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

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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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  1. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  2. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  3. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  4. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

  5. Seventh Circuit Court Judge Diane Wood has stated in “The Rule of Law in Times of Stress” (2003), “that neither laws nor the procedures used to create or implement them should be secret; and . . . the laws must not be arbitrary.” According to the American Bar Association, Wood’s quote drives home this point: The rule of law also requires that people can expect predictable results from the legal system; this is what Judge Wood implies when she says that “the laws must not be arbitrary.” Predictable results mean that people who act in the same way can expect the law to treat them in the same way. If similar actions do not produce similar legal outcomes, people cannot use the law to guide their actions, and a “rule of law” does not exist.

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