Aggravated Identity Theft Charges in PPP Fraud Cases
So your probably looking at an indictment or plea offer that includes aggravated identity theft charges in addition to bank fraud or wire fraud, and your wondering what this means, why its such a big deal, and whether there’s any way to get these charges dismissed or reduced. The answer is that aggravated identity theft under 18 U.S.C. § 1028A is one of the most dangerous charges you can face in a PPP fraud case because it carries a mandatory minimum sentence of two years in federal prison that must run consecutive to any other sentence you receive, meaning its automatically tacked on top of whatever time you get for the underlying fraud charges with absolutely no judicial discretion to reduce it or make it run concurrently.
This mandatory consecutive sentence is what makes identity theft charges so devastating. If your convicted of bank fraud and the judge wants to give you three years, and your also convicted of aggravated identity theft, your actual sentence is five years minimum—three years for the fraud plus a mandatory two years consecutive for identity theft. The judge can’t make the sentences overlap, can’t reduce the identity theft sentence below two years, and can’t give you probation on the identity theft charge even if there facing the most compelling mitigation evidence in the world. Its a flat two years added to your sentence, period, and there’s nothing anyone can do about it once your convicted.
Aggravated identity theft charges arise in PPP fraud cases when prosecutors believe you knowingly used another person’s identification information without authorization during the commission of bank fraud, wire fraud, or other predicate offenses. This typically happens when defendants submitted PPP applications using stolen Social Security numbers, fake Employee Identification Numbers belonging to real people, fabricated employee lists with real people’s names and SSNs, or synthetic identities created by combining real and fake personal information. If you used someone else’s identity to obtain a loan or to create fake employees on your payroll, your facing mandatory minimum sentences that can add years to your total incarceration.
We represent clients charged with aggravated identity theft in connection with PPP loans, and we know that the stakes couldn’t be higher. These charges fundamentally change the calculus of plea negotiations and trial strategy because the mandatory minimum eliminates the possibility of probation or other alternatives to incarceration, and it removes one of the most important negotiating points in federal criminal cases—the ability to argue for concurrent sentences. Understanding how these charges work, what the government must prove, and what limited defenses are available is critical to developing an effective strategy for minimizing your exposure.
What Does Aggravated Identity Theft Require Prosecutors to Prove?
To convict you of aggravated identity theft under 18 U.S.C. § 1028A, prosecutors must prove beyond a reasonable doubt that you knowingly transferred, possessed, or used another person’s means of identification without lawful authority, and that you did so during and in relation to a predicate felony offense like bank fraud or wire fraud. While this sounds simple, there are important nuances to each element that affect whether the charge can be proven and what defenses might be available.
The “means of identification” element covers a broad range of personal information including Social Security numbers, EINs, names, dates of birth, driver’s license numbers, and other identifying information. In PPP fraud cases, this typically involves Social Security numbers that appear on loan applications either for the business owner or for employees listed on payroll documents. If you claimed five employees on your PPP application and provided five Social Security numbers that belonged to real people who didn’t actually work for you, that’s five separate counts of aggravated identity theft—one for each SSN you used without authorization.
The “knowingly” requirement is critical and is often the focus of defense challenges to identity theft charges. The Supreme Court clarified in Flores-Figueroa v. United States that the government must prove you knew the means of identification you used belonged to another actual person. If you made up a random Social Security number that happened to belong to someone, but you didn’t know it was a real person’s number, you haven’t committed aggravated identity theft. However, if you obtained Social Security numbers from employees, former employees, or through data breaches and then used them on fraudulent PPP applications, you clearly knew they belonged to real people.
The “without lawful authority” element means you didn’t have permission to use the person’s identifying information for the purpose you used it. In PPP fraud cases, this is usually straightforward—if you listed employees on your application who didn’t actually work for you and used their Social Security numbers without their knowledge or consent, you lacked lawful authority. Even if the people were former employees whose information you had access to from prior legitimate employment, using their identities on a fraudulent loan application is unauthorized use that satisfies this element.
The “during and in relation to” requirement means the identity theft must have occurred as part of the predicate felony, not merely at the same time. In PPP cases, this element is easily satisfied because using fake or stolen identities on the loan application is integral to the bank fraud or wire fraud—the false identities are part of how the fraud scheme operates. If prosecutors prove you committed bank fraud by submitting a fraudulent PPP application, and that application contained unauthorized use of others’ Social Security numbers, the “during and in relation to” element is met.
Why Is the Mandatory Consecutive Sentence So Harsh?
The mandatory consecutive sentence provision of 18 U.S.C. § 1028A is one of the most severe sentencing provisions in federal criminal law because it removes all judicial discretion and requires judges to stack additional prison time on top of whatever sentence they impose for the underlying offense. This mandatory stacking creates enormous sentencing exposure in PPP fraud cases where identity theft charges are added, and it fundamentally changes the risk-reward calculation of going to trial versus pleading guilty.
The statute explicitly states that the two-year term of imprisonment for aggravated identity theft “shall run consecutive to any other term of imprisonment imposed for the felony during which the means of identification was transferred, possessed, or used.” This language removes the judge’s normal discretion to order sentences to run concurrently (at the same time) rather than consecutively (one after another). In typical federal sentencing, judges can order multiple sentences to run concurrently, which means a defendant convicted on three counts and sentenced to five years on each count might only serve five years total if the sentences run concurrently. But with aggravated identity theft, the two-year mandatory minimum must be added on top of the fraud sentence.
The statute goes further by prohibiting judges from reducing the sentence for the underlying fraud offense to compensate for the mandatory consecutive identity theft sentence. Some judges try to avoid the harshness of mandatory minimums by imposing lower sentences on related counts, but 18 U.S.C. § 1028A explicitly bars this by stating that “a court shall not in any way reduce the term to be imposed for such crime so as to compensate for, or otherwise take into account, any separate term of imprisonment imposed or to be imposed for a violation of this section.” This means if the guidelines call for three years on the fraud charge, the judge can’t impose one year on fraud and two years on identity theft to keep the total at three years—the judge must impose at least three years on fraud plus a mandatory two years consecutive on identity theft.
Multiple counts of aggravated identity theft result in multiple mandatory consecutive sentences stacking on top of each other. If you submitted a PPP application with three stolen Social Security numbers, that’s three counts of identity theft with three separate two-year mandatory minimums, for a total of six years that must be added consecutively to your fraud sentence. We’ve seen cases where defendants facing guideline ranges of four to five years on fraud charges ended up with actual sentences of 10 to 12 years because of multiple identity theft charges with stacking mandatory minimums.
What Are Common Identity Theft Scenarios in PPP Fraud Cases?
Understanding the specific scenarios where identity theft charges arise in PPP fraud prosecutions is important because it affects both your exposure and your defenses. Some identity theft scenarios involve clear-cut intentional use of stolen identities, while others involve ambiguous situations where defendants might have legitimate defenses to the knowledge requirement or the “without lawful authority” element.
The most straightforward identity theft scenario is when defendants create completely fabricated businesses with fake employee rosters using stolen Social Security numbers. These schemes typically involve obtaining SSNs through data breaches, purchasing stolen identity information on dark web markets, or using publicly available personal information combined with social engineering to assemble fake employee lists. The defendants then submit PPP applications claiming payroll costs for these fictitious employees, using the stolen SSNs to create the appearance of legitimate payroll. When prosecutors can show you obtained the SSNs from illicit sources and used them to fabricate employee lists, the identity theft charges are almost impossible to defend.
Another common scenario involves real businesses with some legitimate employees, but where owners inflate their employee count by adding former employees, friends, family members, or completely fake people whose identities they obtained without authorization. For example, if you had five actual employees but claimed 15 employees on your PPP application and filled in the additional 10 slots with Social Security numbers from people who didn’t work for you, that’s 10 counts of aggravated identity theft. This scenario is particularly dangerous because prosecutors can easily prove the people weren’t employed by you through interviews, wage records, and tax filings, and your possession of their SSNs—even if obtained legitimately at some point—doesn’t give you authority to use them fraudulently.
Synthetic identity fraud is an increasingly common scenario where defendants combine real and fake information to create identities that appear legitimate but don’t correspond to actual people. For example, using a real SSN with a fake name and address, or using a real name with a fake SSN. Between $20 and $25 million in PPP loans were paid to companies registered using synthetic identities. While synthetic identity fraud might seem less harmful than using completely real identities because no actual person is directly victimized, prosecutors still charge aggravated identity theft when real Social Security numbers are involved as part of the synthetic identity, arguing that the real person whose SSN was used is the victim even if the rest of the identity is fabricated.
Using third-party identities to apply for loans on behalf of businesses you don’t own is another scenario that triggers identity theft charges. Some PPP fraud schemes involved individuals applying for loans using other people’s names and businesses, often without those people’s knowledge. For example, Christopher Leo Daragjati used fraudulently obtained Florida identification cards to apply for three PPP loans in the identities of two victims, receiving approximately $150,000. When you apply for a loan in someone else’s name—even if the business is real—you’re using their identity without authorization and committing aggravated identity theft in addition to fraud.
Can You Challenge Aggravated Identity Theft Charges?
Challenging aggravated identity theft charges is extremely difficult because the statute is written broadly and because courts have interpreted it in ways that favor the government, but there are specific legal arguments and factual defenses that can succeed in appropriate cases. Understanding where the vulnerabilities are in the government’s case is critical to determining whether to fight identity theft charges or whether to negotiate plea agreements that dismiss them.
The strongest challenge to identity theft charges attacks the knowledge requirement. Following the Supreme Court’s decision in Flores-Figueroa, prosecutors must prove you knew that the means of identification you used belonged to another actual person. If you randomly generated Social Security numbers for fake employees without knowing whether they corresponded to real people, you lack the knowledge required for conviction. Similarly, if you used Social Security numbers that a loan preparer or co-conspirator provided to you and you had no reason to know they were real people’s SSNs, you might be able to argue lack of knowledge. However, this defense is hard to establish because prosecutors will point to circumstantial evidence showing you must have known—like the fact that the SSNs passed verification checks, or that you had previous contact with the people whose identities you used.
Challenging whether the identification information actually belonged to “another person” can work in synthetic identity cases. If prosecutors charge you with using a Social Security number that was part of a synthetic identity, but they can’t identify any actual person who was harmed or whose identity was stolen, some courts have found that the “another person” element isn’t satisfied. However, this defense is risky because most courts interpret the statute broadly and will find that using any real SSN—even as part of a synthetic identity—satisfies the “another person” requirement as long as that SSN is assigned to someone.
Arguing that the use of the identification information wasn’t “without lawful authority” might work in limited circumstances where you had some legitimate basis for possessing or using the information. For example, if you used Social Security numbers of actual employees who worked for you at the time you applied for the PPP loan, but you inflated other aspects of your payroll costs, you might argue that your use of their SSNs wasn’t unauthorized because they were legitimate employees whose identities you had authority to include on payroll documents. This is a narrow defense that only works when there was some legitimate relationship giving you lawful access to the information.
The most practical approach to challenging identity theft charges often isn’t legal arguments but rather negotiation with prosecutors to dismiss the charges as part of a plea agreement. Prosecutors know that identity theft charges with mandatory minimums give them enormous leverage in plea negotiations, and they’re often willing to dismiss these charges in exchange for guilty pleas to the underlying fraud offenses. If we can negotiate dismissal of identity theft charges, you avoid the mandatory two-year consecutive sentence and maintain the possibility of probation or other alternatives to incarceration on the fraud charges alone. This negotiation requires showing prosecutors that their identity theft charges might not survive legal challenges, or that your cooperation or early resolution of the case justifies leniency on the most severe charges.
What If You Didn’t Know the SSNs Belonged to Real People?
If you genuinely didn’t know that the Social Security numbers you used on your PPP application belonged to real people—perhaps because you made up random numbers or because someone else provided them to you claiming they were fake—you have a potential defense to aggravated identity theft charges based on lack of knowledge, although establishing this defense requires convincing evidence and faces significant practical challenges in most cases.
The Supreme Court’s decision in Flores-Figueroa v. United States established that the government must prove you knew the means of identification belonged to “another person” rather than just proving you used someone’s identification. This knowledge requirement distinguishes aggravated identity theft from general fraud offenses and provides a narrow window for defendants who can show they lacked this specific knowledge. However, proving you didn’t know is much harder than it sounds because prosecutors will use circumstantial evidence to establish your knowledge.
For example, if the Social Security numbers you used passed validation checks that verify they’re legitimate numbers assigned to real people, prosecutors will argue this shows you obtained the numbers from sources that provided real SSNs rather than generating them randomly. If you used Social Security numbers that correspond to people in the same geographic area as your business, or to people of similar ages to the employees you claimed to have, prosecutors will argue these patterns demonstrate you obtained real people’s information intentionally rather than making up numbers randomly.
Similarly, if you had any prior relationship with the people whose SSNs you used—such as former employees, vendors, customers, or family members—prosecutors will argue you obviously knew the numbers belonged to real people because you had personal knowledge of those individuals. Even if your relationship with them was years earlier and you had no recent contact, the mere fact that you previously knew them defeats any claim that you didn’t know their SSNs belonged to actual people.
To successfully establish lack of knowledge, you typically need to present affirmative evidence showing how you obtained the Social Security numbers and why you believed they were fake or random. This might include testimony that a loan preparer or co-conspirator provided the numbers and assured you they were fabricated for documentation purposes, or evidence that you used a random number generator without verification. However, even with this evidence, prosecutors will argue that you had constructive knowledge—that you should have known the numbers belonged to real people based on the circumstances, and that willful blindness constitutes knowledge for purposes of the statute.
How Do Multiple Identity Theft Counts Affect Sentencing?
Multiple counts of aggravated identity theft in a PPP fraud case create exponentially harsher sentences because each count carries its own mandatory minimum two-year consecutive sentence, and federal courts have held that these consecutive sentences must stack on top of each other when there are multiple victims whose identities were used. Understanding how multiple counts interact is critical to evaluating plea offers and making strategic decisions about trial.
If your charged with using five different people’s Social Security numbers on your PPP application—perhaps claiming five fake employees with stolen SSNs—that’s five separate counts of aggravated identity theft, each carrying a mandatory two-year consecutive sentence. The way federal sentencing works with multiple aggravated identity theft counts is that the first count’s two-year sentence must run consecutive to the fraud sentence, and then each additional identity theft count’s two-year sentence must run consecutive to the previous identity theft sentence. This stacking results in 10 years of mandatory minimum prison time just for the identity theft counts, before even accounting for the fraud sentence.
For example, if your fraud guideline range is 37 to 46 months (roughly 3 to 4 years), and your convicted of five counts of aggravated identity theft, your minimum sentence is approximately 13 to 14 years—the fraud sentence plus 10 years of mandatory consecutive identity theft sentences. The judge has no discretion to reduce this exposure, no ability to make the sentences run concurrently, and no authority to depart below the mandatory minimums no matter how compelling your mitigation evidence is. You’re serving at least 13 years in federal prison, period.
This stacking effect makes identity theft counts the most powerful leverage prosecutors have in plea negotiations. Defendants facing multiple identity theft counts are under enormous pressure to plead guilty and accept dismissal of some or all identity theft charges in exchange for a guilty plea to fraud charges alone. A typical plea offer might involve pleading guilty to one count of bank fraud and one count of aggravated identity theft, with the remaining four identity theft counts dismissed, reducing your mandatory minimum exposure from 10 years to two years. While you’re still facing the mandatory two-year consecutive sentence, that’s vastly preferable to the 10-year exposure if you go to trial and lose on all counts.
What Are the Collateral Consequences of Identity Theft Convictions?
Beyond the mandatory prison sentences, aggravated identity theft convictions carry severe collateral consequences that affect your life long after you’re released from prison. Federal felony convictions for identity theft are viewed particularly seriously by courts, licensing boards, employers, and others because they involve using other people’s identities, which suggests untrustworthiness and willingness to victimize innocent people.
Professional licensing consequences can be devastating for defendants in licensed professions. Many state licensing boards for lawyers, doctors, nurses, accountants, real estate agents, and other professionals view identity theft convictions as grounds for automatic license revocation or denial. Unlike fraud convictions which might result in license suspension with possibility of reinstatement, identity theft convictions are often seen as involving moral turpitude that permanently disqualifies you from licensed professions. We’ve seen clients lose professional licenses they spent decades building because of identity theft convictions stemming from PPP fraud cases.
Immigration consequences for non-citizens are particularly harsh for identity theft convictions. Aggravated identity theft is considered an aggravated felony under immigration law, which is one of the most serious categories of criminal offenses for immigration purposes. Aggravated felonies make defendants subject to mandatory deportation with no possibility of discretionary relief, ineligible for most forms of immigration benefits or relief from removal, and permanently inadmissible to the United States even after serving their sentence. For lawful permanent residents, an aggravated identity theft conviction means losing your green card and being deported, with virtually no ability to fight it or return to the U.S. later.
Employment consequences extend beyond licensed professions to virtually all fields because employers conducting background checks view identity theft as a serious red flag. While fraud convictions might be explained as business mistakes or financial desperation, identity theft convictions suggest you’re willing to harm innocent people by stealing their identities, which makes employers extremely reluctant to hire you. Jobs involving access to personal information, financial data, or positions of trust are essentially off-limits with an identity theft conviction on your record.
How We Fight Aggravated Identity Theft Charges
When you hire us to defend you against aggravated identity theft charges in a PPP fraud case, our primary goal is to get these charges dismissed or to avoid conviction on them, because the mandatory minimum consecutive sentences they carry are devastating and remove virtually all sentencing flexibility. We’ve successfully negotiated dismissal of identity theft charges in PPP cases and obtained favorable outcomes for clients facing these serious allegations.
We start by conducting a detailed analysis of whether the government can prove the knowledge element beyond a reasonable doubt. We investigate exactly how you obtained the Social Security numbers or other identifying information you’re accused of using, whether you had any legitimate basis for believing they were fake or authorized, and whether there’s evidence supporting lack of knowledge. If we can identify weaknesses in the government’s proof of knowledge, we present these issues to prosecutors during plea negotiations to argue for dismissal of the identity theft charges.
We challenge whether the identifying information you used actually belonged to “another person” in synthetic identity cases or other scenarios where the connection between the information and real victims is tenuous. We research whether the Social Security numbers correspond to identifiable individuals who can testify about harm, and if not, we argue the statutory elements aren’t satisfied. While this defense faces uphill battles in most circuits, it can be effective leverage in negotiations.
We negotiate aggressively for plea agreements that dismiss identity theft charges in exchange for guilty pleas to the underlying fraud offenses. We present prosecutors with reasons why dismissing identity theft charges serves justice—such as your minimal criminal history, your cooperation, your acceptance of responsibility, the fact that no actual individuals were financially harmed by the identity theft, or legal weaknesses in the government’s case. In many PPP fraud prosecutions, we’ve successfully negotiated dismissal of all aggravated identity theft charges, reducing our clients’ exposure by years of mandatory minimum prison time.
If identity theft charges can’t be dismissed through negotiation and your case goes to trial, we present aggressive defenses focusing on lack of knowledge and challenging the government’s evidence. We cross-examine witnesses about the investigation, challenge forensic evidence linking you to the stolen identities, and present your testimony or other evidence showing you lacked knowledge that the identifying information belonged to real people. While defending identity theft charges at trial is difficult, it can succeed when the government’s evidence is weak on the knowledge element.
At sentencing, if your convicted of aggravated identity theft charges that we couldn’t dismiss or defeat at trial, we advocate for the lowest possible sentence on the fraud counts and we pursue every available avenue for reducing your total exposure. While we can’t reduce the mandatory minimum on the identity theft counts themselves, we can fight for low-end or below-guidelines sentences on the fraud charges and we can present mitigation evidence that humanizes you and shows why the mandatory minimums in your case result in unjust outcomes that warrant executive clemency consideration in the future.
If your facing aggravated identity theft charges in connection with your PPP loan, you need experienced federal defense counsel who understands these charges and knows how to fight them. The mandatory minimum consecutive sentences make these charges existentially important to your case, and you can’t afford to have them handled by attorneys who don’t know the nuances of 18 U.S.C. § 1028A. Contact us immediately for a confidential consultation, and let us fight to protect your freedom and minimize your exposure.