United States of America v. Anna Lafaive, also known as PHYLLIS CLICK

In the
United States Court of Appeals
For the Seventh Circuit
No. 09-2344
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ANNA LAFAIVE, also known as PHYLLIS CLICK,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Indiana, Fort Wayne Division.
No. 1:07-cr-62—Theresa L. Springmann, Judge.
ARGUED FEBRUARY 18, 2010—DECIDED AUGUST 18, 2010
Before EASTERBROOK, Chief Judge, and KANNE and
ROVNER, Circuit Judges.
KANNE, Circuit Judge. Anna LaFaive assumed the
identity of her deceased sister, opened checking ac-
counts in her name using counterfeited checks, and
withdrew nearly $65,000 before being apprehended. A
jury convicted her of two counts of bank fraud and two
counts of aggravated identity theft. On appeal, LaFaive
challenges her conviction under 18 U.S.C. § 1028A for

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2 No. 09-2344
aggravated identity theft and takes issue with the pro-
cedure used by the district court in calculating her sen-
tence. We affirm both her conviction and sentence.
I. BACKGROUND
Although largely irrelevant to the legal issues LaFaive
raises in this appeal, some background information may
be useful. Phyllis Jean Click, LaFaive’s older sister, was
born in 1946. She died of cancer in 1990 at the age of 45.
LaFaive was born in 1961. In May 2007, LaFaive used a
counterfeit check in the amount of $48,039.16 to open a
new checking account in Click’s name at Star Financial
Bank in Fort Wayne, Indiana. The check was drawn on
an account at JP Morgan Chase Bank. LaFaive presented
the bank with a social security number verification docu-
ment and an Indiana identification card, both identifying
her (LaFaive) as Phyllis J. Click. Using the same docu-
ments, LaFaive opened another checking account in
Click’s name at Fifth Third Bank in Fort Wayne, Indi-
ana, this time with a counterfeit check in the amount of
$68,920.78. The next month, LaFaive made purchases
totaling nearly $5,000 at a GameStop and Best Buy from
these new checking accounts. She also withdrew $60,000
in cash from a Fifth Third Bank in Ohio. Authorities
eventually found LaFaive living in Harper Woods, Michi-
gan, where she was arrested in late June 2007.
LaFaive was indicted on two counts of bank fraud
in violation of 18 U.S.C. § 1344, two counts of aggravated
identity theft in violation of 18 U.S.C. § 1028A, and a

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No. 09-2344 3
forfeiture allegation under 18 U.S.C. § 982. At trial,
LaFaive’s defense was that her sister was still alive, had
deposited the counterfeit checks herself, and framed
LaFaive for the crimes. The jury found this theory unbe-
lievable and convicted her of all four counts and
awarded forfeiture in the amount of $64,863.04. The
district court sentenced LaFaive to an above-guidelines
sentence of 70 months’ imprisonment—46 months on the
bank fraud counts and the mandatory 24 consecutive
months on the aggravated identify theft counts. After
the district court denied LaFaive’s motion for judgment
of acquittal under Federal Rule of Criminal Procedure
29, LaFaive filed this appeal.
II. ANALYSIS
LaFaive argues that she cannot be convicted of aggra-
vated identity theft under § 1028A because that statute
does not criminalize the use of a deceased person’s iden-
tity. She also argues that the district court improperly
considered the factors in 18 U.S.C. § 3553(a) to enhance
her sentence before adding the mandatory 24-month
consecutive sentence under § 1028A(a)(1) to the total
guideline calculation. We consider each argument in turn.
A. Scope of 18 U.S.C. § 1028A
LaFaive argues that § 1028A criminalizes only the use
of a living person’s identity, and therefore her use of her
deceased sister’s identity falls outside the scope of the

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4 No. 09-2344
statute. Because she did not raise this argument before
the district court, we will reverse her conviction only
for plain error, which requires a clear or obvious error
by the district court that affects the defendant’s sub-
stantial rights “and seriously impugn[s] the fairness,
integrity, or public reputation of judicial proceedings.”
United States v. Anderson, 604 F.3d 997, 1002 (7th Cir.
2010). If LaFaive’s interpretation of § 1028A is correct, she
would almost certainly be entitled to the relief she re-
quests. See United States v. Groves, 470 F.3d 311, 327-28
(7th Cir. 2006) (reversing a conviction “[b]ecause al-
lowing a conviction to stand without proof of an essen-
tial element of the crime meets the standard for plain
error . . .”).
1. Plain Text of § 1028A(a)(1)
Although this is a question of first impression for our
court, we are not starting from scratch—every federal
court to consider this issue has concluded that § 1028A
criminalizes the use of both a living or deceased person’s
identification. While we are not bound by these decisions,
we find their reasoning persuasive and reach the same
conclusion for largely similar reasons.
Section 1028A(a) provides:
(1) In general.—Whoever, during and in relation
to any felony violation enumerated in subsection
(c), knowingly transfers, possesses, or uses, with-
out lawful authority, a means of identification
of another person shall, in addition to the punish-

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No. 09-2344 5
ment provided for such felony, be sentenced to
a term of imprisonment of 2 years.
(2) Terrorism offense.—Whoever, during and in
relation to any felony violation enumerated in
section 2332b(g)(5)(B), knowingly transfers, pos-
sesses, or uses, without lawful authority, a means
of identification of another person or a false identi-
fication document shall, in addition to the punish-
ment provided for such felony, be sentenced to
a term of imprisonment of 5 years.
This case revolves around the meaning of the phrase
“another person” in subsection (a)(1). We begin our
interpretation of a statute with the plain language of the
statute. United States v. Ye, 588 F.3d 411, 414-15 (7th Cir.
2009). We may refer to “ ‘the language itself, the specific
context in which that language is used, and the broader
context of the statute as a whole.’ ” Ioffe v. Skokie Motor
Sales, Inc., 414 F.3d 708, 711 (7th Cir. 2005) (quoting
Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997)). We only
consider the legislative history if the statute contains an
ambiguity that the text or structure of the statute cannot
resolve. DirecTV, Inc. v. Barczewski, 604 F.3d 1004, 1008
(7th Cir. 2010). If, after considering all of that, the
statute’s meaning still escapes us, we will apply the rule
of lenity and give the defendant the benefit of our doubt.
See United States v. Resnick, 594 F.3d 562, 570 (7th Cir. 2010).
Section 1028A does not define “person,” so we
will assume Congress intended it to have its ordinary
meaning. See Commodity Trend Serv., Inc. v. Commodity
Futures Trading Comm’n, 233 F.3d 981, 989 (7th Cir. 2000).

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6 No. 09-2344
Although dictionaries can at times be helpful to deter-
mine the ordinary meaning of words, resort to diction-
aries here is inconclusive—some definitions limit a
“person” to a living being, while other definitions are
not so limiting. See United States v. Maciel-Alcala, No. 09-
50038, 2010 WL 2836992, at *3 (9th Cir. July 21, 2010)
(collecting definitions); United States v. Kowal, 527 F.3d
741, 746 (8th Cir. 2008) (same); United States v. Jimenez,
507 F.3d 13, 19 (1st Cir. 2007) (same). As can be expected,
LaFaive prefers the definitions that use the word living,
while the government is a little more candid about the
lack of consensus among dictionary editors. Because
“[t]he word ‘person’ in isolation admits of more than
one meaning,” Jimenez, 507 F.3d at 19, we examine the
word as it is used in context, see Commodity Trend Serv., 233
F.3d at 989 (“ ‘The existence of alternative dictionary
definitions of’ a word, ‘each making some sense under
the statute, itself indicates that the statute is open to
interpretation’ and the word is ambiguous as between
the two meanings.” (quoting Nat’l R.R. Passenger
Corp. v. Boston & Maine Corp., 503 U.S. 407, 418 (1992))).
LaFaive asks us to conclude that because Congress
did not specifically mention deceased persons under the
statute, the phrase “another person” should be limited
to living persons. But also missing from the statute is
specific mention of living persons. The Eighth Circuit
concluded that “common usage” of the word “person”
accounted for the absence of limiting adjectives in the
statute:
[T]he adjectives “living” and “deceased” may both
properly be used to narrow, that is to make more

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No. 09-2344 7
specific, the meaning of the noun “person.” The
word “person” thus encompasses both the living
and the deceased, and each of such persons pos-
sesses an identity which is susceptible to misap-
propriation. It is reasonable to assume that Con-
gress considered it unnecessary to distinguish
between theft of the identity of a deceased person
as opposed to a living person because the word
“person” is broad enough to cover both.
Kowal, 527 F.3d at 746; see also Maciel-Alcala, 2010 WL
2836992, at *6 (“[B]ecause the means of identification of
deceased persons can be stolen and used unlawfully, had
Congress used the phrase ‘living or deceased’ in
§ 1028A(a)(1), it would have been surplusage.”).
We agree that the common usage of the word “person”
includes both living and deceased individuals. Because
there is nothing in § 1028A(a)(1) that would naturally
limit the definition of “person” to just the living, cf.
Maciel-Alcala, 2010 WL 2836992, at *6 (noting that the use
of “person” in § 1028A(b) is limited to living persons,
not because of the definition of the word “person,” but
because the rest of the language of that provision
logically limits its application to living persons), we
conclude that the provision’s prohibition on using the
identification of “another person” includes the identi-
fication of both living and deceased persons.
2. Structure of § 1028A
Moreover, we find that the structure of the statute as
a whole supports our conclusion. Absent evidence of

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8 No. 09-2344
Congress’s intent to the contrary, we assume that
Congress intended the same words used close together
in a statute to have the same meaning. Arnett v. C.I.R., 473
F.3d 790, 798 (7th Cir. 2007). Both subsections (a)(1) and (2)
prohibit the use “without lawful authority [of] a means
of identification of another person . . . .” Subsection (a)(2),
which applies to aggravated identity theft related to
terrorism, also prohibits the use of a false identification
document and carries a substantially stiffer penalty for
violators. If “another person” in subsection (a)(2) was
limited to living persons, the statute would prohibit the
use of a deceased person’s social security card but not
the oral use of that same deceased person’s social security
number. Considering the broad coverage that Congress
was trying to achieve in enacting subsection (a)(2)—
as evidenced by the imposition of a stricter penalty
and the addition of the prohibition against the use of
false documents—we agree with the other circuits
that have concluded that limiting “person” in subsec-
tion (a)(2) to a living person works an “illogical,” “absurd,”
and “nonsensical” result. See Maciel-Alcala, 2010 WL
2836992, at *6; Kowal, 527 F.3d at 747; Jimenez, 507 F.3d
at 20. Because the word “person” in subsection (a)(2)
must include living and deceased persons, the word
“person” in subsection (a)(1) must also include living
and deceased persons.
Nothing in the Supreme Court’s decision in Flores-
Figueroa v. United States, 129 S. Ct. 1886 (2009), counsels
toward a different reading of § 1028A. The question
in Flores-Figueroa was whether the word “knowingly”
modified all or just part of the sentence that followed,

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No. 09-2344 9
including the phrase “of another person.” Id. at 1888-89.
The Court held that the government must “show that the
defendant knew that the means of identification
at issue belonged to another person.” Id. at 1894. To
reach that conclusion, the Court rejected the govern-
ment’s argument that applying the knowing require-
ment to “another person” in subsection (a)(2) was unnec-
essary because the defendant would know that he was
either using the means of identification that belonged
to another person or that it was a false document. Id.
at 1892. The Court found that because a defendant could
also orally use “a made-up Social Security number, not
an ‘identification document,’ and the number verbally
transmitted . . . might, or might not, turn out to belong
to another person[, t]he word ‘knowingly’ applied to the
‘other person’ requirement . . . would not be surplus.”
Id. The Court did not address, either explicitly or implic-
itly, the scope of the phrase “another person” in § 1028A.
LaFaive would have us extrapolate from the discus-
sion in Flores-Figueroa that the Supreme Court identified
and found nothing wrong with the gap in coverage in
subsection (a)(2) that we found supports our natural
reading of “person.” But LaFaive is trying to coax too
much out of the Court’s opinion. The Court simply
found that the statute required the government to
show that the defendant knew that she was using
the identification of an actual person, as opposed to a ficti-
tious one. It identified the same gap in coverage that we
have in order to show that the knowledge requirement
should modify the entire provision and not just part.
This falls far short of the Court finding that the statute

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10 No. 09-2344
did not cover the oral use of a social security num-
ber—something the Court did not actually decide (or
even suggest). We also note that we are not the only
court to decide post-Flores-Figueroa that § 1028A covers
the use of the identity of both living and deceased
persons. See Maciel-Alcala, 2010 WL 2836992, at *6;
United States v. Parks, Nos. H-06-226, H-09-1586, 2010
WL 1994186, at *7 n.5 (S.D. Tex. May 17, 2010); United
States v. Davis, No. 8:09-CR-0047, 2009 WL 1476459, at *3
n.5 (N.D.N.Y. May 27, 2009).
LaFaive’s remaining arguments are without merit, in
large part because they ignore two important facts. First,
a deceased person has an identity that is subject to mis-
appropriation, and the use of a deceased person’s
identity makes detection of the theft particularly diffi-
cult. See Maciel-Alcala, 2010 WL 2836992, at *7; Kowal,
527 F.3d at 747; Jimenez, 507 F.3d at 20 n.8. Second, the
statute does not purport to create a cause of action in
the individual whose identity was misused. 18 U.S.C.
§ 1028A(a)(1); see also United States v. Shain, No. CR08-
0112, 2008 WL 2940641, at *3 (W.D. Wash. July 24, 2008).
Therefore, we are not bothered by the fact that the theft
of a deceased person’s identity does not fit neatly
within traditional or modern legal definitions of theft,
which would require a living victim. Nor do we find
dispositive the fact that Congress termed a violation of
§ 1028A an “aggravated theft.” Congress’s purpose in
enacting the statute was not only to prevent harm
to living victims, but also to “protect businesses from
financial loss and the nation from terrorist threats.” Maciel-
Alcala, 2010 WL 2836992, at *7. Moreover, theft of a de-

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No. 09-2344 11
ceased person’s identification is not a “victimless crime.”
Id. at *8. As noted earlier, the plain language of § 1028A
shows that Congress intended the statute to have
broad coverage, and our conclusion that “person”
includes both the living and deceased comports with
that intention.
We are also unpersuaded that because some states have
drafted identity theft statutes that explicitly mention
deceased individuals, we should not read deceased
persons into the definition of “person” in § 1028A. That
Congress could have drafted the statute differently
does not negate the plain meaning of the statute as
enacted. And we note that at least one state has found
that its own statute, which like § 1028A(a)(1) contained
no explicit limitation on the word “person,” applied to
both living and deceased victims of identity theft. See
State v. Hardesty, 213 P.3d 745, 749 (Kan. Ct. App. 2009)
(statute has since been amended).
Because we find that the statute’s meaning is unam-
biguous, we decline to wade into the legislative his-
tory. For the same reason, we find the rule of lenity inap-
plicable to this case. United States v. Rosenbohm, 564 F.3d
820, 826 (7th Cir. 2009) (“The rule [of lenity] applies . . .
only when the statute is, in fact, ambiguous.”).
The district court did not plainly err. Accordingly,
we affirm LaFaive’s conviction.
B. Sentencing Procedure
LaFaive also argues that her sentence should be
vacated because the district court improperly decided to

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12 No. 09-2344
depart upward before adding the mandatory 24-month
consecutive sentence to the total guidelines calculation.
We again will reverse only for plain error.
After reviewing the transcript of the sentencing hearing
below, we conclude that the district court did not
commit any errors that warrant vacating LaFaive’s sen-
tence. After dispensing with various motions by both
parties, the district court properly calculated the ap-
plicable guidelines range. The court calculated the range
on the bank fraud counts as 24 to 30 months, and
noted that there was a mandatory 24-month consecu-
tive sentence for the aggravated identity theft counts.
Although the district court did not say at that point
that the final applicable range was 48 to 54 months,
we do not think the failure to do so constitutes plain
error. And in electing to depart upward from the 24- to
30-month range, the district court made it abundantly
clear that it was doing so based almost entirely on the
fact that LaFaive’s criminal history score underrepre-
sented the seriousness of her criminal background. Such
a departure was appropriate under U.S.S.G. § 4A1.3
prior to adding the mandatory 24-month consecutive
sentence.
Even if the court used the wrong procedure in deciding
to depart from the recommended guidelines range, the
error did not prejudice LaFaive. Her argument that the
district court would not have sentenced her to such a
high sentence had the court followed the proper proce-
dure finds no support in the record. In fact, the record
reveals that the district court clearly understood that

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No. 09-2344 13
it had to add a two-year sentence to the end of whatever
it deemed to be the appropriate sentence on the bank
fraud accounts. Under these circumstances, we think it
would be futile to remand to the district court simply
so that the court could impose the same sentence. Cf.
United States v. Avila, 557 F.3d 809, 819 (7th Cir. 2009)
(declining to remand for resentencing in part because
“[n]othing in the sentencing hearing suggests that had
the judge refused to admit the improper evidence, he
would have imposed a different sentence”).
III. CONCLUSION
18 U.S.C. § 1028A(a)(1) criminalizes the misuse of
another person’s identity, whether that other person is
living or deceased. The district court, therefore, did not
plainly err in entering the jury’s conviction of LaFaive
for violating that statute. The district court also did not
plainly err in calculating or imposing LaFaive’s sen-
tence. Accordingly, we AFFIRM LaFaive’s conviction and
sentence.
8-18-10

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