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8.83 Fraud in Connection With Identification Documents—Aggravated Identity Theft

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8.83 FRAUD IN CONNECTION WITH IDENTIFICATION DOCUMENTS—AGGRAVATED IDENTITY THEFT

(18 U.S.C. § 1028A)

The defendant is charged in [Count ______ of] the indictment with aggravated identity theft in violation of Section 1028A of Title 18 of the United States Code. In order for the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:

First, the defendant knowingly [transferred] [possessed] [used] without legal authority [a means of identification of another person] [a false identification document]; [and]

[Second, the defendant knew that the means of identification belonged to a real person; and]

[Second] [Third], the defendant did so during and in relation to [specify felony violation].

Comment

For offenses charged under Section 1028A(a)(1), use only "a means of identification of another person" under the first element and select the applicable felony from Section 1028A(c)(1)–(11) for insertion in the last element. For offenses charged under Section 1028A(a)(2) [terrorism offense], select the applicable felony from 18 U.S.C. § 2332b(g)(5) for insertion in the last element. Do not use the bracketed second element in cases charging a false identification document under Section 1028A(a)(2).

Section 1028(d) provides definitions for the terms: "false identification document" and "means of identification." The Ninth Circuit has held that a signature qualifies as a "means of identification." United States v. Blixt, 548 F.3d 882, 887 (9th Cir.2008).

In Flores-Figueroa v. United States,556 U.S. 646 (2009), the Supreme Court held that Section 1028A requires that the government prove the defendant knew that the "means of identification" he or she unlawfully transferred, possessed or used belonged to a real person. The word "person" includes both living and deceased persons, and the government is not required to prove that the defendant knew the person was living when the defendant committed the crime of aggravated identity theft. United States v. Maciel-Alcala, 598 F.3d 1239, 1242-48 (9th Cir.2010).

If the government offers evidence at trial of uncharged identity theft against victims not included in the indictment, it may be necessary for the court to modify this instruction to name the specific victims whose identities the indictment accuses the defendant of stealing. See United States v. Ward, 747 F.3d 1184, 1192 (9th Cir.2014) (reversible error to permit jury to convict on counts of aggravated identity theft against two victims named in indictment based on evidence presented at trial of uncharged conduct against identity-theft victims not named in indictment). See Instruction 3.10 (Activities Not Charged).

When conduct necessary to satisfy an element of the offense is charged in the indictment and the government’s proof at trial includes uncharged conduct that would satisfy the same element, the court should instruct the jury that it must find the conduct charged in the indictment before it may convict. See United States v. Ward, 747 F.3d 1184, 1191 (9th Cir.2014) (reversible error to permit jury to convict on counts of aggravated identity theft against two victims named in indictment based on evidence presented at trial of uncharged conduct against identity-theft victims not named in indictment). 

Approved 6/2014