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 legitimate permit. Payne used the fake credential—which contained 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’ imprisonment under §1028A, which prescribes a mandatory consecutive 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 judgment, which we now reinstate with respect to the convictions other than the one under §1028A.

Section 1028A(a)(1) provides that anyone who, in connection with a list of other crimes, “knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person shall, in addition to the punishment 

provided for such felony, be sentenced to a term of imprisonment of 2 years.” Section 1028A(c) provides the list of 

predicate offenses; an unauthorized person’s attempt to purchase 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 identification”, 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 stolen 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 ordinary 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. Other physical objects, including firearm-owners’ cards, also 

come within that phrase because they identify their owners.

The Supreme Court’s only encounter with §1028A, FloresFigueroa v. United States, 556 U.S. 646 (2009), treats both personal 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 subject, the Justices’ understanding confirms that the common 

usage of “means of identification” includes physical objects.

And although §1028A does not define “means of identification”, 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 possible 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. 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).

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. Piccadilly 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 defendant” 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 reading “another person” to mean “person other than the defendant” treats §1028A as forbidding document counterfeiting 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 activity in connection with identification documents”, makes it a 

crime to do any of the following under circumstances (specified 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, authentication feature, or a false identification document 

knowing that such document or feature was stolen or produced 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 possessor), authentication features, or false identification documents;

(4) knowingly possesses an identification document (other 

than one issued lawfully for the use of the possessor), authentication feature, or a false identification document, 

with the intent such document or feature be used to defraud the United States;

(5) knowingly produces, transfers, or possesses a document-making implement or authentication feature with the 
6 No. 11-1683

intent such document-making implement or authentication feature will be used in the production of a false identification document or another document-making implement or authentication feature which will be so used;

(6) knowingly possesses an identification document or authentication feature that is or appears to be an identification 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 applicable State or local law; or 

(8) knowingly traffics in false or actual authentication features for use in false identification documents, documentmaking 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 reputation or credit history. Flores-Figueroa observed that the examples in the legislative history of §1028A involve people 

injured when a third party used their names or financial information (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 identitytheft crimes entail a victim whose information has been used 

without consent. The United States Attorney has not explained why his position in this prosecution differs so dramatically from the Solicitor General’s in Flores-Figueroa.
8 No. 11-1683

The most one could say for the United States’ current position 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 forbidden. 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 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.

We have not located any appellate decision discussing 

the meaning of “another person”. Although one court of appeals 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 issue, and the court did not explain why it chose that definition 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 unauthorized 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 reversed, while three remain. The district court’s judgment is 

vacated, and the case is remanded for resentencing on those 

three convictions.