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What Does a Defendant Need to Know to Commit the Federal Crime of Aggravated Identity Fraud?

Largely in an effort to crack down on illegal aliens in the United States, the government enacted the federal crime of aggravated identity fraud which is punishable by a mandatory two year prison sentence. This is a very severe mechanism used by the federal government to address the issue of illegal aliens coming into the US and obtaining fake social security cards and other forms of identification in an effort to obtain jobs and other benefits.

However, it is not clear, and the circuits are divided as to, what exactly the government needs to prove to establish that a person is guilty of the federal crime of aggravated identity fraud. The criminal law provides that a person commits aggravated identity fraud when he/she knowingly and without authority uses a means of identification of another person. For example, an illegal alien may come to the United States and create a fake social security card using nine numbers chosen at random. If those nine numbers do not form the sequence of a real person’s social security card, did the person who created the social security card commit the crime? In other words, in order to be guilty of aggravated identity fraud and receive the mandatory two year prison sentence, does the person who created the fake social security card need to know that he/she is using the card without authority or does he/she need to know that the social security number actually belongs to another person?

If it is the latter, it makes the crime much harder to prove as the government would ostensibly have to show that the social security number was a real one that actually belonged to another person and the defendant knew it. Clearly, it would be easier for the government to merely have to prove that the defendant knew he/she was improperly using the social security card or number regardless of whether he/she in fact knew if it belonged to anyone else.

Recently, the United States Supreme Court has agreed to decide a case that addresses this issue.