Rehearing Granted on Aggravated ID Theft

CHICAGO (CN) - The 7th Circuit agreed to rehear arguments on whether producing fake gun permits which display the buyer's real identifying information constitutes "aggravated identity theft" under federal law.

Christopher Spears was caught producing fake Indiana driver's licenses and gun permits in 2010, after one of his customers was denied a handgun by a sporting goods store clerk, who sent a copy of the faked permit to the Bureau of Alcohol, Tobacco, Firearms, and Explosives.

Spears was charged with multiple federal crimes, including aggravated identity theft, producing false identification documents, and unlawfully possessing five or more false identification documents.

A jury convicted Spears of all counts. He was sentenced to 4½ years in prison.

Spears appealed, claiming he had not committed aggravated identity theft because the identifying information on the fake gun permits was that of his customers.

A three-judge panel of the 7th Circuit affirmed the aggravated identity theft conviction in September 2012.

"Although this may not seem like an identity theft, colloquially understood, Spears's conduct falls within the literal terms of the statute," Judge Diane Sykes wrote for the panel.

"The text of §1028A(a)(1) captures more than misappropriation of another person's identifying information; a person commits aggravated identity theft when he 'knowingly transfers, ... without lawful authority, a means of identification of another person' during or in relation to a predicate felony. Spears did exactly that when he knowingly and without lawful authority sold his customer a fraudulent handgun permit containing her own identifying information and she used it to try to buy a firearm."

The panel also affirmed Spears' conviction for producing a false identification document, but vacated his false document possession conviction because most of the documents introduced as evidence were so clearly incomplete or unprofessional that they did not appear to be issued by the state.

Judges Richard Cudahy and Michael Kanne were also members of the September panel.

But last week the 7th Circuit vacated its ruling, inviting the parties to address the question: "Does the crime of aggravated identity theft as defined in 18 U.S.C. § 1028A(a)(1) require a theft or other misappropriation of another person's identifying information when the prosecution relies only on the 'knowing transfer' part of the statute?"

The 7th Circuit requested that the new appellate briefs discuss the meaning of the phrases "without lawful authority" and "means of identification of another person." The order also contemplates the impact of the U.S. Supreme Court's 2009 decision in Flores-Figueroa v. United States, which vacated the aggravated identity theft conviction of a man who used counterfeit documents with his name but other people's identification numbers. In that opinion, the court required the government to show that a defendant knew that the means of identification at issue belonged to another person.

Oral arguments before the full 7th Circuit have not yet been scheduled.

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