United States v. Christopher Spears ( 2012 )


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  •                             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