Charged With Using Someone Else’s Identity for EIDL Loan
So your being charged with using someone else’s identity to fraudulently obtain an EIDL loan, and this is EXTREMELY serious—probably the worst possible PPP/EIDL fraud charge you could face. Maybe the government says you used a stolen Social Security number to apply for a loan, maybe they claim you took over someone else’s business identity and applied in there name, maybe they say you used fake identification documents or someone else’s EIN, or maybe your accused of being part of an identity theft ring that filed dozens of fraudulent EIDL applications using stolen identities. The charges your facing are terrifying: aggravated identity theft (which carries a MANDATORY 2-year prison sentence that must be served consecutively to any other sentence), wire fraud, bank fraud, and potentially money laundering if you moved the stolen funds around. Your looking at potentially 10-20+ years in federal prison if convicted, and the prosecutors are treating you like your a career criminal even if this is your first offense.
Here’s what you need to know: **Using someone else’s identity to obtain an EIDL loan is federal identity theft under 18 U.S.C. § 1028 and aggravated identity theft under 18 U.S.C. § 1028A, and its one of the most aggressively prosecuted forms of pandemic fraud because it involves both stealing government money AND victimizing innocent individuals whose identities were stolen**. Aggravated identity theft carries a mandatory minimum 2-year consecutive prison sentence—meaning the judge HAS to sentence you to at least 2 years, and that sentence runs AFTER (not at the same time as) any sentence for the underlying fraud charges. If your convicted of wire fraud (20 years max) and aggravated identity theft (2 years mandatory consecutive), your minimum sentence is 2 years, but your facing potentially 20+ years total. The government has successfully prosecuted hundreds of EIDL identity theft cases, with sentences ranging from 3-4 years for single fraudulent loans to 15+ years for sophisticated schemes involving dozens of stolen identities.
This article explains what it means to be charged with identity theft for EIDL fraud, the difference between identity theft and aggravated identity theft (and why aggravated is so much worse), what prosecutors must prove to convict you, what defenses might exist (though honestly the defenses are limited if you actually used someone else’s identity), what happens if you were a “mule” or low-level participant in someone else’s scheme, what you absolutely must NOT do when charged with this, recent cases showing what sentences people are receiving, and what you should do immediately if your facing these charges. If your charged with EIDL identity theft, you need an experienced federal criminal defense attorney immediately—this is not something you can handle yourself, and the stakes are too high to make mistakes.
What Does It Mean to Be Charged With Identity Theft for EIDL Fraud?
When the government charges you with using someone else’s identity for an EIDL loan, they’re alleging that you knowingly used another person’s identifying information without authorization to fraudulently obtain the loan. This can take many forms:
Using a stolen Social Security number: You applied for an EIDL loan using someone else’s Social Security number, either because you werent eligible to apply under your own identity or because you wanted to file multiple fraudulent applications using different identities. The person whose SSN you used might be a real person who has no idea there identity was stolen, or it might be a deceased person whose SSN you obtained somehow.
Using someone else’s business identity: You applied for an EIDL loan claiming to be the owner or representative of a business that actually belongs to someone else. For example, you found a legitimate small business’s information online (there EIN, business name, owner information), and you submitted an EIDL application pretending to be that business owner to steal the loan proceeds.
Creating fake identification documents with stolen information: You obtained or created fake driver’s licenses, passports, or other ID documents using someone else’s name and personal information, and you used those fake documents during the EIDL application process or to open bank accounts to receive the fraudulent loan proceeds.
Taking over someone else’s SBA account: You gained access to someone else’s MySBA Loan Portal account (through phishing, hacking, or social engineering) and submitted an EIDL application using there account without there knowledge.
Being part of an organized identity theft scheme: You participated in a larger fraud ring where multiple people worked together to file dozens or hundreds of fraudulent EIDL applications using stolen identities, with different people playing different roles (some stealing the identities, some submitting applications, some opening bank accounts, some withdrawing the funds).
The key element that makes this identity theft (not just fraud) is that you used someone else’s personal identifying information—their name, Social Security number, date of birth, EIN, or other identifiers—without authorization and in connection with a federal crime (obtaining an EIDL loan through fraud).
Identity Theft vs. Aggravated Identity Theft—Why the Difference Matters
Theres a critical distinction between regular identity theft and aggravated identity theft, and the consequences are dramatically different:
Identity theft (18 U.S.C. § 1028): This is the general identity theft statute. It prohibits knowingly transferring, possessing, or using another person’s identification without authorization. Regular identity theft under § 1028 is punishable by up to 15 years in prison (or up to 20 years if the offense is related to terrorism), plus fines up to $250,000. However, the judge has discretion in sentencing—theres no mandatory minimum, so depending on the circumstances, someone convicted of § 1028 identity theft might receive probation, or a few years, or the maximum, depending on the facts.
Aggravated identity theft (18 U.S.C. § 1028A): This is the enhanced version that applies when you commit identity theft “during and in relation to” certain predicate felonies, including fraud offenses like bank fraud and wire fraud. If your charged with both EIDL fraud (wire fraud or bank fraud) AND you used someone else’s identity to commit that fraud, the government will charge you with aggravated identity theft under § 1028A. The critical difference: **§ 1028A carries a mandatory minimum 2-year consecutive prison sentence**. “Mandatory” means the judge HAS to impose at least 2 years—no discretion, no probation, no alternative. “Consecutive” means the 2 years runs AFTER whatever sentence you get for the underlying fraud—if you get 3 years for wire fraud plus 2 years mandatory for aggravated identity theft, thats 5 years total, not 3 years with the identity theft sentence running at the same time.
For EIDL fraud cases involving stolen identities, prosecutors almost always charge aggravated identity theft under § 1028A rather than regular identity theft under § 1028, because the EIDL fraud itself constitutes wire fraud or bank fraud (predicate felonies), so the aggravated version applies. This means if your facing EIDL identity theft charges, your almost certainly facing the mandatory 2-year consecutive sentence.
The mandatory consecutive nature of § 1028A is what makes these charges so serious. Even if you negotiate a plea deal where the prosecutor agrees to recommend a low sentence on the fraud charges, the § 1028A mandatory minimum cant be negotiated away (unless the charge is dropped entirely). You WILL serve at least 2 years in federal prison if convicted of aggravated identity theft, and thats on top of whatever time you get for the fraud itself.
What Must Prosecutors Prove to Convict You?
To convict you of aggravated identity theft under 18 U.S.C. § 1028A in connection with EIDL fraud, prosecutors must prove beyond a reasonable doubt:
- You committed (or attempted to commit) a predicate felony—in EIDL cases, this is typically wire fraud or bank fraud
- During and in relation to that predicate felony, you knowingly transferred, possessed, or used a means of identification of another person
- You did so without lawful authority
- The means of identification belonged to a real person (not a completely fictitious identity)
The “knowingly” element is important: Prosecutors must prove you knew the identification you were using belonged to another person. You cant accidentally commit aggravated identity theft—you have to know your using someone else’s identity. However, prosecutors dont have to prove you knew the specific person whose identity you stole, and they dont have to prove you intended to harm that person—all they need to prove is that you knowingly used identifying information that belonged to someone other than yourself.
Importantly, the Supreme Court ruled in Flores-Figueroa v. United States (2009) that the government must prove you knew the identification belonged to another actual person. So if you made up a completely fake Social Security number that didnt belong to anyone, that wouldnt be aggravated identity theft (though it would be other crimes). But if you used a real person’s SSN—even if you didnt know whose it was—thats aggravated identity theft.
What Defenses Exist? (Honestly, Not Many)
If you actually used someone else’s identity to obtain an EIDL loan, the defenses are extremely limited because the crime is relatively straightforward—either you used someone else’s identification or you didnt. However, there are a few potential defenses or mitigating arguments:
You didnt know the identification belonged to another person: If you can show you genuinely didnt know the identifying information you used belonged to a real person (maybe you thought you were using a fake SSN that didnt belong to anyone), you might defeat the “knowingly” element. But this is a hard defense because if the SSN actually belonged to someone, prosecutors will argue you should have known, and they’ll look for evidence that you took steps to verify the SSN was real (which shows you knew it belonged to someone).
You had authorization to use the identification: If the person whose identity you used actually gave you permission to apply for the loan using there information, thats a defense to the “without lawful authority” element. For example, if your spouse authorized you to apply for a loan using there SSN for a joint business, you had authority. But this requires proof of authorization, and it doesnt work if the person whose identity you used denies giving permission.
The identification was fictitious, not belonging to a real person: If the SSN or other identification you used was completely made up and didnt actually belong to anyone, you might avoid the aggravated identity theft charge (though you’d still face fraud charges). But if the identification turned out to belong to someone even though you thought it was fake, prosecutors will argue you should have known.
You were a victim of identity theft yourself: If someone stole YOUR identity and used it to apply for EIDL loans, and now your being charged with crimes you didnt commit, thats obviously a complete defense. You’d need to prove that someone else was responsible, that you didnt apply for the loans, and that your identity was stolen. This happens—there have been cases of legitimate business owners being accused of EIDL fraud when someone else stole there business identity and filed applications.
Mistaken identity / wrong person: The government has charged the wrong person—you didnt do this, someone else did, and the government’s evidence of your involvement is weak or mistaken. This requires showing that someone else had access to the accounts, computers, or information used in the fraud, and that the evidence doesnt actually prove you were the one who committed the crime.
Beyond these defenses, your options are limited. If you knowingly used someone else’s identity to get an EIDL loan, the facts are what they are, and the your attorney can do is negotiate the possible plea deal (maybe getting charges reduced or getting the government to dismiss the aggravated identity theft charge in exchange for pleading to the underlying fraud) or work toward the most lenient sentence possible by presenting mitigating factors.
What If You Were a “Mule” or Low-Level Participant?
Many EIDL identity theft prosecutions involve organized schemes where multiple people played different roles. Maybe you werent the mastermind—maybe someone recruited you to open a bank account or to let fraudulent loan proceeds be deposited into your account in exchange for a cut of the money. Or maybe you were just a low-level participant who followed instructions from someone else without fully understanding what you were doing. Does that help?
The short answer: It might help, but your still facing serious charges and liability. Heres why:
Accomplice liability: Under federal law, if you knowingly participated in a fraud scheme—even in a minor role—you can be held responsible for the entire fraud. The government doesnt have to prove you were the mastermind or that you personally stole the identities. If you knowingly helped (by opening bank accounts, withdrawing money, submitting applications prepared by someone else, etc.), your an accomplice and your guilty of the same crimes as the person who organized the scheme.
Conspiracy charges: If you agreed with others to commit EIDL fraud, you can be charged with conspiracy even if you only played a small role. Conspiracy carries serious penalties (up to 5 years for conspiracy to commit fraud under 18 U.S.C. § 371), and once your part of a conspiracy, your responsible for the actions of your co-conspirators in furtherance of the conspiracy.
However, cooperation can help: If you were a low-level participant and your willing to cooperate with the government’s investigation of higher-ups in the scheme—providing information, testifying against organizers, helping investigators understand how the scheme worked—the government might offer you a cooperation agreement that results in reduced charges or a lighter sentence. The government wants the people running these schemes more than they want the mules, so if you can help them get the bigger fish, you might get significant leniency.
Mitigating factors at sentencing: Even if you cant avoid conviction, if you can show you were manipulated, coerced, or recruited by someone more sophisticated, and that you played a minor role compared to organizers, the judge might impose a sentence at the lower end of the guideline range. But your still facing the mandatory 2-year consecutive sentence for aggravated identity theft if that charge isnt dismissed.
Being a low-level participant is better than being an organizer, but it doesnt make you innocent, and you’ll still face serious consequences unless you can negotiate cooperation or a plea deal that reduces charges.
What You Absolutely Must NOT Do When Charged
If your being investigated or charged with EIDL identity theft, certain actions will make your situation catastrophically worse:
Dont flee or fail to appear in court. If your charged and released on bond, show up for every court appearance. Failing to appear is a separate federal crime (18 U.S.C. § 3146) that adds years to your sentence. If you flee, you’ll be caught (the federal government has extensive resources to track fugitives), and when your caught, you’ll face additional charges and much harsher treatment.
Dont continue committing identity theft or fraud while under investigation. Some defendants who are under investigation keep committing the same crimes, thinking they havent been caught yet. This is insane. If your under investigation for EIDL identity theft and you keep filing fraudulent applications, every additional application is another count, and your sentence will skyrocket. Stop immediately if your doing this.
Dont try to intimidate or influence witnesses or victims. If the government identifies the people whose identities you stole, dont contact them, dont try to convince them not to cooperate with the investigation, and definitely dont threaten them. Witness tampering is a separate federal crime with serious penalties, and it destroys any chance of leniency.
Dont lie to investigators or destroy evidence. Lying to federal agents is a separate crime (18 U.S.C. § 1001) carrying up to 5 years. Destroying evidence is obstruction of justice. These additional charges make your situation exponentially worse. If the FBI or SBA OIG wants to interview you, tell them you need to consult with an attorney before speaking—dont lie, but dont talk without a lawyer.
Dont try to represent yourself. Identity theft charges are complex federal felonies with mandatory minimum sentences. You absolutely cannot handle this without an experienced federal criminal defense attorney. The stakes are too high, and the law is too complicated. Get a lawyer immediately.
Recent Cases: What Sentences Are People Receiving?
To understand the real consequences, here are examples from recent EIDL identity theft prosecutions:
Kevin Aguilar (Central District of California): Participated in a $3.77 million COVID relief fraud scheme involving multiple fraudulent EIDL and PPP applications using stolen identities. Charged with conspiracy, wire fraud, money laundering, and aggravated identity theft. Sentenced to 192 months (16 years) in federal prison. This extreme sentence reflected the large fraud amount, the organized nature of the scheme, use of stolen identities, and money laundering.
Defendant in Florida (name withheld in some reporting): Used stolen identities to fraudulently obtain $117,832 in EIDL loans. Charged with wire fraud and aggravated identity theft. Sentenced to 45 months (3.75 years) in federal prison. This included the mandatory 2-year consecutive sentence for aggravated identity theft plus additional time for the wire fraud.
Pattern across cases: Single fraudulent EIDL loans using stolen identities typically result in 3-5 years in federal prison (including the mandatory 2 years for aggravated identity theft). Multiple fraudulent applications or organized schemes result in 8-15+ years. The mandatory 2-year consecutive sentence for aggravated identity theft is imposed in essentially every case—theres no way around it if your convicted of that charge.
What Should You Do If You’re Charged With EIDL Identity Theft?
If your facing charges of using someone else’s identity for EIDL fraud, take these steps immediately:
Step 1: Hire an experienced federal criminal defense attorney immediately. Not a general criminal lawyer—you need someone with significant experience defending federal identity theft and fraud cases. The attorney needs to understand the mandatory minimum sentencing provisions, potential defenses, plea negotiation strategies, and how to present mitigating factors to minimize your sentence.
Step 2: Dont speak to anyone about the case without your attorney present. Dont talk to investigators, dont talk to co-defendants or other people involved in the scheme, dont post on social media, dont discuss the case with anyone except your attorney. Anything you say can be used against you.
Step 3: Gather all relevant information and provide it to your attorney. Your attorney needs to know exactly what happened, who else was involved, what your role was, what evidence exists, and what your defenses might be. Be completely honest with your attorney—they cant help you if they dont know the truth, and anything you tell them is protected by attorney-client privilege.
Step 4: Evaluate whether cooperation makes sense. If you can provide substantial assistance to the government in prosecuting organizers or other participants in the scheme, your attorney might negotiate a cooperation agreement that reduces your charges or recommends a lower sentence. The earlier you cooperate, the more valuable your cooperation is, and the more leniency you might get.
Step 5: Prepare for the likelihood of prison time. If your convicted of aggravated identity theft, your going to federal prison for at least 2 years (the mandatory minimum), and likely longer depending on the fraud amount and other factors. Be realistic about the consequences and work with your attorney to minimize the sentence as much as possible, but understand that avoiding prison entirely is unlikely if the evidence is strong.
Talk to a Federal Identity Theft Defense Attorney Today
Being charged with using someone else’s identity to obtain an EIDL loan is one of the most serious federal fraud charges you can face. The mandatory 2-year consecutive sentence for aggravated identity theft means prison is almost certain if your convicted, and the total sentence can easily reach 5-15+ years depending on the fraud amount and circumstances.
Our firm defends clients facing federal identity theft and fraud charges including EIDL cases. We have experience with complex federal prosecutions and understand the mandatory minimum sentencing provisions that make these cases so serious. We evaluate whether defenses exist based on your specific facts. We negotiate with prosecutors for charge reductions or cooperation agreements when possible. We present mitigating factors to minimize sentences. And we fight to protect your rights throughout the process.
If your charged with EIDL identity theft, contact us today for a confidential consultation. We’ll review the charges and the evidence. We’ll assess what defenses might be available. We’ll advise on whether cooperation makes sense. And we’ll develop a defense strategy focused on achieving the possible outcome given the serious nature of these charges. Time is critical—dont wait.
Federal identity theft charges are as serious as it gets. Call us now.