Identity Theft and Aggravated Identity Theft Under Federal Law

Two Forms of Federal Identity Theft

Federal identity theft law operates through two distinct statutes. The first, 18 U.S.C. 1028, criminalizes fraud and related activity connected with identification documents, authentication features, and information. The second, 18 U.S.C. 1028A, creates the offense of aggravated identity theft, which attaches a mandatory additional prison term to certain felonies committed while the defendant transfers, possesses, or uses another person's means of identification.

These two provisions work together but punish different things. Section 1028 targets the documents and implements themselves—producing, transferring, possessing, or using false or stolen identification. Section 1028A targets the act of using another person's identification during the commission of a listed felony, adding a fixed sentence on top of whatever punishment the underlying felony carries.

What the Government Must Prove

To secure a conviction under 18 U.S.C. 1028(a), the government must prove:

The defendant acted knowingly and without lawful authority;
The conduct falls within one of the eight categories listed in subsection (a)(1) through (a)(8);
The identification document, authentication feature, or means of identification is or appears to be issued by or under the authority of the United States, a state, a foreign government, or a sponsoring entity of a designated special event of national significance; and
The offense occurs in or affects interstate or foreign commerce, or the relevant item is transported in the mail in the course of the prohibited conduct (18 U.S.C. 1028(c)).

For aggravated identity theft under 18 U.S.C. 1028A, the government must additionally prove that the transfer, possession, or use of the means of identification occurred "during and in relation to" a felony violation enumerated in subsection (c) of that section.

Categories of Prohibited Conduct Under 18 U.S.C. 1028

Subsection (a) of 18 U.S.C. 1028 lists eight categories of conduct. They range from producing a false identification document to trafficking in authentication features. The categories include:

Knowingly producing an identification document, authentication feature, or false identification document without lawful authority (a)(1);
Knowingly transferring a stolen or unlawfully produced document (a)(2);
Knowingly possessing five or more identification documents with intent to use or transfer them unlawfully (a)(3);
Knowingly possessing a document with intent that it be used to defraud the United States (a)(4);
Knowingly producing, transferring, or possessing a document-making implement with intent that it be used to produce a false identification document (a)(5);
Knowingly possessing a stolen or unlawfully produced document of the United States or a special-event sponsoring entity (a)(6);
Knowingly transferring, possessing, or using a means of identification of another person with intent to commit, aid, or abet unlawful activity (a)(7); and
Knowingly trafficking in false or actual authentication features (a)(8).

These categories cover what some people refer to loosely as different "types" of identity theft. The statute does not use the phrase "four types" or "seven types"; rather, it enumerates eight distinct categories of conduct, each carrying its own penalty tier under subsection (b).

Document-Making Implements and Forgery Devices

Subsection (a)(5) of 18 U.S.C. 1028 specifically addresses what the statute calls a "document-making implement." Section 1028(d)(2) defines that term to include any implement, impression, template, computer file, computer disc, electronic device, or computer hardware or software that is specifically configured or primarily used for making an identification document, a false identification document, or another document-making implement.

This is the provision that reaches what is commonly called a "forgery device." Possession of such an implement with the intent that it be used to produce a false identification document is a standalone federal offense. The penalty tier for this category is set out in 18 U.S.C. 1028(b)(1)(C), which carries a maximum of 15 years' imprisonment, a fine, or both.

If you encounter a federal investigation involving a template, a blank document, or software configured to produce identification, the specific category under subsection (a) that the government alleges will determine which penalty tier applies and what elements must be proven. The stage of the investigation—whether it is a grand jury inquiry, a target letter, or an indictment—determines what procedural steps follow next.

Penalty Tiers Under 18 U.S.C. 1028

Subsection (b) of 18 U.S.C. 1028 establishes several tiers of punishment depending on the category of conduct and aggravating circumstances:

Up to 15 years: production or transfer of a document that is or appears to be issued by the United States, a birth certificate, or a driver's license; production or transfer of more than five documents; offenses under category (a)(5) (document-making implements); or offenses under category (a)(7) where the defendant obtains anything of value aggregating $1,000 or more during any 1-year period (b)(1).
Up to 5 years: any other production, transfer, or use of a means of identification, identification document, authentication feature, or false identification document; or offenses under categories (a)(3) or (a)(7) (b)(2).
Up to 20 years: offenses committed to facilitate a drug trafficking crime, in connection with a crime of violence, or after a prior conviction under this section becomes final (b)(3).
Up to 30 years: offenses committed to facilitate an act of domestic or international terrorism (b)(4).
Up to 1 year: any other case not covered by the tiers above (b)(6).

In addition, subsection (b)(5) authorizes forfeiture of any personal property used or intended to be used to commit the offense.

Aggravated Identity Theft: 18 U.S.C. 1028A

Section 1028A imposes a mandatory two-year term of imprisonment, in addition to the punishment for the underlying felony, when a person knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person during and in relation to a listed felony (1028A(a)(1)). If the underlying offense is a terrorism offense enumerated in 18 U.S.C. 2332b(g)(5)(B), the mandatory term is five years (1028A(a)(2)).

Subsection (b) of 1028A makes the sentence consecutive. A court shall not place the defendant on probation for the 1028A violation, and the two-year (or five-year) term shall not run concurrently with the sentence for the underlying felony. The court may not reduce the underlying felony sentence to compensate for the separate 1028A term.

Subsection (c) of 1028A enumerates the qualifying felonies in eleven categories, including theft of public money or property (18 U.S.C. 641), bank embezzlement (18 U.S.C. 656), false personation of citizenship (18 U.S.C. 911), fraud and false statements under chapter 47 (other than 1028A itself or 1028(a)(7)), mail, bank, and wire fraud (chapter 63), nationality and citizenship offenses (chapter 69), passport and visa offenses (chapter 75), immigration offenses, and false statements relating to Social Security programs.

The "Use" Requirement and Flores-Figueroa v. United States

The word "use" appears in both 18 U.S.C. 1028(a)(7) and 18 U.S.C. 1028A(a)(1). In Flores-Figueroa v. United States, the Supreme Court held that "use" of a means of identification in the context of 1028(a)(7) requires that the defendant employ the identification in a way that facilitates the completion or success of another crime. A mere possession, without that facilitating connection to a separate unlawful act, does not satisfy the "use" element. This holding clarifies the boundary between the categories of conduct listed in subsection (a) and the aggravated offense under 1028A.

Statute of Limitations and Timing

The text of 18 U.S.C. 1028 and 18 U.S.C. 1028A does not specify a fixed deadline before charges may be filed. No limitation period is stated within the two statutes themselves. General federal limitations rules operate separately from the substantive provisions and are not addressed in the statutory text provided here. In practical terms, the absence of a stated deadline in 1028 or 1028A means that the timing of a prosecution is governed by other provisions of title 18 that set general limitations for federal offenses, and those provisions are outside the scope of the two sections discussed here.

Key Definitions

Section 1028(d) supplies definitions that apply to both 1028 and 1028A. A "means of identification" is not defined in the excerpt provided, but a "means of identification of another person" is the operative phrase in both 1028(a)(7) and 1028A(a)(1). An "authentication feature" includes any hologram, watermark, certification, symbol, code, image, sequence of numbers or letters, or other feature used by the issuing authority to determine whether a document is counterfeit, altered, or falsified. A "false identification document" is a document of a type commonly accepted for identification that is not issued by a governmental entity, or was issued but subsequently altered for purposes of deceit, and that appears to be issued by a governmental authority.

Understanding which category of conduct and which penalty tier applies depends on the specific facts: the number of documents, the jurisdiction of the issuing authority, the presence of a document-making implement, the value obtained, and whether the conduct is connected to a listed felony. The statutory structure is detailed, and the distinctions between categories matter at every stage of a federal proceeding.

Primary sources

This page is grounded in the following primary sources (links open the official text). See all explained statutes in the statutes quick reference.

Adjacent provisions this page touches (official text):

Cases that shaped this area

Decisions referenced on this page (public law):

Flores-Figueroa v. United States