The Seventh Circuit Holds That Really Bad Fake Documents Are Not Fake Documents At All

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Christopher Spears was no stranger to a fake document. Though at some point, it's about standards.

Mr. Spears had a thriving business outside of Chicago, in Lake County Indiana, making all kinds of fake identification documents - he made drivers' licenses, handgun permits, high school diplomas, etc.

He was a bigger diploma mill than Phoenix University.

348059_climbing_permit_required.jpgUnfortunately for Mr. Spears, he sold a fake handgun permit to a woman named Tirsah Payne. Ms. Payne was on pretrial release for a drug charge and wasn't allowed to have a gun (which, presumably, was why she needed Mr. Spears).

Ms. Payne tried to buy a gun at a sporting goods store. The clerk was not satisfied with her permit and turned her away.

He photocopied the fake permit first, and sent the photocopy to the ATF.

As you can imagine, one thing led to another, and Mr. Spears came to the attention of the ATF.

The ATF obtained an arrest warrant and a search warrant. Here's what they found on his person when they arrested him:

a zippered binder containing five documents that either depicted or resembled Indiana driver's licenses. Two of these documents . . . were color photocopies on 8.5-by- 11-inch paper of what look like Indiana driver's licenses. The other three documents . . . were laminated cards approximating the size and bearing the markings and information typically seen on an Indiana driver's license.

And here's what they found in his house:

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 . . . . Forensic examination of the computer revealed templates for making fraudulent Indiana handgun-carry permits.

Mr. Spears was then charged with five federal crimes: (1) 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; (2) aggravated identity theft in violation of § 1028A(a)(1) stemming from Spears's sale of the fake handgun permit to Payne ; (3) producing false identification documents in violation of § 1028(a)(1); (4) unlawfully possessing five or more false identification documents in violation of § 1028(a)(3); and (5) possessing an implement designed to make a forged security in violation of 18 U.S.C. § 513(b).

Though things broke bad for Mr. Spears for most of these charges - he was convicted by a jury for all the charges and sentenced to 34 months (10 months on everything but the aggravated identity theft, and 24 months for that) - in United States v. Spears, the Seventh Circuit reversed on the charge for having five or more false identification documents!

For the government to win on a violation for having five or more false identification documents, they have to show that he had five or more documents that meet this definition:

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."

So, basically, the document has to look like it's within the ballpark of being a legitimate fake ID.

The Seventh Circuit quoted the Fourth Circuit on how to think of this:

A "false identification 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 [government]." 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.

So, if the ID is too far from a real ID, it can't be a fake identification document.

Or, said another way, if you're really bad at making fake ID's, it's not against (this) law to make them.

Here, the government introduced color photocopies of fake driver's licenses. The Seventh Circuit said these clearly don't count:

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.

Perhaps more as an insult to Mr. Spears craft, the Seventh Circuit also rejected other purported identification documents:

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 examination of these "driver's licenses" would think they are state- issued.

With that denigration of Mr. Spears craft, the Seventh Circuit remanded the case for resentencing.

What are the implications of this case for McLovin'?

Warning - NSFW if where you work isn't F-word friendly:

http://www.youtube.com/watch?feature=player_embedded&v=D9IK3pBdwPg

Published In: Criminal Law Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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