In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 11-‐‑1683
UNITED STATES OF AMERICA,
Plaintiff-‐‑Appellee,
v.
CHRISTOPHER L. SPEARS,
Defendant-‐‑Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Indiana, Hammond Division.
No. 2:10cr55 — Rudy Lozano, Judge.
____________________
ARGUED APRIL 16, 2013 — DECIDED SEPTEMBER 6, 2013
____________________
Before EASTERBROOK, Chief Judge, and CUDAHY, POSNER,
FLAUM, KANNE, ROVNER, WOOD, WILLIAMS, SYKES, TINDER,
and HAMILTON, Circuit Judges.
EASTERBROOK, Chief Judge. 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
2 No. 11-‐‑1683
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 af-‐‑
firmed 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.” Section 1028A(c) provides the list of
predicate offenses; an unauthorized person’s attempt to pur-‐‑
chase a weapon, in violation of 18 U.S.C. §922(a)(6), is on it.
Spears acknowledges that he lacked “lawful authority” to
sell counterfeit permits. But he contends that a permit is not
a “means of identification”; only intangible details such as
names and Social Security numbers are “means of identifica-‐‑
tion”, he maintains. Spears also contends that he did not
“transfer[]” anything “to another person” because Payne
used her own name and birthdate; no information was sto-‐‑
len from, or transferred to, anyone who did not consent. He
believes that the phrase “without lawful authority” helps to
No. 11-‐‑1683 3
show that “transfer” and “another person” refer to a victim
rather than to persons who consent to the transaction.
The panel rejected the first of these arguments, 697 F.3d
at 598, and we agree with its conclusion. Nothing in ordi-‐‑
nary usage or statutory context limits the phrase “means of
identification” to intangible information. People speak of a
passport or driver’s license as a means of identification. Oth-‐‑
er physical objects, including firearm-‐‑owners’ cards, also
come within that phrase because they identify their owners.
The Supreme Court’s only encounter with §1028A, Flores-‐‑
Figueroa v. United States, 556 U.S. 646 (2009), treats both per-‐‑
sonal information and documents containing it as “means of
identification”. See, e.g., 556 U.S. at 653. Although the Court
did not grant certiorari in Flores-‐‑Figueroa to define “means of
identification” and did not produce a holding on that sub-‐‑
ject, the Justices’ understanding confirms that the common
usage of “means of identification” includes physical objects.
And although §1028A does not define “means of identifi-‐‑
cation”, a neighboring statute—18 U.S.C. §1028, dealing with
identity fraud—does. Section 1028(d)(7) provides a list, some
members of which (e.g., “iris image”) are physical objects.
Section 1028A(a)(1) forbids not only transferring but also
possessing a “means of identification”. Although it is possi-‐‑
ble to “possess” information without committing it to paper,
many forms of possession entail embodiment in an object
such as a passport, Social Security card, or alien registration
document. We therefore conclude that the document sold to
Payne was a “means of identification”. Accord, United States
v. Sash, 396 F.3d 515, 524 (2d Cir. 2005) (counterfeit police
badge is a “means of identification” under §1028A).
4 No. 11-‐‑1683
Spears insists that he did not “transfer” the means to
Payne, because she knew her own name and birthdate. Be-‐‑
cause the “means of identification” was the counterfeit card,
however, it was indeed “transfer[red]” from Spears to
Payne. But a transfer is not enough. The “means of identifi-‐‑
cation” must be that of “another person”. From Payne’s per-‐‑
spective, the card she received did not pertain to “another”;
it had her own identifying details. The prosecutor says that
this is irrelevant because, from Spears’s perspective, Payne
was the “another”. On this view, Spears could give Payne a
card bearing Spears’s name but not anyone else’s. If the
prosecutor is right, §1028A acquires a surprising scope. It
would, for example, require a mandatory two-‐‑year consecu-‐‑
tive sentence every time a tax-‐‑return preparer claims an im-‐‑
proper 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).
In trying to understand the meaning of “another person”
we draw on the statute’s caption—“Aggravated identity
theft.” Providing a client with a bogus credential containing
the client’s own information is identity fraud but not identity
theft; no one’s identity has been stolen or misappropriated. A
caption cannot override a statute’s text, but it can be used to
clear up ambiguities. Florida Department of Revenue v. Piccadil-‐‑
ly Cafeterias, Inc., 554 U.S. 33, 47 (2008); Porter v. Nussle, 534
U.S. 516, 528 (2002). Flores-‐‑Figueroa used the caption of
§1028A to help explicate its text. 556 U.S. at 655. The phrase
“another person” is ambiguous: neither text nor context tells
us whether “another” means “person other than the defend-‐‑
ant” or “person who did not consent to the information’s
No. 11-‐‑1683 5
use”. That §1028A deals with identity theft helps resolve the
ambiguity in favor of the latter understanding, while read-‐‑
ing “another person” to mean “person other than the de-‐‑
fendant” treats §1028A as forbidding document counterfeit-‐‑
ing and other forms of fraud, a crime distinct from theft.
To appreciate the difference, one need look no farther
than §1028, the aggravated-‐‑identity-‐‑theft statute’s next-‐‑door
neighbor. Section 1028, captioned “Fraud and related activi-‐‑
ty in connection with identification documents”, makes it a
crime to do any of the following under circumstances (speci-‐‑
fied in §1028(c)) that bring the activity within the scope of
national authority:
(1) knowingly and without lawful authority produces an
identification document, authentication feature, or a false
identification document;
(2) knowingly transfers an identification document, au-‐‑
thentication feature, or a false identification document
knowing that such document or feature was stolen or pro-‐‑
duced without lawful authority;
(3) knowingly possesses with intent to use unlawfully or
transfer unlawfully five or more identification documents
(other than those issued lawfully for the use of the posses-‐‑
sor), authentication features, or false identification docu-‐‑
ments;
(4) knowingly possesses an identification document (other
than one issued lawfully for the use of the possessor), au-‐‑
thentication feature, or a false identification document,
with the intent such document or feature be used to de-‐‑
fraud the United States;
(5) knowingly produces, transfers, or possesses a docu-‐‑
ment-‐‑making implement or authentication feature with the
6 No. 11-‐‑1683
intent such document-‐‑making implement or authentica-‐‑
tion feature will be used in the production of a false identi-‐‑
fication document or another document-‐‑making imple-‐‑
ment or authentication feature which will be so used;
(6) knowingly possesses an identification document or au-‐‑
thentication feature that is or appears to be an identifica-‐‑
tion document or authentication feature of the United
States or a sponsoring entity of an event designated as a
special event of national significance which is stolen or
produced without lawful authority knowing that such
document or feature was stolen or produced without such
authority;
(7) knowingly transfers, possesses, or uses, without lawful
authority, a means of identification of another person with
the intent to commit, or to aid or abet, or in connection
with, any unlawful activity that constitutes a violation of
Federal law, or that constitutes a felony under any appli-‐‑
cable State or local law; or
(8) knowingly traffics in false or actual authentication fea-‐‑
tures for use in false identification documents, document-‐‑
making implements, or means of identification;
18 U.S.C. §1028(a). The transaction between Spears and
Payne fits comfortably within paragraphs (1) and (2). And in
a statute about identity fraud it would make sense to say that
Spears violated paragraph (7) as well, because he made a
document that aided and abetted Payne’s effort to obtain a
gun by fraud. But instead of using §1028, the prosecutor
charged Spears under §1028A—which, if it means what the
prosecutor says, would convert most identity fraud into
identity theft and add a mandatory, consecutive, two-‐‑year
term to every conviction, even though §1028 lacks any
equivalent sentencing provision.
No. 11-‐‑1683 7
Congress borrowed and modified the language of
§1028(a)(7), which stems from 1982, to produce §1028A(a)(1),
which was enacted in 2004. Section 1028(a)(7) deals with
document fraud committed with intent to aid or abet any
federal crime, or any state felony. Section 1028A(a)(1) deals
with identity theft in connection with a short list of serious
crimes. The abbreviation of the list of predicate offenses is
one reason why §1028A carries a harsher sentence; the fact
that identity theft has a victim other than the public at large
is another. The usual victim of identity theft may be out of
pocket (if the thief uses information to buy from merchants)
or may be put to the task of rehabilitating a damaged reputa-‐‑
tion or credit history. Flores-‐‑Figueroa observed that the ex-‐‑
amples in the legislative history of §1028A involve people
injured when a third party used their names or financial in-‐‑
formation (credit card or Social Security numbers) without
their consent. 556 U.S. at 655. And the Court also observed
that “Congress separated the fraud crime from the theft
crime in the statute itself” (ibid.) by giving §1028 and §1028A
different titles and placing the rules in different sections.
The Solicitor General told the Supreme Court that “[t]he
statutory text makes clear that the sine qua non of a Section
1028A(a)(1) offense is the presence of a real victim.” Brief for
the United States in Flores-‐‑Figueroa v. United States, No. 08-‐‑
108, at 20 (Jan. 2009). Pages 19–22 of that brief give several
reasons why the Solicitor General concluded that identity-‐‑
theft crimes entail a victim whose information has been used
without consent. The United States Attorney has not ex-‐‑
plained why his position in this prosecution differs so dra-‐‑
matically from the Solicitor General’s in Flores-‐‑Figueroa.
8 No. 11-‐‑1683
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.
We have not located any appellate decision discussing
the meaning of “another person”. Although one court of ap-‐‑
peals stated that the phrase means “anyone other than the
defendant” (United States v. Zuniga-‐‑Arteaga, 681 F.3d 1220,
1224 (11th Cir. 2012)), the parties had not contested that is-‐‑
sue, and the court did not explain why it chose that defini-‐‑
tion over “anyone other than a person consenting to the use
of the information” or something similar. The sole question
at issue in Zuniga-‐‑Arteaga was whether the “person” had to
be alive; the eleventh circuit held, as we also had done, see
United States v. LaFaive, 618 F.3d 613 (7th Cir. 2010), that un-‐‑
authorized use of a dead person’s identifying information
can violate §1028A. The eleventh circuit’s decision does not
resolve other issues not contested by the parties.
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
No. 11-‐‑1683 9
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.