Is fraud a felony?

Fraud means using lies or deception to get money, property or something else of value. The crime goes by many names, including scheme to defraud, identity theft, credit card fraud and mail or wire fraud.^1,2

Federal law describes it as a scheme or artifice to defraud, or to obtain money or property by false or fraudulent pretenses, representations or promises. New York's scheme to defraud law covers an ongoing course of conduct with intent to defraud more than one person. None of the states we checked has one single "fraud" crime. Each has many separate laws, so the grade depends on which one is charged.

Identity theft is using another person's identifying information, such as a name, Social Security number or card number, without permission to get something of value or to pass as that person.^3,4,5

Pennsylvania's law covers possessing or using another person's identifying information without consent to further any unlawful purpose. Virginia's covers obtaining money, credit, goods or services, or identification documents, through another person's identifying information, with intent to defraud.

Credit card fraud generally means using a credit or debit card you know was not issued to you, or that you have no permission to use, to get money, goods or services.^6,7

Texas calls the offense credit card or debit card abuse and also covers stealing a card, buying one from someone who is not the issuer, and using a fictitious card. Florida's law covers using a card obtained or retained in violation of the law or a card the person knows is forged.

Small-dollar fraud is often a misdemeanor. Florida credit card fraud is a first-degree misdemeanor when it happens two or fewer times in six months or the value is under $100. Pennsylvania identity theft under $2,000 is a first-degree misdemeanor.^3,7,8

New York makes identity theft in the third degree a class A misdemeanor, and a scheme to defraud in the second degree a class A misdemeanor. Virginia punishes identity theft as a Class 1 misdemeanor unless an exception applies.

Fraud becomes a felony when the loss or value passes a state-set line. The lines in our examples are over $500 in New York, $1,000 or more in Virginia and Ohio, $2,000 or more in Pennsylvania and $5,000 or more in Florida, depending on the offense.^3,5,9,10,11

New York's identity theft in the second degree applies above $500 and the first degree above $2,000. Virginia makes identity theft a Class 6 felony when the financial loss is $1,000 or more. Ohio raises identity fraud to a fourth-degree felony at $1,000. Pennsylvania's third-degree felony starts at $2,000. Florida's second-degree felony applies at $5,000 or more.

In some states, identity theft is a felony no matter how little is taken. Florida, Texas and Ohio all grade the basic offense as a felony.^6,10,11

Florida's basic offense is a third-degree felony. Texas's is a state jail felony when fewer than five items of identifying information are involved. Ohio's is a fifth-degree felony unless a higher value applies.

The number of victims or items can raise the grade. In Florida, using the information of 10 to 19 people is a second-degree felony, and 20 to 29 people a first-degree felony. In Texas, the grade rises with the number of items of identifying information involved.^6,11,12

Texas grades the offense as a state jail felony for fewer than 5 items, a third-degree felony for 5 to fewer than 10, a second-degree felony for 10 to fewer than 50, and a first-degree felony for 50 or more. New York makes a scheme to defraud 10 or more people, or more than one person with property over $1,000 taken, a class E felony.

Earlier convictions and older or young victims can also raise the grade. Pennsylvania moves identity theft up one grade when the victim is 60 or older or under 18, and a third offense is a second-degree felony.^3,5,10

Virginia makes a second or later identity theft conviction a Class 6 felony. Ohio has a separate, higher-graded offense when the victim is an elderly person, disabled adult or active duty service member.

Texas

Texas: fraudulent use of identifying information is a state jail felony at the lowest level. Credit or debit card abuse is also a state jail felony. Fraudulently getting a document signed is a misdemeanor or felony depending on value.⁶

Credit card abuse is a third-degree felony if the victim is elderly. Securing a document by fraud is a Class C misdemeanor under $100 and rises to a state jail felony at $2,500 or more.

Florida

Florida: fraudulent use of personal identification information is a third-degree felony. It is a second-degree felony at $5,000 or more and a first-degree felony at $50,000 or more. Credit card fraud is a first-degree misdemeanor or a third-degree felony.^7,8,11

Credit card fraud is a third-degree felony when a person uses a card more than twice in six months or obtains $100 or more. The second- and first-degree identity offenses carry mandatory minimum prison terms of 3 and 5 years.

California

California: using another person's identifying information for an unlawful purpose is punishable by up to one year in county jail or by a felony jail sentence under Penal Code section 1170(h). It can be charged as a misdemeanor or a felony.^13,14

Acquiring or keeping another person's identifying information with intent to defraud is punishable by a fine, up to one year in county jail, or both.

New York

New York: identity theft is a class A misdemeanor in the third degree, a class E felony in the second degree (over $500) and a class D felony in the first degree (over $2,000).^9,15,16

A scheme to defraud is a class A misdemeanor in the second degree and a class E felony in the first degree. Stealing a credit or debit card is grand larceny in the fourth degree, a class E felony, at any value.

Pennsylvania

Pennsylvania: identity theft is a first-degree misdemeanor when the value is under $2,000 and a third-degree felony at $2,000 or more.³

It is a third-degree felony at any value if committed in furtherance of a criminal conspiracy, and a second-degree felony for a third or later offense. A victim aged 60 or older, a care-dependent person or a minor raises the grade by one level.

Ohio

Ohio: identity fraud is a fifth-degree felony. It is a fourth-degree felony at $1,000 up to $7,500, a third-degree felony at $7,500 up to $150,000 and a second-degree felony at $150,000 or more.¹⁰

Virginia

Virginia: identity theft is a Class 1 misdemeanor. It is a Class 6 felony when the financial loss is $1,000 or more or on a second conviction.⁵

Obtaining the identifying information of five or more people in one transaction, with intent to sell or distribute it, is a Class 5 felony, and of 50 or more people a Class 4 felony. Using another person's identity to avoid arrest is a Class 5 felony if that person is arrested and detained.

18 U.S.C. § 1028

Federal identity fraud, 18 U.S.C. section 1028, carries up to 5 years in prison for using another person's means of identification with intent to commit a federal crime or a state felony. It rises to 15 years if the person obtains $1,000 or more in a year.⁴

The maximum is 20 years if the offense follows a prior conviction under the section or is tied to drug trafficking or a crime of violence. The section also covers making or transferring false identification documents.

18 U.S.C. § 1028A

Aggravated identity theft, 18 U.S.C. section 1028A, applies when a person knowingly uses another person's identification during certain federal felonies, such as mail, wire or bank fraud. It adds a mandatory 2 years in prison on top of the sentence for that felony, and the court cannot place the person on probation for it.¹⁷

The 2 years cannot run at the same time as the sentence for the underlying felony, and a court may not shorten that other sentence to make up for it. The listed felonies include theft of public money, bank embezzlement, offenses in the chapter on fraud and false statements, and mail, bank and wire fraud.

Mail and wire fraud

Mail fraud (18 U.S.C. section 1341) and wire fraud (section 1343) each carry up to 20 years in prison. If the fraud involves a declared disaster or emergency benefit or affects a financial institution, the maximum is 30 years and a fine of up to $1,000,000.^1,18

Mail fraud requires using the mail or a private or commercial interstate carrier to carry out a scheme to defraud. Wire fraud requires sending communications by wire, radio or television across state or national lines to carry out the scheme. Neither section sets a minimum dollar amount.

Under 12 U.S.C. § 1829, a person convicted of a crime involving dishonesty, breach of trust or money laundering may not work at, own or control, or otherwise take part in the affairs of an FDIC-insured bank without the FDIC's prior written consent. The same applies to a person who agreed to a pretrial diversion or similar program for such a charge.^19,20

FDIC rules define a crime of dishonesty as one where a person cheats or defrauds, or wrongfully takes property belonging to another. The FDIC decides from the offense's statutory elements or court rulings on them, so not every conviction for this crime is covered. The rules also leave out a misdemeanor committed more than one year before the person files a consent application, not counting time spent incarcerated. Bank fraud and mail or wire fraud that affects a financial institution are named in the statute.

The bank ban in 12 U.S.C. § 1829 does not apply once 7 years have passed since the offense, or 5 years since release if the person was incarcerated for it. For an offense committed at age 21 or younger, it stops applying once more than 30 months have passed since sentencing.¹⁹

It also does not apply to a conviction covered by an expungement, sealing or dismissal order meant to remove it from the person's record, or to minor offenses the FDIC sets by rule. The time limits do not apply to certain listed federal offenses, including bank embezzlement (18 U.S.C. 656), bank fraud and mail or wire fraud that affects a financial institution. For those, the FDIC may not consent for 10 years after the conviction becomes final, though the sentencing court may grant an exception on the FDIC's motion.