How can I be charged with 18 U.S. Code § 1028A Aggravated Identity Theft?

Here is the definition from the statute, cut directly from the 11th circuit’s jury instructions:

It’s a Federal crime to commit aggravated identity theft.

The Defendant can be found guilty of aggravated identity theft only if all the following facts are proved beyond a reasonable doubt:

(1) the Defendant knowingly transferred, possessed, or used another person’s [means of identification] [identification documents];

(2) without lawful authority; and

(3) during and in relation to [the eligible felony alleged in the indictment].

[A “means of identification” is any name or number used, alone or together with any other information, to identify a specific person, including a name, social security number, date of birth, officially issued driver’s license or identification number, alien registration number, passport number, employer or taxpayer identification number, or electronic identification number or routing code. It can also include a fingerprint, voice print or other biometric data.]

[An “identification document” is a document made or issued by or for the United States Government, a state or foreign government or political subdivision.]

The Government must prove that the Defendant knew that the [means of identification] [identification documents], in fact, belonged to another actual person, [living or dead,] and not a fictitious person.

The Government must prove that the Defendant knowingly transferred, possessed, or used another person’s identity “without lawful authority.” The Government does not have to prove that the Defendant stole the [means of identification] [identification documents]. The Government is required to prove the Defendant transferred, possessed, or used the other person’s [means of identification] [identification documents] for an unlawful or illegitimate purpose.

The Government also must prove that the [means of identification] [identification document] was possessed “during and in relation to” the crime alleged in the indictment. The phrase “during and in relation to” means that there must be a firm connection between the Defendant, the [means of identification] [identification documents], and the crime alleged in the indictment. The [means of identification] [identification documents] must have helped with some important function or purpose of the crime, and not simply have been there accidentally or coincidentally. The [means of identification] [identification documents] at least must facilitate, or have the potential of facilitating, the crime alleged in the indictment.

We at Conaway & Strickler, PC know how to combat these type of charges.  Please feel free to access our blog for other entries here

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