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Fake ID using own name not aggravated ID theft, 7th Circuit rules

September 9, 2013

An Indiana man who supplied a fake identification that used the recipient’s real name may not be subjected to the federal aggravated identity theft statute, the 7th Circuit Court of Appeals ruled Friday in a unanimous en banc decision.

At issue is whether the definition of “another person” in Section 1028A of the United States Code means anyone other than the defendant. The court warned against applying that standard; the prosecution advocated for a statute that carries an automatic two-year consecutive sentence.

“If the prosecutor is right, §1028A acquires a surprising scope,” Chief Judge Frank Easterbrook wrote for the panel in United States of America v. Christopher Spears, 11-1683.

“It would, for example, require a mandatory two-year consecutive sentence every time a tax-return preparer claims an improper deduction, because the return is transferred to the IRS, concerns a person other than the preparer, includes a means of identifying that person (a Social Security number), and facilitates fraud against the United States (which §1028A(c)(4) lists as a predicate crime),” Easterbook wrote.

Lake County resident Christopher Spears made fake handgun carry permits, driver’s licenses and other forms of ID. He was convicted in the U.S. District Court for the Northern District of Indiana, Hammond Division, of producing false identification, five counts of unlawful possession of false identification documents and aggravated identify theft.

A three-judge panel of the 7th Circuit previously vacated some of those convictions but affirmed the aggravated identity theft and producing false ID convictions. Spears was sentenced to 34 months in prison, plus the two-year mandatory sentence under the ID theft conviction.

The en banc decision affirmed the prior 7th Circuit decision except for the conviction and sentence for ID theft.

“Crimes are supposed to be defined by the legislature, not by clever prosecutors riffing on equivocal language. A reasonable person reading §1028A(a)(1) would not conclude that Congress has definitely used the word “another” to specify every person other than the defendant, as opposed to a person whose information has been misappropriated,” Easterbrook wrote.

“Section 1028A, we hold, uses ‘another person’ to refer to a person who did not consent to the use of the ‘means of identification’. This decision, in conjunction with the panel’s disposition of the convictions under statutes other than §1028A, mean that two of Spears’s convictions have been reversed, while three remain. The district court’s judgment is vacated, and the case is remanded for resentencing on those three convictions.”   
 

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