Aggravated Identity Theft Tough Federal Criminal Defense Since 1970

Aggravated Federal Identity Theft Lawyer in Los Angeles

What Is Aggravated Identity Theft & How Can You Beat Your Charge?

18 USC Section 1028A basically functions as an enhancement to a federal defendant who has been found guilty of various federal crimes enumerated in subsection “c” of section 1028A. Essentially, aggravated identity theft provides for an extra mandatory 24 months consecutive sentence to any sentence imposed upon the underlying crime for any person who “knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person.”

The underlying crime, which triggers an additional “aggravated identity theft” charge, is basically any white collar federal felony crime, including, but not limited to:

If you have been accused of or arrested for any of the above, contact Shemaria Law Offices as soon as possible. Prosecutors will work hard to make a strong case against you. Fight back with help from our Los Angeles aggravated identity theft attorney.

Sentencing Under Federal Law

This offense is rather unusual under federal law as Congress has provided for a mandatory 24 months consecutive sentence to any sentence imposed on the underlying offense. Unlike most crimes, United States Sentencing Guidelines have no applicability here. Nor does the judge have authority to reduce or raise the 24 month consecutive sentence for an aggravated identity theft conviction. Probation and/or a suspended sentence are specifically prohibited.

There can be little doubt that Congress, in enacting the separate crime of aggravated identity theft in 2004, provided federal prosecutors with a weapon they may use at their discretion in identity theft cases. However, not all is lost and the situation is not hopeless. Oftentimes a prosecutor will add a count of aggravated identity theft merely as a bargaining tool, hoping the defense attorney will reach a plea agreement where the aggravated identity theft count is dismissed in exchange for a guilty plea to the underlying federal felony criminal offense. Only an experienced federal criminal lawyer, such as Joseph Shemaria, would be able to guide you through the extremely intricate and the constantly changing legal precedents.

Evidence That Can Be Used Against You in Aggravated Identity Theft Charges

To begin with, to be found guilty of this offense, the government must prove beyond a reasonable doubt that a defendant used a “means of identification of another person.” In 18 USC section 1028, this term means any name or number that may be used, either alone or in conjunction with any other information, to identify a specific individual. This could include:

  • The name of another individual
  • Their social security number
  • Their date of birth
  • An official state or government issued driver’s license or identification number
  • An alien registration number
  • A government passport number
  • An employer or taxpayer identification number
  • A fingerprint
  • A retina image
  • Any other unique physical representation

They can also include, however, a unique electronic identification number, address or routing code, or telecommunication identifying information or access device. Basically, a “means of identification” is any name or number that may be used to identify a specific person. That person must be real, even though the person may be dead.

Next, the government must prove beyond a reasonable doubt that the defendant knowingly transferred, possessed, and/or used a means of identification of another person. In 2009, the United States Supreme Court held that the government must prove beyond a reasonable doubt that the defendant knew that the means of identification at issue belonged to another person.

All this may not be a real big issue to the defendant charged with using somebody else’s personal identification while cashing a check at a bank where that person has an account, as it is rather obvious that a defendant in the situation would obviously be aware that the means of identification he was using did, in fact, belong to another real person. However, the situation could be totally different where, as is frequently happening in many of the Border States, a noncitizen goes into a fraudulent immigration or “legal assistance” office and, for a fee, comes out with a phony birth certificate in somebody else’s name.

As stated, the government must prove beyond a reasonable doubt that the defendant knew that the means of identification (here, the birth certificate) belonged to another real person. In many of these cases, just the opposite is represented to the unsuspecting soon-to-be defendant.

The federal government must also prove that the federal defendant charged with aggravated identity theft transferred, possessed, and/or used the personal information of another “without lawful authority.” So if somebody’s aunt Tillie in Puerto Rico happens to send her birth certificate to a young niece who is not a United States citizen, but is living in Laredo, Texas, as a gift to assist her in trying to help her get into college in the state of Texas, it seems doubtful that the government could prove beyond a reasonable doubt that the defendant was using the personal information of her aunt “without lawful authority,” as the aunt clearly consented to the niece’s use.

Choose the Right Federal Criminal Defense Lawyer for Your Case

Suffice it to say that the aggravated identity theft (18 USC section 1028A) lends itself to tremendous leverage for the United States Department of Justice and every federal prosecutor who can add this section to an indictment. The above summary is not intended to be used as a legal guide and is only for general information to help you select the right federal criminal defense lawyer for your specific situation.

Criminal attorneys practicing solely in state courts, at least in California, would have no reason to be knowledgeable for defending against this charge. An experienced Los Angeles aggravated identity theft defense lawyer, such as Joseph Shemaria, can give you specific advice on the unique facts of your case.

Call (310) 953-4004 or contact Shemaria Law Offices online to discuss your unique situation during a free initial consultation at our Los Angeles office.

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Learn More About Attorney Joseph Shemaria
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    Joseph Shemaria

    Founding Attorney

    Joseph Shemaria graduated from UCLA Law School in 1969, with the most prestigious academic honors. He was also a Senior Editor of UCLA Law Review and graduated "Order of the Coif," the highest academic award. Mr. Shemaria started specializing in criminal defense in June 1970 and has tried cases in both state and federal courts from coast to coast. He has also handled over 1,000 state and federal appeals and writs, 30 of which were published in the permanent, official law books. Mr. Shemaria has ...
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