Charged With Using Someone Else's Identity for EIDL Loan

The phone call that changes everything usually comes out of nowhere. Federal agents want to talk to you. Or a grand jury subpoena arrives. Or someone you know gets arrested and suddenly your name is in their paperwork. And then you hear the words that make your stomach drop: aggravated identity theft.

You thought you were facing PPP or EIDL fraud charges. Bad enough. But identity theft? That wasn't what you did. You didn't steal anyone's social security number. You didn't hack into databases. You didn't create fake IDs. So how can they charge you with identity theft?

Here's the thing, most people don't understand until it's too late. Federal identity theft law is shockingly broad. And when prosecutors add 18 USC 1028A - aggravated identity theft - to your charges, everything changes. Thats a 2-year mandatory minimum prison sentence that gets stacked ON TOP of whatever else you face. No negotiation. No judicial discretion. No exceptions.

At Spodek Law Group, we understand exactly how terrifying this charge is. Todd Spodek and our team have defended clients facing aggravated identity theft in the context of EIDL and PPP fraud. We know how prosecutors use this charge - and more importantly, we know how to fight it.

Our mission is simple: we treat every client like family. We dont judge what happened. We figure out how to protect your future.

Call us at 212-300-5196 if your facing these charges. The stakes are to high to wait.

The 2-Year Hammer Nobody Saw Coming

OK so lets talk about why aggravated identity theft is so devastating.

Most federal sentences are determined by the sentencing guidelines. Judges have discretion. Good lawyers can present mitigating factors. First-time offenders often get reduced sentences. The system has flexibility.

18 USC 1028A has none of that.

If your convicted of aggravated identity theft in connection with a predicate felony - and fraud qualifies - you get 2 years in federal prison. Mandatory. Consecutive. This means the 2 years gets added AFTER whatever sentence you recieve for the underlying fraud. If your fraud sentence is 3 years, your now serving 5. If its 5 years, your now serving 7.

The judge cannot reduce this. The guidelines dont affect it. Your clean record dosent matter. Your circumstances, your family, your health - none of it changes the mandatory 2 years. Congress said 2 years, and 2 years is what happens.

And if prosecutors charge multiple counts? Each count is another 2 years. Used information from multiple people? Thats potentially multiple 2-year consecutive sentences. The stacking is brutal.

This is why the identity theft charge matters so much more than most people initially understand. Its not just another charge on the indictment. Its the difference between potentially getting probation and definitely going to prison.

What Federal Law Actually Says

Here's where it gets complicated - and where most defendants get surprised.

The statute prohibits "knowingly transferring, possessing, or using, without lawful authority, a means of identification of another person" during and in relation to certain felonies. Let's break that down.

"Means of identification" includes names, Social Security numbers, dates of birth, driver's license numbers, employer identification numbers, bank account numbers, and more. Basically, any information that can identify a specific person.

"Another person" means any individual - living or dead. Even using a deceased person's information counts.

"Without lawful authority" is where most defendants think they have a defense. But courts interpret this narrowly. Having access to information for one purpose doesn't mean you can use it for another purpose.

So what does this mean practically? Using your employees' Social Security numbers on a loan application - even if you legitimately have those numbers for payroll - can be aggravated identity theft if you used them "without lawful authority" for the loan. Using your business partner's name without their explicit authorization for this specific application can qualify. Even using information that someone else gave you - like a preparer who handed you fake documents - counts.

The law dosent require that you "stole" the identity in the traditional sense. It just requires that you use identifying information belonging to another person without having the legal right to use it for that purpose.

How People End Up With These Charges

Let me walk you through the scenarios we see most often. Because understanding how people get charged helps understand how to defend against it.

Scenario 1: The Inflated Payroll

Your business has 5 employees. But you list 12 on the PPP application to get a bigger loan. Where did those 7 extra names and SSNs come from? Maybe former employees. Maybe family members who never actually worked for you. Maybe just made-up numbers.

Each name belonging to a real person - former employee, family member, anyone - is a potential aggravated identity theft count. It dosent matter that you knew these people. It dosent matter that they might have given you their information for other purposes. Using it on a loan application they didnt authorize is "without lawful authority."

Scenario 2: The Shell Business

Someone convinced you to apply for EIDL using a business that wasnt really yours. Maybe they set up the paperwork. Maybe they provided the EIN and address. Maybe you just signed where they told you to sign.

That business might have been registered using someone elses identity. That EIN might belong to a real person. The application might have contained identifying information you didnt even realize belonged to someone else. But you submitted it - and thats enough for prosecutors.

Scenario 3: The Family Member

You listed your spouse as an employee when they werent. You used your parents address for a business that didnt operate there. You included a relatives information to make the application look more legitimate.

Did they explicitly authorize you to include them on THIS application? Can you prove it? Because prosecutors will argue that family relationships dont create automatic permission to use identifying information for fraudulent purposes.

Scenario 4: The Preparer Scheme

A "loan specialist" offered to help you get EIDL money. They handled all the paperwork. They told you what to say and where to sign. They might have even provided the identifying information that ended up on the application.

You might not have known where that information came from. You might have assumed it was legitimate. But if the application contained someone else's identity information - stolen SSNs, fabricated employees, fake owners - and you signed it, prosecutors will argue you "used" that information even if you didn't create it.

The Defense Strategies That Actually Matter

So how do you fight an aggravated identity theft charge? There are several angles that can work, depending on your specific facts.

Prove Consent

If the people whose information was used actually consented to be on the application, that's a complete defense. "With lawful authority" includes genuine authorization from the person whose information was used.

The challenge is proving it. Verbal consent without witnesses is your word against the prosecution. Written authorization is stronger. But even then, prosecutors might argue the consent wasnt informed - the person didnt know the application was fraudulent when they agreed.

We investigate thoroughly to establish what conversations happened, what the understanding was, whether there are texts or emails or witnesses that confirm authorization.

Challenge "Without Lawful Authority"

If you reasonably believed you had the right to use the information, thats a potential defense. Not every use of someone elses information is criminal - theres a reason employers can use employee SSNs for payroll, doctors can use patient information for billing, businesses can use customer data for legitimate purposes.

The question is whether your use was within the scope of whatever authority you had. This is factually intensive and requires careful analysis of your specific situation.

Attack the Knowledge Element

You have to KNOWINGLY use someone elses information. If you genuinely didn't know that the information on the application belonged to a real other person - if you were deceived by a preparer, if you thought the information was fictional, if you had no reason to believe real identities were involved - that's a defense.

This is difficult because courts don't accept willful blindness. You can't protect yourself by just not asking questions. But genuine lack of knowledge, supported by evidence, can defeat the charge.

Challenge the Predicate Offense

Aggravated identity theft only applies if the identity was used in connection with specified felonies. If the underlying fraud charge gets dismissed or reduced to a misdemeanor, the aggravated identity theft charge may fall away too.

This is why comprehensive defense strategy matters. Sometimes the best way to beat the identity theft charge is to attack the foundation its built on.

Negotiate Dismissal

In practice, many aggravated identity theft charges get resolved through plea negotiations. Prosecutors add the charge because they know defendants will plead guilty to underlying fraud to make it go away.

This is the ugly reality of how the system works. But understanding the dynamic helps you evaluate offers. If the prosecutor offers to dismiss the 1028A charge in exchange for a guilty plea to fraud, you need to understand exactly what your getting - and what your giving up.

Why This Charge Changes Everything

Lets be clear about what aggravated identity theft means for your case.

Without 1028A, many EIDL fraud defendants - especialy first-time offenders with smaller loan amounts - have real shots at probation or home confinement. The guidelines might be low. Judges have discretion. The pandemic context creates sympathy.

With 1028A, you are going to federal prison. Period. The only question is how long. That 2-year floor means no probation, no home confinement, no suspended sentence. You will serve time behind bars.

If your facing multiple 1028A counts, the math gets terrifying fast. Three counts is 6 years mandatory consecutive. Five counts is 10 years. Even if your fraud conviction gets a light sentence, those mandatory years get stacked on top.

This is why we take aggravated identity theft charges so seriously. This is why fighting these charges - or negotiating their dismissal - becomes the central focus of many EIDL fraud defenses. Everything else is secondary to that mandatory minimum.

What To Do Right Now

If your facing charges that include aggravated identity theft - or if you think you might be under investigation for conduct that could include this charge - heres what you need to do.

Stop talking. Dont discuss the case with anyone except your attorney. Federal agents may try to interview you. Decline. Anything you say can and will be used to prove knowledge, intent, and the identity theft elements.

Gather documentation. If you have any evidence of consent or authorization from the people whose information was used - emails, texts, signed documents, anything - preserve it. This could be critical to your defense.

Get experienced counsel immediately. Not next week. Not after you think about it. Now. The earlier we get involved, the more options you have. Sometimes we can prevent charges from being filed. Sometimes we can shape the investigation before it becomes an indictment. Time matters.

At Spodek Law Group, Todd Spodek and our team have handled aggravated identity theft charges in the context of pandemic fraud. We understand how these cases work. We know what defenses are viable. We know how to negotiate with federal prosecutors.

Call us at 212-300-5196. The consultation is confidential. Lets talk about your situation before the situation talks for you.

The Bottom Line

Being charged with using someone else's identity for EIDL fraud is not like being charged with other crimes. The 2-year mandatory consecutive sentence changes everything. The broad definition of "identity theft" means conduct you never thought was criminal might qualify. The plea leverage prosecutors gain from this charge affects every aspect of how your case gets resolved.

You need representation that understands these dynamics. That can fight the charge when fighting makes sense. That can negotiate its dismissal when thats the better path. That can help you make informed decisions about your future.

Don't assume "I didn't really steal anyone's identity" is a defense. Don't assume the prosecutor won't add this charge because your conduct seems minor. Don't wait until the hammer falls to start taking this seriously.

We've seen what happens when people underestimate aggravated identity theft charges. We've seen the shock on faces when mandatory minimums get explained. We've seen cases that could have ended with probation instead end with years in prison because nobody fought the 1028A charge effectively.

Dont let that be your story. Call Spodek Law Group today. 212-300-5196. Lets fight this together.