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Aggravated Identity Theft — sufficiency of the evidence

By: WISCONSIN LAW JOURNAL STAFF//September 10, 2013//

Aggravated Identity Theft — sufficiency of the evidence

By: WISCONSIN LAW JOURNAL STAFF//September 10, 2013//

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United States Court of Appeals For the Seventh Circuit

Criminal

Aggravated Identity Theft — sufficiency of the evidence

A defendant who created a counterfeit document for another, but used the other person’s real name and birthdate, is not guilty of aggravated identity theft under 18 U.S.C. 1028A.

“Spears insists that he did not ‘transfer’ the means to Payne, because she knew her own name and birthdate. Because 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 identification’ must be that of ‘another person’. From Payne’s perspective, 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 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).”

Vacated and Remanded.

11-1683 U.S. v. Spears

Appeal from the United States District Court for the Northern District of Indiana, Lozano, J., Easterbrook, J.

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