United States v. Spears

• Decision Date: 14 January 2013
• Docket Number: No. 11–1683.,11–1683.
• Citation: 697 F.3d 592
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Christopher L. SPEARS, Defendant–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

697 F.3d 592

UNITED STATES of America, Plaintiff–Appellee,

v.Christopher L. SPEARS, Defendant–Appellant.

No. 11–1683.

United States Court of Appeals, Seventh Circuit.

Argued Oct. 20, 2011.

Decided Sept. 26, 2012.

Rehearing En Banc Granted, Opinion Vacated Jan. 14, 2013.

Emily Kathleen Cremeans (argued), Attorney, Office of the United States Attorney, Hammond, IN, for Plaintiff–Appellee.

Ashwin Cattamanchi (argued), Assistant Federal Public Defender, Indiana Federal Community Defenders, Inc., Hammond, IN, for Defendant–Appellant.

Before CUDAHY, KANNE, and SYKES, Circuit Judges.

SYKES, Circuit Judge.

A federal jury convicted Christopher Spears of various crimes stemming from his cottage industry of making and selling various counterfeit documents, including fake Indiana driver's licenses and handgun 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[ ] ... 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 possession are so obviously fake that they do not meet the statutory definition of “false identification document,” 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 aggravated identity theft. Although this may not seem like an identity theft, colloquially understood, Spears's conduct 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 commits aggravated identity theft when he “knowingly transfers, ... without lawful authority, a means of identification of another person” during or in relation to a predicate felony. 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.

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 sufficiently 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 production of the fraudulent driver's license affected interstate 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, however, 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 documents—driver's licenses, handgun-carry permits, highschool diploma equivalency certificates, and so on—for 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 Government Exhibits 8 and 12) were color photocopies on 8.5–by–11–inch paper of what look like Indiana driver's licenses. 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 resembling 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 committing 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 Count 3 charged Spears with producing false identification 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 government'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 identification of another person” within the meaning of § 1028A(a)(1). He claimed that selling Payne a fake handgun 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 identification 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 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 fraudulent 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 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...