Identity fraud and identity theft are terms used to refer to crimes in which someone wrongfully obtains another person’s data (social security numbers, bank accounts, credit card accounts, computer passwords, etc.) for economic gain. In today’s world, identity theft/fraud is usually committed via the internet and is a cybercrime where hackers break into a computer’s system to obtain personal data. Often, hackers will identify computer systems that are not well protected so that information can be obtained in bulk quickly and without detection. For example, the infamous Target hack of 2013 that occurred on Black Friday was accomplished by gaining access to the store’s payment system through the computer system of a relatively unknown Pittsburgh HVAC company. Target had given the company credentials to access its internal network so that maintenance could be done on its stores’ air conditioning systems. By gaining access to the HVAC company’s network, hackers were able to enter Target’s payment system, resulting in the theft of 40 million credit card accounts.
Identity theft/fraud is a crime which results in billions of dollars of losses each year and is a big priority for prosecutors and law enforcement. The offense is a violation of both Ohio and federal law and can result in harsh penalties including fines and time in prison.
Under Ohio law, identity fraud is set forth in R.C. § 2913.49 and prohibits the use or possession of “personal identifying information” with an intent to defraud. The penalties for identity fraud focus upon the amount of loss to the victim and follows the offense levels set forth in the theft statute, i.e. R.C. § 2913.02. An offense which results in a small loss, i.e. under $1000, is a felony of the fifth degree while a loss over $1000 but under $7500 is a felony of the fourth degree. Unlike the usual theft offense, victims of identity fraud not only lose monies but can suffer harm to their credit history and other public records resulting in long-term financial issues. Judges frown upon identity fraud cases especially if the victim is elderly and/or suffered significant loss. As such, most Ohio judges are more likely to sentence defendants to prison sentences than other non-violent, theft related offenses.
Under federal law, 18 U.S.C. § 1028 and 18 U.S.C. § 1028A deal with fraudulent identification documents and identity fraud. These statutes distinguish two categories of prohibited conduct and levels of culpability. § 1028 prohibits individuals from producing, transferring, possessing, or trafficking in an identification document. This statute criminalizes, for example, the conduct of the person who makes a false passport and sells it to another for their use. The statute carries penalties of a fine as well as a possible 15 year prison sentence.
18 U.S.C. § 1028A, aggravated identity theft, prohibits the conduct of knowingly using the identification of another in relation to a felony offense. For example, individuals who steal identifying information from another and then file fraudulent tax returns to pocket the refund monies would be prosecuted under this statute.
The Federal Aggravated Identity Fraud Statute carries a mandatory sentence of 2 years and is non-probation, i.e. the defendant must be sentenced to prison. 18 U.S.C. § 1028A is so harsh that not only must the judge sentence a defendant to a mandatory 2 years in prison but the sentence must be served consecutively to the underlying felony offense.
As with all fraudulent criminal matters, a person will be sentenced under the Federal Sentencing Guidelines, which for aggravated identity theft are contained in U.S.S.G. § 2B1.6. The Guidelines for this offense incorporate the 2 year mandatory sentence set forth in the statute. However, defendants who commit identity theft routinely do so with multiple identities and rarely commit one offense. As such, the court has the discretion to sentence the defendant to concurrent or consecutive sentences.
Identity fraud, especially related to another felony, is a serious offense that is prosecuted zealously at the state and federal levels and with harsh penalties awaiting those convicted. If you are charged with or investigated for such an offense, you need to contact an experienced lawyer right away and before you speak with law enforcement. Contact Joe Edwards at 614-309-0243.
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