section provides that a person is guilty of identity theft if he uses the identifying information of another in connection with any federal crime or any state or local felony.

Thus, the federal crime of identity theft requires a predicate offense. This is to say that a person can only be charged with identity theft if he first commits another crime, and while doing so, he also commits identity theft.

Under section 1028(a)(7), a person is guilty of identity theft when he or she “knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person with the intent to commit, or to aid or abet, or in connection with, any unlawful activity that constitutes a violation of Federal law, or that constitutes a felony under any applicable State or local law.”

Federal prosecutions for identity theft under 18 USC 1028 are probably rare. The reason is this statute has been replaced by a more severe statute prohibiting identity theft, the second statute, 18 USC 1028A.

18 USC 1028A establishes the offense of Aggravated Identity Theft. This statute became law in the United States in 2004. It 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.

The Department of Justice prefers to prosecute offenders under section 1028A because the penalties far exceed those that are available under the earlier law, 18 USC 1028.

Aggravated identity theft has a mandatory two-year sentence in the Bureau of Prisons. This sentence must be served consecutively to any other sentence.

Most sentences for various crimes run concurrently. This means that a person found guilty of two or more crimes will serve the sentence imposed on each crime simultaneously. For example, if a person receives a sentence of one year on the first crime, and three years on the second, he will serve a total of three years.

Compare this situation to someone who serves sentences consecutively. A defendant who is sentenced to one year on the first crime and three years on a second crime will serve four years total. Consecutive sentencing means that the sentences run one after the other.

The consecutive nature of sentencing for aggravated identity theft under 18 USC 1028A is important because the case always involves two sentences. Recall that identity theft generally involves two elements: first, the defendant used identifying information that belonged to another person; and second, the use of this information occurred during the commission of another crime. In this respect, identity theft consists of identity theft combined with another crime.

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. The statute prohibits the judge from allowing the sentences to run concurrently. Instead, the court must sentence the defendant consecutively. And so, whatever the sentences for the underlying crime, a person charged with aggravated identity theft must serve two years after that.

In addition, federal law prohibits the judge from reducing the sentence on the underlying crime to account for the two-year consecutive add-on. The only situation in which the court may sentence the defendant to concurrent sentences for aggravated identity theft is where there are multiple convictions for aggravated identity theft. In this instance, each two-year consecutive sentence for aggravated identity theft may be served at the same time, but always after the sentence on the underlying crime.

18 USC 1028A provides that a person is guilty of aggravated identity theft where he or she commits a crime and also “knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person.”

The crimes which trigger the aggravated identity theft statute are the following:

• 18 USC 641 (theft of public money or property)
• 18 USC 656 (theft, embezzlement, or misapplication by a bank officer or employee)
• 18 USC 664 (theft from employee benefit plans)
• 18 USC 911 (false personation of citizenship)
• 18 USC 922(a)(6) (false statements made in connection with the acquisition of a firearm)
• Any crime from Chapter 47 of the criminal code relating to fraud and false statements (e.g., 18 USC 1001)
• Any crime from Chapter 63 of the criminal code relating to mail, bank, and wire fraud (e.g., 18 USC 1341, 1343, and 1344)
• Any crime in Chapter 69 of the criminal code relating to nationality and citizenship
• Any offense in Chapter 75 of the criminal code relating to passports and visas
• 15 USC 6821 relating to obtaining customer information by false pretenses (see penalty provision at 15 USC 6823)
• Violations concerning willfully failing to leave the United States after deportation and creating a counterfeit alien registration card (e.g., see penalty provisions at 8 USC 1253 and 1306)
• Various immigration offenses (e.g., 8 USC 1321-1330)
• False statements relating to Social Security programs (e.g., 42 USC 408, 1011, 1307(b), 1320a–7b (a), and 1383a)