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Friday, September 06, 2013

Ind. Decisions - 7th Circuit decides one more Indiana case today

In UNITED STATES OF AMERICA v. CHRISTOPHER L. SPEARS (ND Ind., Lozano), a 9-page opinion, Judge Easterbrook writes:

Christopher Spears made a counterfeit handgun permit for Tirsah Payne, who was awaiting trial on a drug charge and could not obtain a legit imate permit. Payne used the fake credential—which con tained her own name and birthdate—when trying to buy a gun. The dealer was not deceived and did not sell Payne the weapon she wanted.

An investigation led to Spears’s arrest and the discovery that he had sold other fake credentials, such as drivers’ licenses. He was convicted of five felonies, including aggravated identity theft, 18 U.S.C. §1028A, and sentenced to 34 months in prison: 10 months on four of the five counts, to run concurrently, plus two years’ imprison ment under §1028A, which prescribes a mandatory consecu tive term of that length.

Spears appealed three of the five convictions. A panel affirmed two while reversing the third. 697 F.3d 592 (7th Cir. 2012). Spears then asked for rehearing en banc. Our order granting that petition vacated the panel’s opinion and judg ment, which we now reinstate with respect to the convic tions other than the one under §1028A.

Section 1028A(a)(1) provides that anyone who, in connec tion with a list of other crimes, “knowingly transfers, pos sesses, or uses, without lawful authority, a means of identifi cation of another person shall, in addition to the punishment provided for such felony, be sentenced to a term of impris onment of 2 years.” * * *

The most one could say for the United States’ current po sition is that “another” in §1028A(a)(1) is ambiguous. If that ambiguity is not resolved by the statutory caption and the contrast between §1028 and §1028A, it must be resolved by the Rule of Lenity, under which conviction is possible only when a law declares in understandable words what is for bidden. See, e.g., Skilling v. United States, 130 S. Ct. 2896, 2932 (2010); Rewis v. United States, 401 U.S. 808, 812 (1971). Crimes are supposed to be defined by the legislature, not by clever prosecutors riffing on equivocal language. A reasonable per son reading §1028A(a)(1) would not conclude that Congress has definitely used the word “another” to specify every per son other than the defendant, as opposed to a person whose information has been misappropriated. * * *

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 re versed, while three remain. The district court’s judgment is vacated, and the case is remanded for resentencing on those three convictions.

Posted by Marcia Oddi on September 6, 2013 06:57 PM
Posted to Ind. (7th Cir.) Decisions