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UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF INDIANA 

HAMMOND DIVISION 

UNITED STATES OF AMERICA ) 

 ) 

 v. ) CAUSE NO. 2:14 CR 80 

 ) 

ELBERT JOHNSON )

JOINT RESPONSE TO THE COURT’S INQUIRY ON AUGUST 22, 2014 

 Comes now the United States of America, by and through its attorneys, David Capp, 

United States Attorney for the Northern District of Indiana, through Toi Denise Houston and 

Gary T. Bell, Assistant United States Attorneys, and Elbert Johnson, with consent of his attorney 

Mark Psimos, and responds to the Court’s order requesting information about the crime of 

aggravated identity theft, as follows: 

1. Background 

 On August 7, 2014, the government filed a Felony Information charging Elbert Johnson 

with conspiracy to commit identity theft, making false claims to the government, aggravated 

identity theft and filing a false tax return. (DE # 1) At the same time, the parties filed a plea 

agreement. In that agreement, Johnson agreed to plead guilty to all of the charges in the 

Information, and provided a factual basis supporting the guilty plea. (DE # 2, ¶s 7a; 8) 

 Regarding the aggravated identity theft charges, Counts 5 and 6 allege that Johnson 

transferred, possessed and used, without lawful authority, the means of identification of two 

persons during and in relation to the federal crimes of wire fraud and theft of government funds. 

Both counts cite to the applicable federal statute for wire fraud and theft of government funds. 

(DE # 1, page 6) 

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The crime of aggravated identify theft, as set forth in 18 U.S.C. § 1028A(a)(1), provides: 

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. 

18 U.S.C. § 1028A(a)(1). Subsection (c) of 1028A contains a list of felony violations which 

serve as predicate offenses. Wire fraud and theft of government funds are predicate offenses. 

See, 18 U.S.C. §§1028A(c)(1) and (c)(5). 

 In the plea agreement, Johnson admitted the essential elements of aggravated identity 

theft – that is, he admitted possessing and using the means of identification of other persons 

during and in relation to wire fraud and while stealing government funds. In particular, Johnson 

admitted that he stole personal identifying information from prison websites and filed false 

federal tax returns which caused the government to issue refunds, some by electronic wire 

transfers, totaling more than $500,000. (DE # 2, pages 6-7) Regarding Counts 5 and 6, at the 

plea hearing, it is anticipated that Johnson will admit possessing and using the means of 

identification of both individuals listed in the counts, and that he received the stolen tax refund 

money through the interstate electronic transfer of the refunds. 

 Although the Information does not independently charge Johnson with wire fraud or theft 

of government funds, the factual basis in the plea agreement shows that Johnson committed the 

required elements of each offense. To convict a defendant of wire fraud, the government must 

prove: (1) the defendant participated in a scheme to defraud; (2) the defendant intended to 

defraud; and (3) a use of an interstate wire in furtherance of the fraudulent scheme. United States 

v. Radziszewski, 474 F.3d 480, 484-85 (7th Cir. 2007). Stealing personal identifying information 

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from prison websites and filing false tax returns with the IRS shows that Johnson engaged in a 

scheme to defraud and that he intended to defraud the IRS. Further, because many of the refunds 

were transferred through interstate electronic signals, Johnson committed wire fraud. At the plea 

hearing, the government will explain how the two tax returns filed in Counts 5 and 6 were 

refunded by interstate electronic signals. Johnson will not contest this evidence. The same 

conduct also establishes that Johnson committed theft of government funds, which only requires 

proof that a defendant embezzled, stole or knowingly converted more than $1,000 from the 

government. See, United States v. Beard, 713 F.Supp. 285, 287 (S.D.Ind. 1989); United States v. 

Jenkins, 2012 WL 1571507 (E.D.Wis. 2012). Accordingly, both parties believe that Johnson can 

and will establish a factual basis for the predicate crimes of wire fraud and theft of government 

funds, which are elements of the crime of aggravated identity theft as charged in this case. As 

explained below, it is not necessary that Johnson be charged or convicted of these offenses. 

2. The Crime of Aggravated Identity Theft Does Not Require That a Defendant Be 

Convicted of, or Even Be Charged With a Predicated Offense. 

18 U.S.C. § 1028A(a)(1) provides that "[w]hoever, 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." The enumerated 

felonies include wire fraud and theft of government funds. 

Section 1028A(a)(1) is a standalone crime and does not require the defendant to be 

convicted of, or even be charged with, the predicate offense. The language of the statute is clear 

that aggravated identity theft occurs during or in relation to a violation of the enumerated 

offense, not during and in relation to a conviction of the enumerated offense. If Congress 

intended for the government to secure a finding of guilt or a conviction of the predicate offense 

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in order to trigger a sentencing provision or as an element of a Section 1028A violation, 

Congress would have specified such a requirement within the express language of the statute. 

See Altra Group, Inc. V. Good, 129 S.Ct. 538, 543 (2008) (Congress may indicate intent through 

statute's language); United States v. Clintwood Elkhorn Min. Co., 128 S.Ct. 1511, 1518 (2008) 

(strong presumption that plain language of statute expresses congressional intent). 

In United States v. Jenkins-Watts, 574 F.3d 950, 970 (8th Cir. 2009), the Eighth Circuit 

found that the government's decision to charge the defendant with four counts of aggravated 

identity theft, and not the predicate offenses of access device fraud, did not render the indictment 

fatally insufficient so as to fail to charge the offense of conviction or deprive the court of 

jurisdiction. See also, United States v. Lopez-Diaz, 940 F.Supp.2d 39 (D.P.R. 2013) (means of 

identification only has to be knowingly transferred, possessed, or used without lawful authority 

"during and in relation to" any enumerated felony; 1028A does not require that the defendant be 

convicted of the underlying offense, only that he committed it); United States v. Vidal-Reyes, 

562 F.3d 43, 55 n. 9 (1st Cir. 2009) (assuming without deciding that the government may charge 

the defendant with violating § 1028A without charging the predicate offense); United States v. 

Hicks, No. 2:12 CR 9 (M.D. Ala. Order, December 9, 2013) (after filing false tax returns to steal 

more than $250,000, defendant pled guilty to aggravated identity theft and non-predicate crime 

of filing false claim with government. To provide a factual basis on the aggravated identity theft 

count, the defendant “admitted that he was guilty of a count of Wire Fraud, 18 U.S.C. § 1343, 

which is a predicate offense listed in the Aggravated Identity Theft statute.”) 

In Jenkins-Watts, supra, the court found no deficiency as to the Section 1028A count 

where the indictment did not charge the predicate offense in a separate count. The court cited to 

its earlier interpretation of Section 924(c) in support of its decision. Analogous to the aggravated 

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identity theft statute is a charge pursuant to 18 U.S.C. §924(c) which requires that a charged 

defendant use, carry, or possess a firearm during or in relation to a crime of violence or drug 

trafficking crime. See also, United States v. Frye, 402 F.3d 1123, 1127-28 (11th Cir. 2005) 

(collecting cases standing for proposition that defendant charged with violating section 924(c) 

must be proven to have committed the underlying crime, but need not be separately charged with 

or convicted of underlying offense). In Frye, the Eleventh Circuit court found that Section 

924(c) did not require that the defendant be convicted or charged with the predicate offense. 

While it is required that the government prove that the defendant committed the underlying 

offense, it is not required that he be charged with the underlying offense. Id. at 1127; United 

States v. Green, 521 F.3d 929, 934 (8th Cir. 2008) (concluding that the government's dismissal 

of the predicate offense was irrelevant "since a [18 U.S.C.] § 924(c) defendant need not be 

convicted of the underlying crime of violence"); Myers v. United States, 993 F.2d 171, 172 (8th 

Cir.1993) (per curiam) (holding that a defendant charged with violating Section 924(c) must be 

proven to have committed the underlying crime, but he need not be separately charged with and 

convicted of the underlying offense). 

3. The Court Must Impose a Two Year Sentence For an Aggravated Identity Theft 

Conviction and it Must be Consecutive to Any Other Non-Aggravated Identity 

Offense 

When a defendant is found guilty of aggravated identity theft, the district court cannot 

place the defendant on probation and must impose two years of incarceration. 18 U.S.C. § 

1028A(b)(1). Further, the district court cannot impose a concurrent sentence to any other count 

of conviction, including non-predicate offenses. 18 U.S.C. § 1028A(b)(2) (“no term of 

imprisonment imposed on a person under this section shall run concurrently with any other term 

of imprisonment imposed on the person under any other provision of law, including any term of 

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imprisonment imposed for the felony during which the means of identification was transferred, 

possessed, or used”) (emphasis added). See also, Hicks, supra, (imposing a two year sentence 

consecutive to the non-predicate offense.) However, when there are multiple aggravated identity 

theft convictions, the district court has discretion to impose concurrent sentences on those counts 

only. 18 U.S.C. §§ 1028A(b)(2) and (b)(4). As a result, based on the statute and case law, the 

parties believe that the Court must impose two year sentence on Counts 5 and 6, although the 

Court has discretion to impose a concurrent sentence on Counts 5 and 6. Further, regarding the 

other offenses, the Court must impose the 2 year sentence for an aggravated identity theft 

conviction consecutive to any other sentence imposed. 

Respectfully submitted, 

DAVID A. CAPP 

UNITED STATES ATTORNEY 

By: s/ Toi Denise Houston By: s/ Mark Psimos 

Toi Denise Houston Mark Psimos, Esq. 

Assistant United States Attorney Attorney for Defendant Elbert Johnson 

By: s/ Gary T. Bell 

Gary T. Bell 

Assistant United States Attorney 

 

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Certificate of Service

I hereby certify that on August 26, 2014 I electronically filed the foregoing with the Clerk 

of the Court using the CM/ECF system which sent notification of such filing to the following: 

Mark A Psimos 

psimoslaw@airbaud.net

and I hereby certify that I have mailed by United States Postal Service the document to the 

following non CM/ECF participants: 

None

 /s/ Gloria Powell 

 Gloria Powell 

 Legal Assistant 

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