6th Cir. Pattern Crim. Jury Instr. 15.04

(1) Count _____ of the indictment charges the defendant with [transferring] [possessing] [using] a means of identification of another person during and in relation to a felony violation listed in the statute.

For you to find the defendant guilty of this crime, you must find that the government has proved each and every one of the following elements beyond a reasonable doubt:

(A) First: That the defendant committed the felony violation of [include name of felony and citation] charged in Count _____ . The violation charged in count ____ is a felony violation listed in the statute.

(B) Second: That the defendant knowingly [transferred] [possessed] [used] a means of identification of another person without lawful authority.

(C) Third: That the defendant knew the means of identification belonged to another person.

(D) Fourth: That the [transfer] [possession] [use] was during and in relation to the felony of [include name of felony and citation] charged in Count ____.

(2) Now I will give you more detailed instructions on some of these terms.

(A) The term “means of identification” is defined as any name or number that may be used to identify a specific individual, including any

– [name]

– [social security number]

– [date of birth]

– [official government-issued driver's license or identification number]

– [alien registration number]

– [government passport number]

– [employer or taxpayer identification number]

– [unique biometric data, such as fingerprint, voice print, retina or iris image, or

other unique physical representation]

– [unique electronic identification number, address, or routing code] or

– [telecommunication identifying information or access device].

(B) The term “[transfer] [possess] [use]” is defined as follows. [Insert definition(s) from three options below as appropriate.]

(i) [The term “transfer” includes selecting an [identification document] [false identification document] and placing or directing the placement of such document on an online location where it is available to others.]

(ii) [Insert applicable definition of possession from Instructions 2.10, 2.10A, and 2.11 here or as a separate instruction.]

(iii) [The term “use” means active employment of the means of identification during and in relation to the crime charged in Count ____ . “Active employment” includes activities such as displaying or bartering. “Use” also includes a person’s reference to a means of identification in his possession for the purpose of helping to commit the crime charged in Count _____ .]

(C) An act is done “knowingly” if done voluntarily and intentionally, and not because of mistake or accident or other innocent reason. [The government is not required to prove that the defendant knew that his actions violated any particular provision of law, or even knew that his actions violated the law at all. Ignorance of the law is not a defense to this crime.]

[(D) The phrase “without lawful authority” does not require that the defendant stole the means of identification information from another person but includes the defendant obtaining that information from another person with that person’s permission or consent.]

(E) The [transfer] [possession] [use] of a means of identification is “during and in relation to” the felony of [include name of felony and citation] charged in Count _____ if the [transfer] [possession] [use] of the means of identification was at the crux of the underlying criminality and the identities played a key role in the commission of the predicate felonies. [In cases where the underlying crime involves fraud or deceit, the means of identification must have been [transferred] [possessed] [used] in a manner that is fraudulent or deceptive.]

(3) If you are convinced that the government has proved all of these elements, say so by returning a guilty verdict on this charge. If you have a reasonable doubt about any one of these elements, then you must find the defendant not guilty of this charge.

Use Note

If the predicate felony violation is not charged in the same indictment, the court must instruct the jury on its duty to find the elements of the predicate felony violation beyond a reasonable doubt.

This instruction assumes that the defendant is charged in the same indictment with both the predicate felony violation and the aggravated identity crime; if these crimes are not charged in the same indictment, this instruction must be modified.

In paragraph (1)(A), the felony violation identified as the predicate for the aggravated identity crime must appear on the list of felony violations in § 1028A(c). The court must confirm that the predicate felony violation is on the list of felony violations in the statute.

In paragraph (1)(B), insert the appropriate verb or verbs implicated by the facts of the case from the three options of transfer, possess or use. In paragraph (2)(B), insert the appropriate definitions to correspond with the verb(s) used in paragraph (1)(B).

In paragraph (2)(C), the bracketed sentences stating that the government need not prove knowledge of the law should be used only if relevant.

Bracketed paragraph (2)(D) should be used only if relevant.

18 U.S.C. § 1028(d) provides definitions for many terms used in § 1028A.

Brackets indicate options for the court. Brackets with italics are notes to the court.

Committee Commentary Instruction 15.04

(current through May 29, 2026)

Title 18 U.S.C. § 1028A(a)(1) states: “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.” This section establishes a mandatory consecutive penalty enhancement of two years in addition to any term of imprisonment for the underlying offense. See Section-by-section analysis and discussion of H.R. 1731, H.R. Rep. No.108-528 at page 785-86 (June 8, 2004).

This instruction assumes that the defendant is charged in the same indictment with both the underlying felony violation and the aggravated identity crime, and that the evidence of both is sufficient. The Committee used this approach because the predicate felony violation and the aggravated identity crime will usually be charged in the same indictment. See, e.g., United States v. White, 296 F. App’x 483 (6th Cir. 2008) (unpublished). No authority from the Supreme Court addresses whether these specific crimes must be charged in the same indictment. A panel of the Sixth Circuit has noted that both offenses need not be charged in the same indictment. United States v. Jacobs, 545 F. App’x 365, 366-67 (6th Cir. 2013) (unpublished), citing United States v. Jenkins-Watts, 574 F.3d 950, 970 (8th Cir. 2009). So if the underlying felony violation and the aggravated identity crime are not charged in the same indictment, this instruction should be modified. Moreover, if the predicate felony violation is not charged in the same indictment, the court must instruct the jury on its duty to find the elements of the predicate felony violation beyond a reasonable doubt. Jacobs, id. Requiring the jury to find the elements of the underlying felony violation is additionally important because the penalty enhancement for aggravated identity theft does not include its own jurisdictional base, but rather depends on the jurisdictional base established in the underlying felony violation.

The list of four elements in paragraph (1) is supported by United States v. Gandy, 926 F.3d 248, 258 (6th Cir. 2019) (citing Inst. 15.04 with approval); see also United States v.Vance, 956 F.3d 846, 857 (6th Cir. 2020) (identifying the same factors in two elements).

The predicate felony violation identified in paragraph (1)(A) must be on the list of qualifying felony violations in § 1028A(c). The court must confirm that the felony violation involved in the case is one of the qualifying felony violations listed in the statute. As noted above, based on Sixth Circuit case law for an analogous firearms crime, the court must instruct the jury on the elements of the underlying felony violation. United States v. Kuehne, 547 F.3d 667 at 680-81 (6th Cir. 2008) (holding in § 924(c) case, failure to separately instruct jury regarding elements of underlying drug trafficking crime was error but harmless).

The language in paragraph (1)(B) requiring that the transfer, possession, or use be without lawful authority is drawn verbatim from the statute; see also Gandy, supra.

The language of paragraph (1)(C) requiring the defendant to know that the identification belonged to another person is based on Flores-Figueroa v. United States, 129 S.Ct. 1886, 1894 (2009). In Flores-Figueroa, the Court stated that for the aggravated identity crime in § 1028A(1), based on “ordinary English grammar, it seems natural to read the statute’s word ‘knowingly’ as applying to all the subsequently listed elements of the crime.” Id. at 1890 (citing United States v. X-Citement Video, Inc., 513 U.S. 64, 79 (1994)). The Court further noted that the statute is designed to deal with identity theft and that in other theft statutes, Congress required the offender to know that the item he took actually belonged to a different person. Id. at 1893. The Sixth Circuit quoted paragraph (1)(C) with approval in Gandy, supra. The Gandy court also concluded that the convictions were adequately supported by circumstantial evidence that the defendants knew the identifications belonged to real people. Gandy, supra at 259 (“In sum, the government put forth circumstantial evidence from which the jury could have concluded beyond a reasonable doubt that [defendants] knew that they were using the names and personal identifying information of real people.”).

In paragraphs (1)(A), (1)(D), and (2)(E), the language requiring the identification of the underlying felony violation by name and citation is based on United States v. Nicolescu, 17 F.4th 706 (6th Cir. 2021).

In paragraph (2)(A), the definition of “means of identification” is based on § 1028(d)(7). That subsection states:

(7) the term “means of identification” means any name or number that may be used, alone or in conjunction with any other information, to identify a specific individual, including any--

(A) name, social security number, date of birth, official State or government issued driver's license or identification number, alien registration number, government passport number, employer or taxpayer identification number;

(B) unique biometric data, such as fingerprint, voice print, retina or iris image, or other unique physical representation;

(C) unique electronic identification number, address, or routing code; or

(D) telecommunication identifying information or access device (as defined in section 1029(e)) . . . .

The definition in paragraph (2)(A) incorporates this exact statutory language except that it omits the prefatory phrase “alone or in conjunction with any other information” as unnecessary and it omits the parenthetical cite at the end. If the issue of whether the means of identification was used alone or along with other information is raised by the facts of the case, this phrase may be reinserted.

In paragraph (2)(B)(i), the language stating that transfer includes selecting and placing an item on an online location is based on § 1028(d)(10). The Committee put options in the definition into brackets to minimize unnecessary words and facilitate tailoring the instruction to fit the case. The options (identification document and false identification document) are not defined in the instruction but definitions are available in § 1028(d)(3) and (d)(4), respectively.

The definition of “possess” in paragraph (2)(B)(ii) is a cross-reference to other pattern instructions which define that term in federal crimes generally based on Supreme Court and Sixth Circuit cases. See Instructions 2.10, 2.10A, and 2.11.

In paragraph (2)(B)(iii), the definition of “use” is adapted from Supreme Court and Sixth Circuit case law defining that term in the context of the firearms crime of using or carrying a firearm during and in relation to a predicate crime under § 924(c). See Bailey v. United States, 516 U.S. 137 (1995) and United States v. Combs, 369 F.3d 925, 932 (6th Cir. 2004) (quoting Bailey’s definition of use). In Bailey, the Court held that under § 924(c)(1), use of a firearm “requires evidence sufficient to show an active employment of the firearm by the defendant, a use that makes the firearm an operative factor in relation to the predicate offense.” Bailey, 516 U.S. at 143 (emphasis in original). The Court explained further:

To illustrate the activities that fall within the definition of “use” provided here, we briefly describe some of the activities that fall within “active employment” for a firearm, and those that do not.

The active-employment understanding of “use” certainly includes brandishing, displaying, bartering, striking with, and most obviously, firing or attempting to fire, a firearm. . . . [E]ven an offender’s reference to a firearm in his possession could satisfy § 924(c)(1). Thus, a reference to a firearm calculated to bring about a change in the circumstances of the predicate offense is a “use,” just as the silent but obvious and forceful presence of a gun on a table can be a “use.”

* * *

A possibly more difficult question arises where an offender conceals a gun nearby to be at the ready for an imminent confrontation [citation omitted]. . . . In our view, “use” cannot extend to encompass this action. If the gun is not disclosed or mentioned by the offender, it is not actively employed, and it is not “used.” . . . Placement for later active use does not constitute “use.”

Bailey, 516 U.S. at 148-49. The language in the definition stating that the use of the means of identification must be “for the purpose of helping to commit the crime charged in Count ___” is a plain English version of the standard “calculated to bring about a change in the circumstances of the predicate offense” articulated in Bailey and quoted supra.

In United States v. Miller, 734 F.3d 530 (6th Cir. 2013), the court resolved a statutory interpretation question on the breadth of the term “use” when applied only to another person’s name under § 1028A(a)(1). Based on the context of that particular statute, the court concluded the term was ambiguous and so applied the rule of lenity to adopt the narrower interpretation. Thus when the defendant used the name of another person to falsely state that person did something he did not do, but the defendant did not pass himself off as that person, the defendant did not “use” the name of another person as that term is defined in § 1028A(a)(1).

In United States v. Medlock, 792 F.3d 700 (6th Cir. 2015), the court again found that “use” was not met. The defendants submitted claims for reimbursement to Medicare for transporting patients. The court held that the defendants did not “use” the names and Medicare identification numbers of the particular patients on the claims because the defendants really did transport those patients; what they lied about was their eligibility for reimbursement. Id. at 706, 708, 712. In support of this limited definition of use, the court quoted the definition of use in Instruction 15.04(2)(B)(iii). See Medlock, 792 F.3d at 706 (“In addition, the Sixth Circuit’s Pattern Jury instructions seem to contemplate a narrow reading of ‘use’ in § 1028A.”).

In United States v. White, 846 F.3d 170 (6th Cir. 2017), the court distinguished Miller and Medlock and held that “use” was met. The defendant was a travel agent who manufactured fake military identification cards and sent them to airlines to get lower airfares for her non-military-member clients. Id. at 172. The court explained, “White did more than simply lie about whether her clients were eligible for military discounts. . . . . The distinction in this case . . . arises from White's actions in creating false military identification cards and attempting to pass them off as her clients' own personal means of identification.” White, 846 F.3d at 177.

In the absence of authority under § 1028A, the definition of knowingly in paragraph (2)(C) is based on United States v. Svoboda, 633 F.3d 479 (6th Cir. 2011), in which the court found no error in instructions defining “knowingly” in a prosecution under § 1028(a)(6) (see Inst. 15.03). The first sentence is drawn verbatim from the instruction used in Svoboda, supra at 485. The two sentences stating that the defendant need not have knowledge of the law are also drawn from Svoboda, but are included in brackets for use only when relevant in the particular case.

In paragraph (2)(D), the definition of “without lawful authority” is based on United States v. Lumbard, 706 F.3d 716, 723-25 (6th Cir. 2013). In an unpublished opinion, a panel found no abuse of discretion when the trial court instructed that, “If the defendant obtained someone else's means of identification and used it for some unlawful purpose, the defendant has acted ‘without lawful authority.’” United States v. Rosenbaum, 628 Fed. Appx. 923, 932-933 (6th Cir. 2015) (unpublished).

The definition of “during and in relation to” in paragraph (2)(E) is based on Dubin v. United States, 143 S. Ct. 1557 (2023) and United States v. King, 126 F.4th 440 (6th Cir. 2025). In Dubin, the Court held that “§ 1028A(a)(1) is violated when the defendant's misuse of another person's means of identification is at the crux of what makes the underlying offense criminal, rather than merely an ancillary feature of a billing method.” Id. at 1563. The Court stated that being “at the crux of the criminality” requires more than a causal relationship, such as facilitation of the offense or being a but-for cause of its success. Id. at 1573. Instead, with underlying fraud or deceit crimes like the one in this case (health care fraud, § 1347), the means of identification specifically must be used in a manner that is fraudulent or deceptive. Id. at 1568. Noting the Sixth Circuit’s reasoning in United States v. Michael, 882 F.3d 624 (6th Cir. 2018), the Court explained, “When a means of identification is used deceptively, this deception goes to ‘who’ is involved, rather than just ‘how’ or ‘when’ services were provided.” Id. The Court rejected the government's reading that any time another person's means of identification was employed in a way that facilitated a crime, the statute covered it.

In United States v. King, 126 F.4th 440 (6th Cir. 2025), the court concluded that the jury instructions on Dubin were not plain error. The district judge used the pattern instruction as it existed before Dubin had been incorporated into it and then added the following sentence on Dubin: “[T]he means of identification must be the crux of the facilitation or furtherance of the felony . . . and the presence or involvement of the means of identification cannot be merely ancillary.” King at 444 (cleaned up). The Sixth Circuit rejected defendant’s argument that the instruction was plain error because it failed to include the Dubin Court’s additional statement that “being at the crux of the criminality requires more than a causal relationship, such as facilitation of the offense or being a but-for cause of its success.” King at 444, quoting Dubin, 599 U.S. at 131 (cleaned up). The Sixth Circuit concluded that the modified instruction adequately conveyed the law because it stated that “the means of identification [must be] at the crux of the underlying criminality and that the identities had to have played a key role in the commission of the predicate felonies.” King at 444 (cleaned up). The definition of “during and in relation to” in paragraph (2)(E) reflects this holding by stating that the use of the means of identification is during and in relation to the predicate felony if the [transfer] [possession] [use] of the means of identification was at the crux of the underlying criminality and the identities played a key role in the commission of the predicate felonies.

Outside the context of jury instructions, Sixth Circuit case law provides some examples on the scope of Dubin. In Dubin, when the defendant overbilled Medicaid for psychological testing performed by the company he helped manage, the Court concluded that “use” was not met because the use of the patient's name was not at the crux of what made the underlying overbilling fraudulent. The crux of the fraud was a misrepresentation about the qualifications of petitioner's employee, and the patient's name was only an ancillary feature of the billing method employed. Id. at 1573-1574. The Court drew on the Sixth Circuit’s analysis in Michael, supra. There, the court held that § 1028A could apply to a case in which a pharmacist falsely used the name and prescriber doctor and the name and date of birth of a patient to submit claims for insurance reimbursement for medication that the doctor had not prescribed and the patient had not requested be submitted. 882 F.3d at 628 (distinguishing United States v. Medlock, 792 F.3d 700 (6th Cir. 2015) (where named patients actually received ambulance services but the defendants mischaracterized the nature of services)).

In U.S. v. O’Lear, 90 F.4th 519, 532-533 (6th Cir. 2024), the defendant was convicted of healthcare fraud, making a false statement in connection with healthcare services, and aggravated identity theft. He argued that his identity theft convictions were outside the scope that Dubin defined for the offense because his use of patients’ identities when filing fraudulent healthcare claims was “ancillary” to (not the “crux” of) his fraud. The court disagreed and affirmed the convictions, explaining why his conduct was within the scope of Dubin:

Unlike in Dubin, the government did not charge O'Lear with stealing the patients’ identities. It alleged that he forged the signatures of a physician and an x-ray technician to make it appear as if these individuals had ordered or conducted the x-rays he billed for. In other words, O'Lear used the identities of these professionals in a “deceptive” way that went to the “crux” of his scheme to bill for fictitious x-rays.

Id. at 533.

In United States v. King, 126 F.4th 440 (6th Cir. 2025), the defendant was convicted of health care fraud, making false statements relating to health care matters, and aggravated identity theft. He argued that the indictment did not state an offense for aggravated identity theft because it did not satisfy the Dubin crux-of-the-underlying-felony requirement. The court rejected the argument:

The government alleged that King submitted claims for reimbursement for services never rendered. Put simply, he used [patients'] identifying information to fashion a fraudulent submission out of whole cloth, making the misuse of these means of identification “during and in relation to”–indeed integral to–the predicate act of healthcare fraud. Liberally construed, this is sufficient and no plain error occurred.

Id. at 443 (citation omitted).

The extent of the Dubin holding is somewhat uncertain. As quoted in the first paragraph of the commentary, the statute prohibits conduct with three verbs: transfer, possess, and use. The Dubin case involved “use” and so clearly applies to that verb, but the opinion leaves some uncertainty on whether and how it applies to “transfer” and “possession.” These two verbs may constitute open questions, but the Committee decided at this point that it was best to assume Dubin applied to all three verbs. Whether this assumption is correct can only be resolved with the development of more case law.

The good-faith defense (see Instruction 10.04) is not available to a defendant charged with a violation of § 1028(a)(6) who claims he relied on a legal interpretation of a layman. Svoboda, supra at 484.