In the
United States Court of Appeals
For the Seventh Circuit
No. 11-1683
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
C HRISTOPHER L. S PEARS,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Indiana, Hammond Division.
No. 2:10cr55-001—Rudy Lozano, Judge.
A RGUED O CTOBER 20, 2011—D ECIDED S EPTEMBER 26, 2012
Before C UDAHY, K ANNE, and S YKES, Circuit Judges.
S YKES, Circuit Judge. A federal jury convicted Christopher
Spears of various crimes stemming from his cottage
industry of making and selling various counterfeit docu-
ments, including fake Indiana driver’s licenses and hand-
gun permits. He challenges three of his five convictions.
First, he argues that the evidence was insufficient to
convict him of aggravated identity theft in violation of
18 U.S.C. § 1028A(a)(1) because he did not “transfer[] . . .
2 No. 11-1683
a means of identification of another person,” but merely
transferred identifying information to its rightful owner,
albeit in the form of a fraudulent handgun permit. He
also claims the evidence was insufficient on the charges
of producing a false identification document, see id.
§ 1028(a)(1), and unlawfully possessing five or more false
identification documents, see id. § 1028(a)(3). As to these
counts, he argues that the documents found in his pos-
session are so obviously fake that they do not meet
the statutory definition of “false identification docu-
ment,” id. § 1028(d)(4), and that his conduct did not
affect interstate commerce, see id. § 1028(c)(3)(A).
We affirm the conviction for aggravated identity theft.
Spears sold his customer a fraudulent handgun permit
bearing her own identifying information, which she
then used in an attempt to buy a firearm, violating 18
U.S.C. § 922(a)(6), a qualifying predicate felony for ag-
gravated identity theft. Although this may not seem like
an identity theft, colloquially understood, Spears’s con-
duct falls within the literal terms of the statute. The text
of § 1028A(a)(1) captures more than misappropriation of
another person’s identifying information; a person com-
mits aggravated identity theft when he “knowingly
transfers, . . . without lawful authority, a means of identifi-
cation of another person” during or in relation to a predi-
cate felony. Id. § 1028A(a)(1). 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.
No. 11-1683 3
We also affirm Spears’s conviction for producing a
false identification document. As relevant here, a “false
identification document” is a document “commonly
accepted for the purposes of identification” that “appears
to be,” but was not, issued by a state. Id. § 1028(d)(4).
The fake driver’s license underlying this count is suffi-
ciently realistic that a reasonable jury could conclude
that it appears to be issued by the State of Indiana. A
reasonable jury could also conclude that Spears’s produc-
tion of the fraudulent driver’s license affected inter-
state commerce.
But the evidence is insufficient to sustain Spears’s
conviction for unlawful possession of five or more false
identification documents. The government introduced
six possibilities, all of which either depict or resemble
Indiana driver’s licenses. Two of these documents, how-
ever, are simply photocopies of apparently fake driver’s
licenses; they do not appear to be issued by the State
of Indiana, nor are they documents commonly accepted
for identification purposes. Three others are so clearly
incomplete or obviously unprofessional that they do
not appear to be issued by the State. Accordingly,
we reverse Spears’s conviction on the § 1028(a)(3) count.
I. Background
For several years Christopher Spears operated an
illicit small business producing counterfeit docu-
ments—driver’s licenses, handgun-carry permits, high-
school diploma equivalency certificates, and so on—for
4 No. 11-1683
customers in and around Lake County, Indiana, just across
the Illinois border from Chicago. Tirsah Payne was one
of his customers. In the summer of 2009, she purchased a
fraudulent Indiana handgun-carry permit from Spears.
Payne was on pretrial release for a cocaine-possession
charge and could not lawfully possess a gun. A man she
knew only as “Tony” introduced her to Spears, and
she gave him her identifying information so he could
make the fake permit. After initially haggling over the
price, they eventually settled on $100. Payne made the
payment and within a few hours had her carry permit
in hand. Spears gave “Tony” a freshly minted
fraudulent handgun permit bearing Payne’s name and
birth date, and “Tony” delivered the permit to Payne.
Two months later, in September 2009, Payne used the
fake permit to try to buy a handgun at a sporting-
goods store. The sales clerk was suspicious and refused
the sale. Before turning Payne away, however, he made a
photocopy of Payne’s fraudulent carry permit and sent
the copy to the Bureau of Alcohol, Tobacco, Firearms,
and Explosives (“ATF”).
ATF agents and local police soon uncovered Spears’s
false-document cottage industry and got a warrant for
his arrest and to search his home. When the arrest
warrant was executed, Spears was found in possession
of a zippered binder containing five documents that
either depicted or resembled Indiana driver’s licenses.
Two of these documents (admitted at trial as Govern-
ment Exhibits 8 and 12) were color photocopies on 8.5-by-
11-inch paper of what look like Indiana driver’s li-
No. 11-1683 5
censes. The other three documents (Government Exhibits 9
through 11) were laminated cards approximating the size
and bearing the markings and information typically seen
on an Indiana driver’s license. During the subsequent
search of Spears’s home, officers located a makeshift
basement office with a desk, computer, printer, some
check paper, and a briefcase sitting next to the desk. The
briefcase contained another laminated document resem-
bling an Indiana driver’s license (Government Exhibit 7).
Forensic examination of the computer revealed templates
for making fraudulent Indiana handgun-carry permits.
Based on this evidence, Spears was indicted for com-
mitting five federal crimes. Only Counts 2, 3, and 4 are at
issue on this appeal.1 Count 2 charged aggravated
identity theft in violation of § 1028A(a)(1) stemming
from Spears’s sale of the fake handgun permit to Payne.2
1
Count 1 charged Spears with aiding and abetting an attempt
to acquire a firearm by fraud in violation of 18 U.S.C. §§ 2 and
922(a)(6) arising from Payne’s attempt to purchase a firearm
using the fake handgun permit. Count 5 charged Spears with
possessing an implement designed to make a forged security in
violation of 18 U.S.C. § 513(b). He does not challenge his
convictions on these counts. In a separate case, Spears was
charged with stealing governmental funds in violation of 18
U.S.C. § 641. See United States v. Spears, No. 2:10cr161-002
(N.D. Ind.). Spears pleaded guilty to that charge, and the
district court sentenced him to a prison term of 10 months
to be served concurrently with the sentence in this case.
2
Section 1028A(a)(1) applies only to conduct “during and in
relation to any felony violation enumerated in subsection (c).”
(continued...)
6 No. 11-1683
Count 3 charged Spears with producing false identifica-
tion documents in violation of § 1028(a)(1), and Count 4
charged him with unlawfully possessing five or more
false identification documents in violation of § 1028(a)(3).
The case was tried to a jury. At the close of the govern-
ment’s case in chief, Spears moved for a judgment of
acquittal on all counts. Regarding Count 2, he argued
that he could not be found guilty of aggravated identity
theft because he did not “transfer[] . . . a means of iden-
tification of another person” within the meaning of
§ 1028A(a)(1). He claimed that selling Payne a fake hand-
gun permit containing her own identifying information
did not qualify. Regarding Counts 3 and 4, he argued
that the six documents depicting or resembling Indiana
driver’s licenses were so incomplete or unprofessional
that they did not appear to be issued by state authorities
as required under the definition of “false identifica-
tion document.” 18 U.S.C. § 1028(d)(4). He also argued
that the government failed to prove that his conduct
affected interstate commerce. See id. § 1028(c)(3)(A). The
district court took the motion under advisement.
Spears renewed the motion at the close of the evidence,
and at this point the judge denied it.
The jury convicted Spears on all counts. The judge
imposed a sentence of 34 months—10 months each on
2
(...continued)
Here, the related felony was the § 922(a)(6) offense charged
in Count 1 of the indictment. Spears does not argue that his
conduct was not “during and in relation to” the § 922(a)(6)
offense.
No. 11-1683 7
Counts 1, 3, 4, and 5, to be served concurrently, and a
mandatory consecutive term of 24 months on Count 2,
as required by the aggravated identity-theft statute. See
id. § 1028A(a)(1), (b)(2). Spears appealed.
II. Discussion
Spears challenges three of his convictions: Count 2, for
aggravated identity theft in violation of § 1028A(a)(1);
Count 3, for producing false identification documents
in violation of § 1028(a)(1); and Count 4, for unlawfully
possessing five or more false identification documents
in violation of § 1028(a)(3). He argues that the district
court should have granted his motion for judgment of
acquittal. Our review is de novo, but Spears’s burden
is heavy; we view the evidence and draw all reasonable
inferences in the light most favorable to the verdict,
and will affirm as long as a rational jury could have
found beyond a reasonable doubt that he committed
the crimes. United States v. Vallar, 635 F.3d 271, 286 (7th
Cir. 2011).
A. Aggravated Identity Theft, § 1028A(a)(1)
The basic facts on the charge of aggravated identity
theft were largely undisputed at trial. Spears was
engaged in the business of producing and selling fraudu-
lent documents. Payne, who could not lawfully possess
a firearm, bought a fake Indiana handgun permit from
him. She gave him her identifying information—her
name and date of birth—and paid him $100 to make the
8 No. 11-1683
permit. Using Payne’s identifying information, Spears
created a counterfeit handgun permit, gave it to “Tony” to
deliver to Payne, and “Tony” made the delivery. Payne
later used the fake permit to try to purchase a firearm,
a violation of 18 U.S.C. § 922(a)(6), which makes it a
felony to make a false statement in connection with
the acquisition of a firearm.
Aggravated identity theft is committed by one
who “during and in relation to any felony violation
enumerated in subsection (c), knowingly transfers, possesses,
or uses, without lawful authority, a means of identification
of another person.” 18 U.S.C. § 1028A(a)(1) (emphasis
added). A violation of the statute mandates a two-year
prison term consecutive to the term imposed for the
predicate felony. See id. § 1028A(a)(1), (b)(2). Spears was
charged in Count 1 of the indictment with aiding
and abetting a violation of § 922(a)(6) based on
Payne’s use of the fraudulent handgun permit to
attempt to purchase a firearm. That is a predicate
felony for purposes of aggravated identity theft, see id.
§ 1028A(c)(3), and Spears does not challenge his convic-
tion on this count.
Count 2 charged Spears with the “transfer” variation
of aggravated identity theft. The indictment alleged that
he unlawfully transferred Payne’s identifying informa-
tion in violation of § 1028A(a)(1), not that he unlawfully
possessed or used it. He argues that the government failed
to prove that he transferred a “means of identifica-
tion of another person” because the term “transfer” as
used in § 1028A(a)(1) does not include giving someone
No. 11-1683 9
a fraudulent document containing her own identifying
information. On this interpretation of the statute, an
unlawful “transfer” does not occur unless the defendant
conveys another person’s identifying information to
someone other than the owner of that information—that
is, to a third party.
This argument makes sense as an intuitive matter. After
all, the crime is titled “[a]ggravated identity theft,” which
suggests that the offense is committed only when,
in connection with one of the enumerated predicate
felonies, a person unlawfully takes and transfers some-
one’s identifying information to someone else—in other
words, misappropriates a person’s identifying informa-
tion and transfers it to another person. On a conven-
tional understanding of identity theft, the illicit trans-
action at issue here—selling Payne a fraudulent hand-
gun permit containing her own identifying informa-
tion—doesn’t qualify as a “theft” of her identifying in-
formation.
But the enacted title of a statute “cannot substitute
for the operative text.” Fla. Dep’t of Revenue v. Piccadilly
Cafeterias, Inc., 554 U.S. 33, 47 (2008). The title is part of the
statute and may function as a “’tool[] available for the
resolution of a doubt about [its] meaning.’” Id. (quoting
Porter v. Nussle, 534 U.S. 516, 528 (2002)); see also Flores-
Figueroa v. United States, 556 U.S. 646, 655 (2009) (extrapo-
lating from the title of the “aggravated identity theft”
statute). But here, Spears’s conduct falls within the
plain language of § 1028A(a)(1).
10 No. 11-1683
The meaning of a statute is determined “’by reference
to the [statutory] 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)). Where the relevant
terms are not specifically defined, statutory language is
given its ordinary meaning. United States v. LaFaive,
618 F.3d 613, 616 (7th Cir. 2010). The language of
§ 1028A(a)(1) is broad and general; nothing in the text
limits the scope of the crime to misappropriating
another person’s identifying information and trans-
ferring it to someone else.
The term “transfer” is not defined in the statute. The
verb “transfer” ordinarily means to hand over, give, or
convey something from one person to another. See
B LACK’S L AW D ICTIONARY 1636 (9th ed. 2009) (defining
the verb “transfer” as: “1. To convey or remove from one
place or one person to another; to pass or hand over
from one to another, esp. to change over the possession
or control of. 2. To sell or give.”). As the statute is gram-
matically structured, the object of the verb “transfer” is “a
means of identification of another person.” A “means
of identification” is defined broadly to include “any
name or number that may be used, alone or in conjunc-
tion with any other information, to identify a specific
individual.” 18 U.S.C. § 1028(d)(7); see also id. § 1028(d)
(definitions in § 1028(d) also apply to § 1028A). Thus, a
person commits the “transfer” variation of aggravated
identity theft if he unlawfully transfers—i.e., gives, con-
No. 11-1683 11
veys, or hands over—another person’s identifying infor-
mation. Neither misappropriation (i.e., theft) nor a third-
party recipient are required.
And here, Spears’s conduct entailed an unlawful
transfer of another person’s means of identification.
Payne’s identifying information—her name and date of
birth—appeared on the face of the fake handgun permit.
That information qualifies as a means of identification.
Spears had no lawful authority to make and distribute
Indiana handgun permits. He gave Payne’s fake permit
to “Tony,” who in turn gave it to Payne. That amounts
to a transfer within the meaning of the statute. Even
without “Tony” as the intermediary, Spears “trans-
fer[red], . . . without lawful authority, a means of identifi-
cation of another,” and therefore violated § 1028A(a)(1).
Spears emphasizes that the statute defines “means
of identification” as personal identifying information—not
a physical object like a driver’s license, a handgun
permit, or a Social Security card. Based on this distinction,
he argues that although he gave Payne a physical
object containing personal identifying information (the
fraudulent handgun permit), he did not transfer the
information contained on the permit because it already
belonged to her.
This interpretation cannot be squared with the broad
language of the statute, which, as we have noted, is not
limited to third-party transfers. As the statute is written,
the “transfer” language covers more than the unlawful
transfer of identifying information to a person not its
owner. The crime of aggravated identity theft is com-
12 No. 11-1683
mitted when a person “transfers, . . . without lawful
authority,” the personal identifying information “of
another”; that is, when a person unlawfully transfers
personal identifying information that is not his own.
We do not doubt that § 1028A is primarily aimed at
punishing the misappropriation of personal identifying
information—the act of stealing another person’s identify-
ing information and transferring, possessing, or
using it in connection with the commission of one of the
enumerated predicate felonies. See Flores-Figueroa, 556
U.S. at 655-57 (describing “classic” identity theft under
§ 1028A); United States v. Ozuna-Cabrera, 663 F.3d 496,
500 (1st Cir. 2011) (“Without question, Congress
harbored concerns over criminals who actually steal other
people’s identities.”). But the statutory language casts a
much wider net. Indeed, in addressing the meaning of
the statutory phrase “without lawful authority,” other
circuits have held that § 1028A(a)(1) is not limited to
theft of personal identifying information. See Ozuna-Cabrera,
663 F.3d at 500 (“There is nothing to suggest . . . that
Congress intended to so narrowly restrict the statute’s
reach to identity crimes involving . . . traditional notions
of theft.”); United States v. Rentana, 641 F.3d 272, 274-75
(8th Cir. 2011); United States v. Mobley, 618 F.3d 539,
547-48 (6th Cir. 2010); United States v. Abdelshafi, 592 F.3d
602, 609 (4th Cir. 2010); United States v. Hurtado, 508
F.3d 603, 607-08 (11th Cir. 2007) (per curiam), abrogated in
part on other grounds by Flores-Figueroa, 556 U.S. 646.
Although Spears does not focus on the “without lawful
authority” language of the statute, we find this line of
No. 11-1683 13
cases instructive. Our sister circuits are unanimous that
§ 1028A covers more than identity theft, conventionally
understood. This unanimity, though on a different
element of the crime, confirms our conclusion here.
We conclude that the evidence is sufficient to sustain
Spears’s conviction for aggravated identity theft under
§ 1028A(a)(1). He sold Payne a fraudulent handgun
permit containing her identifying information, and
she later used that permit to try to purchase a handgun
in violation of § 922(a)(6). In doing so he “transfer[red], . . .
without lawful authority, a means of identification
of another person” in connection with a predicate felony.
18 U.S.C. § 1028A(a)(1).
B. Production and Possession of False Identification
Documents, § 1028(a)(1) & (a)(3)
Spears also challenges his conviction on Count 3 for
producing a false identification document in violation of
§ 1028(a)(1) and Count 4 for possessing five or more
false identification documents in violation of § 1028(a)(3).
In particular, he argues that the documents the gov-
ernment offered in evidence are not “false identifica-
tion documents” under the statutory definition be-
cause they do not appear to be government-issued. 18
U.S.C. § 1028(d)(4). He also argues that even if the docu-
ments he produced and possessed qualify as false iden-
tification documents, the government failed to prove
that his conduct affected interstate commerce as
required under § 1028(c)(3)(A).
The possession offense, Count 4, carries a quantity
threshold, so we’ll address that conviction first. Section
14 No. 11-1683
1028(a)(3) makes it a crime to “knowingly possess[] with
intent to use unlawfully or transfer unlawfully five or
more . . . false identification documents.” As relevant
here, a “false identification document” is defined as “a
document of a type intended or commonly accepted for
the purposes of identification of individuals” that “is
not issued by or under the authority of a governmental
entity” but “appears to be issued by or under the
authority of . . . a State.” Id. Spears argues that the docu-
ments found in his possession are so incomplete or unpro-
fessional that they do not meet this definition.
By its express terms, the definition of “false identifica-
tion document” requires that the document in question
must appear to be state-issued and be of a type com-
monly accepted for identification. The Fourth Circuit
has distilled this definition as follows: A “false identifica-
tion document” within the meaning of § 1028(d)(4) is
“an identification document that, although not issued by
or under the authority of the [government], nonetheless
appear[s] to a reasonable person of ordinary intelligence
to be issued by or under the authority of the [govern-
ment].” United States v. Jaensch, 665 F.3d 83, 91 (4th Cir.
2011). The document need not be an exact replica of a
government-issued identity card, see id. at 94-95; United
States v. Fuller, 531 F.3d 1020, 1025-26 (9th Cir. 2008), but
it must at least appear to be government-issued and of
a type commonly accepted for identification. Only one
of the government’s exhibits meets this standard.
The government introduced six documents at
trial—Exhibits 7 through 12—either depicting or resem-
No. 11-1683 15
bling Indiana driver’s licenses. Five of these were in
Spears’s possession when he was arrested, and the sixth
was recovered in the search of his home. Exhibits 8 and 12
are color photocopies on 8.5-by-11-inch paper of what
appear to be Indiana driver’s licenses. These two
exhibits are not false identification documents under the
statutory definition. No reasonable person would say
that a photocopy of a driver’s license “appears to be”
issued by or under the authority of a State, and photo-
copies of driver’s licenses are not commonly accepted
for identification.
Eliminating these two exhibits from the total is
enough to invalidate Spears’s § 1028(a)(3) conviction,
but several of the government’s other exhibits are also
insufficient. Exhibits 7, 9, and 11 resemble driver’s
licenses in that they are cut out to the proper size and
laminated, but their production value is what one
might expect if an elementary-school student created
an identification card as a toy. They have the thickness
of laminated pieces of paper, not state-issued driver’s
licenses, and their picture quality is laughably bad.
No reasonable person making even a cursory examina-
tion of these “driver’s licenses” would think they are state-
issued.
The government offers a couple of arguments to avoid
this conclusion, but neither is persuasive. Citing United
States v. Castellanos, 165 F.3d 1129, 1132 (7th Cir. 1999),
the government argues that documents do not need to
be complete in order to qualify as “false identification
documents.” But Castellanos involved a wholly different
16 No. 11-1683
statutory term: “identification document,” which is
defined in § 1028(d)(3).3 The relevant statutory term in
this case is “false identification document,” which
is defined in § 1028(d)(4). The definition of “false identifi-
cation document” in § 1028(d)(4) includes the require-
ment that the document must “appear[] to be issued
by or under the authority of” a state; the definition of
“identification document” in § 1028(d)(3) does not.
The government also argues that even if Exhibits 8
and 12 (the color photocopies) are not themselves false
identification documents, a rational jury could infer
that Spears possessed the false driver’s licenses depicted
in the photographs at some previous time. Even granting
the inference, this argument fails. First, Exhibits 7, 9, and 11
are also defective for the reasons we have noted;
Exhibits 8 and 12 alone are not enough to sustain Spears’s
conviction for possessing five or more false identification
documents. Second, where a statute imposes a quantity
threshold for a possession offense, the government
must prove that the defendant possessed the minimum
quantity at a particular time. See United States v. Russell,
908 F.2d 405, 407 (8th Cir. 1990) (“[S]eparate and
distinct instances of possession cannot be combined
in order to meet the minimum numerical threshold” in
3
At the time, the definition of “identification document” was
found in 18 U.S.C. § 1028(d)(1). See United States v. Castellanos,
165 F.3d 1129, 1131 (7th Cir. 1999).
No. 11-1683 17
18 U.S.C. § 1029(a)(3).).4 Thus, even accepting the govern-
ment’s argument that Spears’s possession of the two
photocopies supports a reasonable inference that he
possessed the items depicted in the photocopies at some
previous time, Exhibits 8 and 12 cannot be counted toward
the statutory minimum of five. Accordingly, Spears was
entitled to a judgment of acquittal on the § 1028(a)(3)
charge.
We reach a different conclusion, however, on Count 3,
the conviction for unlawfully producing a false identifica-
tion document in violation of § 1028(a)(1). That subsec-
tion of the statute makes it a crime to “knowingly and
without lawful authority produce[] . . . a false identifica-
tion document.” Unlike the possession offense in
§ 1028(a)(3), the production offense in § 1028(a)(1) does
not have a quantity threshold. Spears again argues that
none of the government’s exhibits appears to be state-
issued. See 18 U.S.C. § 1028(d)(4).
We have explained why five of the six documents
the government introduced at trial do not meet the defini-
tion of “false identification document.” The one re-
maining document, Exhibit 10, makes the grade. Unlike
the other exhibits, Exhibit 10 bears the size, thickness,
and overall appearance of a normal driver’s license. The
4
Of course, Congress may specify that quantities may be
aggregated over time. See, e.g., 18 U.S.C. § 1029(a)(2) (proscribing
certain types of fraudulent activities that generate “anything
of value aggregating $1,000 or more during [any one-year]
period”).
18 No. 11-1683
edges of the laminate appear to be splitting, but this
is explainable as wear and tear; a rational jury could
conclude that Exhibit 10 is passable as a state-issued
driver’s license.
Spears points out that the signature appearing above
the photo on Exhibit 10 does not match the name
printed on the card. To a careful observer, this dis-
crepancy would cast serious doubt on the document’s
authenticity. The relevant standard, however, is not
that of a careful observer, searching for mistakes.
With the exception of airport screeners, those who check
identification documents often do so quickly and often
without scrutinizing the details. As other circuits have
held, a false identification document may contain
mistakes and yet still appear to be government-issued. See
Jaensch, 665 F.3d at 94-95; Fuller, 531 F.3d at 1025-26.
A rational jury could conclude that Exhibit 10 appears to
be a state-issued driver’s license, notwithstanding
the discrepancy between the signature and the printed
name.
Finally, we reject Spears’s argument that the govern-
ment failed to prove that his conduct affected inter-
state commerce on this count. To convict a defendant
under § 1028(a), the government must prove that his
conduct satisfies one of the conditions in § 1028(c). The
relevant condition here is that Spears’s “production,
transfer, possession, or use prohibited by this section is
in or affects interstate or foreign commerce.” 18 U.S.C.
§ 1028(c)(3)(A) (emphasis added). The government
does not argue that Spears’s conduct was “in” inter-
No. 11-1683 19
state commerce. Instead, it asserts that Spears’s conduct
“affected” interstate commerce.5
As we have recently explained in another context, “[t]he
interstate nexus requirement is a factual predicate, not
a mens rea element of the crime that would require
proof of defendant’s knowledge of facts supporting
the nexus.” United States v. Sarraj, 665 F.3d 916, 921 (7th
Cir. 2012). The purpose of the interstate-commerce re-
quirement is to ensure the constitutionality of certain
federal crimes that might otherwise exceed Congress’s
enumerated powers under Article I. See id. The Supreme
Court has repeatedly stated that the phrase “affecting
commerce” is a term of art “indicat[ing] Congress’[s]
intent to regulate to the outer limits of its authority
under the Commerce Clause.” Circuit City Stores, Inc. v.
Adams, 532 U.S. 105, 115 (2001).
Thus, we have held that the government “need only
demonstrate a de minimis effect on commerce” or “’a
realistic probability of an effect . . . on interstate com-
merce.’” United States v. Mitov, 460 F.3d 901, 908 (7th Cir.
2006) (quoting United States v. Peterson, 236 F.3d 848,
5
These sorts of interstate-commerce nexus requirements are
“often described loosely as the ‘jurisdictional’ element” of a
federal offense, but they typically do not affect the court’s
subject-matter jurisdiction and therefore are “better under-
stood as simply one element of the crime.” United States v.
Sarraj, 665 F.3d 916, 921 n.2 (7th Cir. 2012).
20 No. 11-1683
852 (7th Cir. 2001)).6 A defendant cannot benefit from
being caught before his criminal acts had a chance to
affect interstate commerce; “[t]he defendant need have
had only the intent to accomplish acts, which, if
successful, would have affected interstate . . . commerce.”
United States v. Klopf, 423 F.3d 1228, 1239 (11th Cir. 2005).
Accordingly, the question here is whether, viewing
the evidence in the light most favorable to the verdict,
a rational jury could have concluded beyond a rea-
sonable doubt that Spears’s production of a fake
driver’s license had a realistic probability of affecting
interstate commerce.
The government’s evidence on this issue was limited
to the testimony of a state police officer who told the
jurors what they certainly already knew: that a driver’s
license authorizes the holder to drive on interstate high-
ways; that all 50 states recognize a driver’s license as
a valid form of identification; and that as a state police
officer, he had encountered many drivers from other
states using the interstate highway system in Indiana.
In evaluating this testimony, the jurors were “free to use
their common sense and apply common knowledge,
observation, and experience gained in the ordinary
6
We have held that the familiar test whether the regulated
activity “substantially affects” interstate commerce, see United
States v. Lopez, 514 U.S. 549, 559 (1995), applies only to legisla-
tion; it does not require the government to prove a “substantial
effect” on interstate commerce in each criminal case, see
United States v. Humphreys, 468 F.3d 1051, 1054-55 (7th Cir.
2006) (citing cases).
No. 11-1683 21
affairs of life when giving effect to the inferences that
may reasonably be drawn from the evidence.” United
States v. Flores-Chapa, 48 F.3d 156, 161 (5th Cir. 1995).
We have little difficulty concluding that a rational jury
could have found that Spears’s production of a fake
driver’s license had a realistic probability of affecting
interstate commerce. A fraudulent driver’s license obvi-
ously does not confer legal authority to drive, so its
production—and by implication, its use—surely
influences the safety of people traveling on interstate
highways. A driver’s license is also a form of identifica-
tion for traveling in interstate commerce by air, train, bus,
or boat. The federal government has a clear interest
in maintaining the safety and integrity of these channels
of interstate commerce, and the production and distribu-
tion of a fake driver’s license undermines that interest.
A driver’s license may be used as identification to
purchase regulated goods such as alcohol, tobacco, and
firearms that move in interstate commerce, and in con-
nection with interstate banking, cash-delivery, and credit-
card transactions.
Spears insists that the effect on interstate commerce in
this case is attenuated and speculative, citing United
States v. Groves, 470 F.3d 311 (7th Cir. 2006). Groves in-
volved a conviction for possession of a firearm by a
felon under 18 U.S.C. § 922(g). The firearm in question
was never recovered, so the government could not
prove that it was manufactured outside the state and
therefore had previously traveled in interstate commerce.
Thus, to prove the interstate-commerce element of the
22 No. 11-1683
§ 922(g) offense, the government was forced to rely on
a speculative chain of inferences, which we described
as follows:
[T]he government contends that Groves’ possession of
the firearm led to the violent act of firing the gun
toward a halfway house where convicts and drug
addicts lived. In turn, this violence could displace
workers, encourage people to move from the unsafe
area, and increase the government’s cost of housing
persons who would otherwise be able to live in
Dismas House.
Groves, 470 F.3d at 327. We held that this reasoning was
based on “the same sorts of tenuous connections to com-
merce” that the Supreme Court had expressly rejected
in United States v. Lopez, 514 U.S. 549 (1995). Id. Accord-
ingly, we concluded that the government had not
carried its burden on the interstate-commerce element
of the offense. Id.
When it comes to evaluating the effect on interstate
commerce, however, producing a fraudulent driver’s
license is not analogous to possessing a firearm, the
offense at issue in Groves. As a matter of common knowl-
edge, a fraudulent driver’s license illicitly facilitates a
variety of activities affecting interstate commerce, from
driving on interstate highways to engaging in interstate
commercial transactions that require this form of iden-
tification. The probable effect of Spears’s conduct on
interstate commerce was thus immediate and obvious,
and does not rely on a tenuous chain of inferences as
No. 11-1683 23
in Groves. We are satisfied that a rational jury could
conclude that Spears’s production of a false identifica-
tion document had the required effect on interstate com-
merce.
III. Conclusion
In sum, we conclude that the evidence is sufficient to
sustain Spears’s convictions on Counts 2 and 3 for aggra-
vated identity theft and producing a false identification
document, but insufficient to sustain his conviction on
Count 4 for unlawfully possessing five or more false
identification documents. As required by § 1028A(b)(2),
the mandatory two-year sentence on Count 2 was
imposed consecutively, but the sentences on the other
counts were ordered to run concurrently. Although the
sentence on the conviction we are reversing is concur-
rent to the sentences on the convictions that remain, “we
cannot know whether the judge would have sentenced
[Spears] differently in the absence of the [invalid
§ 1028(a)(3)] conviction.” United States v. Rappe, 614 F.3d
332, 334 (7th Cir. 2010). Spears is therefore “entitled to a
shot at persuading the judge to give him a lighter sentence
in view of the acquittal we are directing.” United States v.
Shah, 559 F.3d 643, 644 (7th Cir. 2009); see also United
States v. Dooley, 578 F.3d 582, 592 (7th Cir. 2009).
Accordingly, we A FFIRM Spears’s convictions for aggra-
vated identity theft in violation of § 1028A(a)(1) and for
producing a false identification document in violation of
§ 1028(a)(1). We R EVERSE his conviction for unlawfully
24 No. 11-1683
possessing five or more false identification documents
in violation of § 1028(a)(3), V ACATE his sentence, and
R EMAND for resentencing.
9-26-12