Identity theft, broadly defined, is the fraudulent use of another person’s identifying information (“means of identification”) in connection with some underlying crime.

Congress has passed two statutes that criminalize identity theft. In 1998, Congress enacted the Identity Theft and Assumption Deterrence Act, which set forth the substantive offense of identity theft at 18 U.S.C. § 1028(a)(7). That provision prohibits the use of another person’s identifying information in connection with any federal crime or any state or local felony.

The “aggravated” aspect of § 1028A(a)(1) is the prescribed penalty: a two-year mandatory sentence, which must be served consecutively to the sentence for the underlying offense. See 18 U.S.C. § 1028A(b)

What is Agrravated Identity Theft?

18 U.S.C. § 1028A(a)(1) provides:

Whoever, during and in relation to any felony enumerated in subsection (c), knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person shall in addition to the punishment provided for such felony, be sentenced to a term of imprisonment of 2 years.

“Means of identification of another person” defined

Identity theft is the fraudulent or deceptive use of another person’s identifying information. In the language of the statutes (and the Sentencing Guidelines), a person’s identifying information is called a “means of identification.” For purposes of both § 1028A and § 1028(a)(7), “means of identification” is defined at 18 U.S.C. § 1028(d)(7) as follows:

the term “means of identification” means any name or number that may be used, alone or in conjunction with any other information, to identify a specific individual, including any –

(A) name, social security number, date of birth, official State or government issued driver’s license or identification number, alien registration number, government passport number, employer or taxpayer identification number;
(B) ) unique biometric data, such as fingerprint, voice print, retina or iris image, or other unique physical representation;
(C) unique electronic identification number, address, or routing code; or
(D) telecommunication identifying information or access device (as defined in section 1029(e)).

1. “Person” means real actual person, but may include deceased persons.

Both 18 U.S.C. §§ 1028A(a)(1) and § 1028(a)(7) only reach the fraudulent use of a means of identification that belongs to a real person. See, e.g., United States v. Jimenez, 507 F.3d 13, 20 (1st Cir. 2007). Courts have held that a “real person” includes a deceased person. See United States v. LaFaive,

1. The means of identification must identity a specific individual.

While the definition at 18 U.S.C. § 1028(d)(7) is broad, it does have limits. In United States v. Mitchell, 518 F.3d 230 (4th Cir. 2008), the court held that the statutory definition “allows for an identifier, taken alone or together with other information, to qualify as a means of identification so long as the sum total of information identifies a specific individual.” Mitchell involved a counterfeit check scheme, wherein the defendant bought merchandise with counterfeit checks, then later returned the merchandise for cash.

1. Forged signatures.

In United States v. Blixt, 548 F.3d 882, 887-88 (9th Cir. 2008), the Ninth Circuit held that a forged signature constituted a “means of identification.” The defendant in Blixt forged her supervisor’s name on company checks in the midst of a fraudulent scheme. The court held that the signature was a “name” within the meaning 18 U.S.C. § 1028(d)(7)(A).