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Aggravated identity theft

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Definition Edit

Aggravated identity theft occurs when someone “knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person” in the commission of particular felony violations.[1]

Overview Edit

These felony violations as outlined in 18 U.S.C. §1028A include theft of public money, property, or records; theft, embezzlement, or misapplication by bank officer or employee theft from employee benefit plans; false personation of citizenship; false statements in connection with the acquisition of a firearm; fraud and false statements; mail, bank, and wire fraud; specified nationality and citizenship violations; specified passport and visa violations; obtaining customer information by false pretenses; specified violations the Immigration and Nationality Act relating to willfully failing to leave the United States after deportation and creating a counterfeit alien registration card and various other immigration offenses; specified violations of the Social Security Act relating to false statements relating to programs under the Act; and specified terrorism violations.

The basic penalty for identity theft under 18 U.S.C. §1028 ranges from not more than five years imprisonment to not more than 30 years, depending on the circumstances. However, current U.S. federal law provides enhanced penalties for aggravated identity theft. Aggravated identity theft carries an enhanced two-year prison sentence for most specified crimes and an enhanced five-year sentence for specified terrorism violations.

Court decisions Edit

In Flores-Figueroa v. United States,[2] the U.S. Supreme Court held that in prosecuting a defendant under the aggravated identity theft offense, the government must prove that the defendant knew that the “means of identification” (e.g., name, Social Security number, or credit card number) that the defendant unlawfully transferred, possessed, or used, in fact belonged to “another [real] person.”[3] It is not sufficient to only have knowledge that the means of identification used was not his own.

More recently, in United States v. Magassouba,[4] the Second Circuit Court of Appeals held that in a prosecution under section 1028A, where venue is appropriate for the felony offense that serves as a predicate for the aggravated identity theft charge (e.g., mail fraud or wire fraud), “so too is venue appropriate for a prosecution of the separate crime of knowingly transferring, possessing, or using a means of identification of another person ‘during and in relation to’ that offense,” even when there is no evidence that the defendant “transferred, possessed, or used another person’s means of identification within that district.”[5] This decision, in a case of first impression, is important because it provides the necessary authority appropriately to charge identity thieves whose identity-theft and associated criminal conduct takes place in more than one jurisdiction.

References Edit

  1. These felony violations as outlined in 18 U.S.C. §1028A include theft of public money, property, or records; theft, embezzlement, or misapplication by bank officer or employee theft from employee benefit plans; false personation of citizenship; false statements in connection with the acquisition of a firearm; fraud and false statements; mail, bank, and wire fraud; specified nationality and citizenship violations; specified passport and visa violations; obtaining customer information by false pretenses; specified violations the Immigration and Nationality Act relating to willfully failing to leave the United States after deportation and creating a counterfeit alien registration card and various other immigration offenses; specified violations of the Social Security Act relating to false statements relating to programs under the Act; and specified terrorism violations. The basic penalty for identity theft under 18 U.S.C. §1028 ranges from not more than five years imprisonment to not more than 30 years, depending on the circumstances.
  2. __ U.S. __, 129 S. Ct. 1186 (2009).
  3. Id. at 1888.
  4. 619 F.3d 202 (2d Cir. 2010).
  5. Id. at 204.

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