Conspiracy to Commit Aggravated Identity Theft (18 U.S.C. 1028A; 18 U.S.C. 371)

Categories: Medicare Lawyer

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Enacted in 2004, 18 U.S.C. 1028A establishes the federal crime of “aggravated identity theft.” When pursuing charges for a felony offense such as bank fraud, mail fraud, or wire fraud, federal prosecutors will frequently pursue charges for aggravated identity theft as well. Aggravated identity theft carries a mandatory two year prison sentence. By statute, this sentence must run consecutively to the period of incarceration for the underlying felony offense.

As with other federal charges common to Medicare fraud investigations, prosecutors will often pursue charges for conspiracy to commit aggravated identity theft as well. If prosecutors cannot prove that you committed aggravated identity theft but they can prove that you participated in a conspiracy to commit aggravated identity theft, then they can – and will – pursue charges under 18 U.S.C. 371. This statute provides:

“If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both.”

You Are under Investigation for Conspiracy to Commit Aggravated Identity Theft. What Now?

So, your health care business or medical practice is under investigation for conspiracy to commit aggravated identity theft (and probably several other federal offenses). What should you do next?

1. Engage Experienced Defense Counsel

First and foremost, you need to engage experienced defense counsel. Many of the federal prosecutors who handle Medicare fraud investigations are among the most tenured attorneys in the entire U.S. Department of Justice (DOJ). Without a comparable level of experience in federal investigations, you are at a severe disadvantage. The only way to level the playing field is to hire an experienced federal health care fraud defense attorney.

2. Assess Your Exposure

Under 18 U.S.C. 1028A, aggravated identity theft involves knowingly transferring, possessing, or using someone else’s identity without lawful authority. Will the DOJ be able to build a case against you? Both the aggravated identity theft statute and the conspiracy statute are broader than they may initially seem. And in order to assess your exposure, you need to determine whether you (or anyone else in your business or practice) may have taken the steps necessary to establish criminal culpability.

3. Take Any Immediate Action Necessary

If your internal assessment suggests that remedial action is necessary, it will be important to take appropriate action immediately. If it is not too late, you may be able to withdraw from the conspiracy or renounce the conspiracy in order to mitigate your exposure. It may also be in your best interests to cooperate with federal prosecutors – although this is a decision that needs to be made very carefully with the guidance of your federal defense attorney.

4. Execute a Strategic Defense

Once you have assessed your exposure and addressed any outstanding issues, your next step is to execute a strategic defense. As long as you are still under investigation, it is not too late to avoid federal charges; this should absolutely be your top priority. A comprehensive defense strategy will involve challenging the government’s evidence and investigative practices, questioning prosecutors’ assumptions, and asserting appropriate affirmative defense with the goal of leaving the DOJ with no choice but to leave you alone.

If You Are under Investigation for Aggravated Identity Theft, You Are Also under Investigation for Another Federal Felony Offense

When defending against allegations of conspiracy to commit aggravated identity theft, it is important to understand that you are also under investigation for another federal felony offense. This is a function of the language of the aggravated identity theft statute, 18 U.S.C. 1028A:

“(a)(1) Whoever, during and in relation to any felony violation enumerated in subsection (c), knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person shall, in addition to the punishment provided for such felony, be sentenced to a term of imprisonment of 2 years.”

Felony violations “enumerated in subsection (c)” include:

  • Bank fraud
  • Mail fraud
  • Wire fraud
  • Other crimes involving fraud and false statements (including various forms of health care fraud)

With this in mind, when seeking to understand why you have been implicated in a conspiracy involving identity theft, it is necessary to determine what other crime (or crimes) you are being investigated for as well. Many of the crimes that can trigger aggravated identity theft allegations carry enormous fines and long-term imprisonment. If you do not defend yourself effectively, you could suddenly find yourself fighting to avoid a life-altering sentence at trial.

Choosing Legal Representation for Your Federal Criminal Investigation

With so much at stake, you need to choose an attorney who is not only willing to represent you, but who has a significant record of success in federal matters. Many attorneys advertise themselves as federal lawyers, health care lawyers, and criminal trial lawyers, but our attorneys devote themselves to successfully defend clients in large-scale federal investigations. Dr. Nick Oberheiden is a federal health care defense lawyer who has represented clients nationwide in complex federal matters, and he has helped the majority of his clients resolve their investigations without facing criminal charges.

If you are under investigation for conspiracy to commit aggravated identity theft, Dr. Oberheiden offers:

  • A significant record of success in federal criminal investigations
  • Specific experience representing health care providers in Medicare-related investigations
  • Testimonials and recommendations from clients and attorneys across the country
  • A relentless approach to protecting his clients’ freedom and ability to practice

Schedule a Free Consultation with Federal Health Care Fraud Defense Attorney Dr. Nick Oberheiden

Are you being investigated by federal agents? Have you been contacted by the U.S. Attorney’s Office or another arm of the DOJ? If so, Dr. Oberheiden can help protect you. To discuss your case in a free and confidential consultation, call (888) 356-4634 now.

This information has been prepared for informational purposes only and does not constitute legal advice. This information may constitute attorney advertising in some jurisdictions. Merely reading this information does not create an attorney-client relationship. Prior results do not guarantee similar outcomes in the future. Oberheiden, P.C. is a Texas professional corporation with its headquarters in Dallas. Mr. Oberheiden limits his practice to federal law.

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