                               In the

    United States Court of Appeals
                 For the Seventh Circuit
                     ____________________
No. 19-2061
UNITED STATES OF AMERICA,
                                                   Plaintiff-Appellee,
                                 v.

JEREMY C. WADE,
                                               Defendant-Appellant.
                     ____________________

         Appeal from the United States District Court for the
                   Eastern District of Wisconsin.
           No. 18-cr-00076 — Pamela Pepper, Chief Judge.
                     ____________________

      ARGUED APRIL 15, 2020 — DECIDED JUNE 26, 2020
                ____________________

   Before MANION, HAMILTON, and BARRETT, Circuit Judges.
    MANION, Circuit Judge. Jeremy Wade hoped to reacquaint
himself with a girl he knew in high school so he could ask her
for a date. Instead of simply giving her a call, Wade masquer-
aded as an agent of the Drug Enforcement Administration
(“DEA”) to persuade the object of his unrequited aﬀection to
go out with him. In doing so he violated 18 U.S.C. § 912,
which prohibits impersonating a United States employee and
acting in conformity with that pretense. Wade argued to the
2                                                  No. 19-2061

district court that his alleged romantic motivation (as op-
posed to a nefarious intent to deceive or defraud) negated a
culpable state of mind, but we have held intent to defraud is
not a separate element of § 912. Accordingly, the district court
prevented Wade from making this argument and refused to
instruct the jury on intent to defraud. The jury found him
guilty. We aﬃrm the conviction.
                         I. Background
    Wade twice pretended to be a DEA agent in January and
February 2018. The ﬁrst time he drove a white Cadillac SUV
one early evening to the house of Nicole Bishop. Wade and
Bishop had attended high school together and had a few
friends in common, though they did not socialize then or
thereafter. Bishop saw him approaching her house and noted
he had a law enforcement badge around his neck and a hol-
stered gun. Believing based on these details he was a law en-
forcement oﬃcer, she opened her door to him. Wade pro-
ceeded to pretend he was investigating a suspect named
“Zach Light.” After Bishop denied having any knowledge of
Zach Light, Wade retrieved a mug shot of the alleged suspect
from his car. Bishop conﬁrmed again that she did not know
the individual pictured. Wade then asked if she remembered
him (Wade), and she said she did. He apparently left after this.
    About a week later, Wade returned to Bishop’s home and
left a business card in her mailbox. This business card claimed
Wade was a special agent of the DEA. It also listed two phone
numbers and an email address made to look like an oﬃcial
Department of Justice address. Wade left the following hand-
written message on the back of the card:
No. 19-2061                                                     3

   I realized when I was here last week I didn’t leave you
   any way to get a hold of me. So if something comes to
   mind about the guy I was looking for or most im-
   portantly, if you realize, “hey, it’s time I let this guy
   take me out,” all my info is on the front. Text any time!!
    Bishop was not amused. She reported Wade’s interactions
to the police, who opened a stalking investigation. Oﬃcers in-
vited Wade to the police station to make a statement, and
Wade did so. During the interview, Wade was evasive regard-
ing the identity of his employer.
    Wade was indicted on two counts of impersonating a
United States employee and acting as such in violation of 18
U.S.C. § 912. Before trial, the government ﬁled a motion in
limine to preclude Wade from arguing his romantic motiva-
tion negated his culpability. The government argued § 912
does not require proof of intent to defraud, referring to it as a
“strict liability” oﬀense. The government likened it to posses-
sion of a ﬁrearm by a felon, 18 U.S.C. § 922(g)(1), where the
felon’s motivation for possessing the ﬁrearm is irrelevant and
evidence of motive is often precluded by courts. According to
the government, Wade’s arguments about his romantic moti-
vation could only encourage jury nulliﬁcation by causing the
jury to conclude his actions, though illegal, were not serious
or harmful. The judge agreed and granted the motion. Even
so, during closing argument, defense counsel told the jury:
“Although [Wade] might be a hopeless romantic, he’s not a
criminal.”
    The judge also ruled against Wade’s proposed jury in-
structions that would have required the jury to ﬁnd Wade
acted “knowingly with intent to deceive or defraud,” deﬁned
as “to act with the speciﬁc intent to try to get a person to do
4                                                  No. 19-2061

something he would not otherwise have done.” Wade pro-
posed an alternative instruction requiring the jury to ﬁnd be-
yond a reasonable doubt that he “by artiﬁce or deceit, sought
to cause the deceived person to follow some course he or she
would not have pursued but for the deceitful conduct.” The
judge rejected this instruction as well. Instead, the court pro-
vided an instruction requiring the jury to ﬁnd the following
beyond a reasonable doubt:
    1. The defendant falsely assumed or pretended to be
    an oﬃcer or employee of the Drug Enforcement Ad-
    ministration, and
    2. As such oﬃcer or employee, the defendant commit-
    ted some overt act involving an assertion of claimed
    authority derived from the oﬃce the defendant pre-
    tended to hold.
  The jury convicted Wade on both counts after a brief trial.
Wade appeals.
                           II. Discussion
    Wade challenges both the district court’s jury instructions
and the motion in limine ruling on the basis that intent to de-
fraud is an essential element of § 912. Additionally, he argues
the evidence was insuﬃcient to support the jury’s verdict on
either count.
    1. Jury Instructions
    We review de novo “whether the jury instructions accu-
rately summarize the law, but give the district court substan-
tial discretion to formulate the instructions provided that the
instructions represent a complete and correct statement of the
law.” United States v. Bonin, 932 F.3d 523, 537–38 (7th Cir.
No. 19-2061                                                              5

2019). The omission of an element from the jury instructions
amounts to a violation of the defendant’s Sixth Amendment
right to a jury trial. Neder v. United States, 527 U.S. 1, 12 (1999).
But such an omission is subject to harmless-error analysis. Id.
at 9–10. If it is “clear beyond a reasonable doubt that a rational
jury would have found the defendant guilty absent the error,”
then the error does not warrant reversal. Id. at 18.
    Section 912 has two clauses, prohibiting two kinds of con-
duct. United States v. Rippee, 961 F.2d 677, 678 (7th Cir. 1992).
The ﬁrst clause of the statute penalizes anyone who “falsely
assumes or pretends to be an oﬃcer or employee acting under
the authority of the United States or any department, agency
or oﬃce thereof, and acts as such.” 1 18 U.S.C. § 912. This of-
fense has two elements: (1) falsely impersonating a United
States employee or oﬃcer, and (2) committing “an overt act in
conformity with the pretense.” See Rippee, 961 F.2d at 678.
    Wade argues the oﬀense requires submission of a third el-
ement to the jury: an intent to defraud or deceive. He builds
his case from legislative history and the Supreme Court case
United States v. Lepowitch, 318 U.S. 702 (1943). Prior to a 1948
revision, the oﬀense of falsely impersonating a United States
oﬃcer or employee explicitly required that the defendant
acted “with intent to defraud either the United States or any
person.” See United States v. Rosser, 528 F.2d 652, 654 (D.C. Cir.
1976). In 1943, the Supreme Court held “the words ‘intent to
defraud,’ in the context of this statute, do not require more


    1The second clause prohibits “false impersonation of a federal official
coupled with demanding or obtaining a thing of value.” Rippee, 961 F.2d
at 678. Wade was indicted under the acts-as-such clause, so the second
clause is not at issue in this case.
6                                                    No. 19-2061

than the defendants have, by artiﬁce and deceit, sought to
cause the deceived person to follow some course he would
not have pursued but for the deceitful conduct.” Lepowitch,
318 U.S. at 704. In 1948, Congress revised the statute to its pre-
sent form, removing the “intent to defraud” language. The re-
viser’s note simply stated “[t]he words ‘with the intent to de-
fraud the United States or any person’ … were omitted as
meaningless in view of [United States v. Lepowitch].”
    In Rosser, the D.C. Circuit examined the eﬀect of this revi-
sion and reconciled the competing notions that “Congress did
not intend to increase the scope of” the statute by the 1948
revision, but “courts should be extremely hesitant to read
back into the statutory deﬁnition of a crime words speciﬁcally
excised by Congress.” 528 F.2d at 656. The Rosser court con-
cluded both concerns may be accommodated “[i]f acting ‘as
such’ is understood to mean performing an overt act that as-
serts, implicitly or explicitly, authority that the impersonator
claims to have by virtue of the oﬃce he pretends to hold.” Id.
“[I]t seems reasonable for Congress to have concluded that
virtually everyone who pretends to be an oﬃcer or employee
of the United States and in some manner asserts authority by
acting ‘as such’ seeks ‘to cause the deceived person to follow
some course he would not have pursued but for the deceitful
conduct.’” Id.
   Wade points to Rosser and decisions of other circuits to ar-
gue the 1948 revision was not meant to remove intent to de-
fraud as an element of the oﬀense but simply recognized in-
tent to defraud was inherent in the oﬀense, making the lan-
guage redundant. As an initial matter, Wade’s reliance on
Rosser is misplaced. The court in that case speciﬁcally refer-
enced Congress’s revision as the “elimination of intent to
No. 19-2061                                                   7

defraud as an element of” the oﬀense, noting that the elimi-
nation was consistent with Lepowitch. Id. Rosser also aﬃrmed
instructions by which “the jury was told that to ﬁnd Rosser
guilty it must ﬁnd that he had falsely pretended to be an of-
ﬁcer or employee of the United States and that he had ‘com-
mitted some overt act as such employee,’” without any further
instructions regarding intent to defraud or deceive. Id. at 658.
The instructions in this case also identiﬁed those two elements
and thus were substantially the same as those aﬃrmed in
Rosser.
    More importantly, our precedent stands against Wade’s
position as well. In United States v. Cord, we held fraudulent
intent is not an essential element of § 912. 654 F.2d 490, 492
(7th Cir. 1981). Citing Rosser’s analysis, we concluded it is
“implicit in the remaining language … that the ‘acts’ … cause
a victim to follow a path he would not otherwise have taken,”
so there is no need to separately allege or prove an intent to
defraud or deceive. Id. Wade argues the issue in Cord was only
whether fraudulent intent must be alleged in the indictment,
not whether it must be submitted to the jury. But our reason-
ing in Cord was broader than the indictment context. We
stated “[t]he code section was changed to eliminate the ele-
ment of intent to defraud; this change cannot simply be ig-
nored.” Id.
    We do, however, want to take care in delineating the dif-
ference between the proper scope of § 912 on the one hand
and criminalizing mere boastful speech on the other. That dif-
ference is found in the second element of the oﬀense: the acts-
as-such element. In United States v. Bonin, we examined a First
Amendment challenge to § 912’s acts-as-such impersonation
oﬀense, and explained it is the requirement of an “intentional
8                                                    No. 19-2061

action in the pretended character sought to cause the deceived
person to follow some course he would not have pursued but
for the deceitful conduct” that saves this oﬀense from uncon-
stitutionally abridging protected speech. 932 F.3d at 536
(quoting Lepowitch, 318 U.S. at 704) (internal markings omit-
ted); see also Rosser, 528 F.2d at 657–58 (“[F]ocusing attention
on the nature of the defendant’s action should diﬀerentiate
the mere braggart from the criminal.”). Our cases applying
§ 912’s acts-as-such clause have involved overt action taken to
cause the victim to follow a course of action he would not
have otherwise pursued. See, e.g., Bonin, 932 F.3d at 536 (de-
fendant falsely pretended to be a U.S. Marshal to cause movie
theater audience to tolerate his rude and threatening behavior
and to prevent police oﬃcers from taking action against him);
United States v. Hamilton, 276 F.2d 96, 97–98 (7th Cir. 1960) (de-
fendant falsely told boarding house owner that he was a “Fed-
eral tax man” and FBI agent, inﬂuencing her to tolerate him
carrying a gun openly in her house).
    Bonin, Cord, and Hamilton aﬃrm that the second element
encompasses the defendant’s overt act in the pretended char-
acter intended to cause the victim to take a course of action he
or she would not otherwise pursue. This was the conclusion
of Rosser as well, taking its cue from Lepowitch. But it does not
require separate proof of a nefarious intent to defraud or de-
ceive.
   Wade’s second proposed jury instruction tracked the lan-
guage of Lepowitch and would have been helpful to direct the
jury to the proper application and scope of § 912. The district
court would have done well to use such language. But, as in
Bonin, an intent to cause the victim to follow a course she oth-
erwise would not pursue was inherent in the court’s
No. 19-2061                                                                9

instructions on the acts-as-such element. In fact, the instruc-
tions here were nearly identical to the instructions aﬃrmed in
Bonin, with the added instruction that the jury must ﬁnd the
overt act “involve[d] the assertion of authority.”2 As the D.C.
Circuit held in Rosser, such an assertion of authority will vir-
tually always involve a purpose to inﬂuence the victim to fol-
low some course of action she otherwise would not have pur-
sued. Rosser, 528 F.2d at 656. In fact, even under Wade’s
“hopeless romantic” theory of the case, he sought to cause
Bishop (a single woman living alone) to open the door of her
home to him (an armed man whom she did not know well),
to engage and continue in conversation with him, to answer
questions about a make-believe criminal suspect, to text or
call him either with information related to the investigation or
for romantic purposes, and, ultimately, to go out with him.
Most, if not all, of these are things Bishop would have been
unlikely to do absent Wade’s pretense.
    Accordingly, the district court did not err by not explicitly
instructing the jury that it must conclude Wade intended to
cause Bishop to follow a course of action she otherwise would
not have pursued to ﬁnd him guilty.
   Intent to defraud aside, the ﬁrst element of § 912 implicitly
requires a mens rea element: the defendant’s knowledge that




2 We stated in Bonin that an “assertion of authority” instruction for a § 912
acts-as-such offense is unnecessary since the statutory language does not
include this. 932 F.3d at 539. But where, as here, the jury did find the de-
fendant’s overt action involved an assertion of authority, there is little
doubt the act also encompassed an attempt to influence the victim to fol-
low a course of action she otherwise would not have pursued.
10                                                              No. 19-2061

he is not truly an oﬃcer or employee of the United States. 3 See
Bonin, 932 F.3d at 538–39. The district court concluded it was
not necessary to separately instruct the jury on this scienter
requirement because one cannot falsely pretend without
knowing one’s pretense is false. We held in Bonin, however,
that failure to instruct on this mens rea element is an error,
though it may be a harmless one. Id. Here, the error was in-
deed harmless. The record includes no evidence to support a
ﬁnding that Wade did not know he was not a DEA agent, and
Wade concedes he never argued this. Wade’s alleged romantic
intent does nothing to negate the scienter requirement, either,
because his motivation has no bearing on whether he knew
he was not a DEA agent.
    Accordingly, we ﬁnd no reversible error in the court’s jury
instructions.



     3 Throughout his written submissions and oral argument, Wade con-
strued the district court’s failure to instruct on intent to defraud as an elim-
ination of any mens rea element and transformation of § 912 into a strict
liability offense. Although it now accuses Wade of “conflating motivation
with mens rea,” the government muddied that water itself by referring to
§ 912 as a strict liability offense at the pre-trial conference in the district
court. That was an incorrect and troubling representation, since the Su-
preme Court has instructed “the general rule is that a guilty mind is a nec-
essary element in the indictment and proof of every crime,” and courts
should “generally interpret criminal statutes to include broadly applicable
scienter requirements, even where the statute by its terms does not contain
them.” Elonis v. United States, 135 S. Ct. 2001, 2009 (2015) (internal mark-
ings omitted). However, it appears from the transcript that the parties and
the court understood the government’s argument to be that the defend-
ant’s underlying motivation was irrelevant to the offense elements, not that
no mens rea was necessary at all. That argument, though improperly artic-
ulated, was correct.
No. 19-2061                                                    11

   2. Motion In Limine
   We generally review decisions on motions in limine for
abuse of discretion. See Aldridge v. Forest River, Inc., 635 F.3d
870, 874 (7th Cir. 2011). Here, the district court granted the
motion based on its determination that evidence of Wade’s
romantic intent was insuﬃcient as a matter of law to establish
a defense to § 912 and would instead invite jury nulliﬁcation.
“The legal suﬃciency of a proﬀered defense is a question of
law and therefore is reviewed de novo.” United States v. Santi-
ago-Godinez, 12 F.3d 722, 726 (7th Cir. 1993). We therefore re-
view de novo the district court’s legal conclusions underlying
the grant of the motion, though we still review its ultimate
decision to grant the motion for abuse of discretion.
    As we have already explained, an intent to defraud or de-
ceive is not a separate element of § 912. The district court did
not err in concluding Wade’s alleged romantic motivation
was not relevant to whether he (1) knowingly falsely pre-
tended to be a United States oﬃcer or employee and (2) en-
gaged in an overt act sought to cause the victim to follow a
course of action she otherwise would not have pursued. His
motivation does not negate his knowledge that he was not, in
fact, a DEA agent. It also has no bearing on whether he com-
mitted an overt act to cause Bishop to follow a course of action
she would not otherwise pursue.
    Wade argues his romantic motivation undermines any
true assertion of authority, but this is a meritless argument as
well. First, even though the district court instructed the jury it
must ﬁnd an overt act “involving an assertion of authority,”
we have held that no such instruction is required. Bonin, 932
F.3d at 539. The statute’s language does not require an asser-
tion of authority, and “acting as such” has been deﬁned to
12                                                  No. 19-2061

mean “acting in the pretended character, and not necessarily
doing an act which defendant would have been authorized to
do under the authority of the assumed capacity.” Hamilton,
276 F.2d at 98. Furthermore, the evidence supports the con-
clusion that Wade did assert the authority of a DEA agent by
taking actions in conformity with his pretended character.
Wade represented to Bishop that he was investigating a sus-
pect, showed her pictures of the fake suspect, and left a false
DEA business card in her mailbox with instructions to call or
text him if she remembered any information related to his
purported investigation. The fact that he purportedly took
such actions out of a misguided attempt to convince her to go
out with him makes no diﬀerence.
    Thus, the only eﬀect the romantic-motivation argument
could have had was to cause the jury to conclude Wade’s
crime was not all that serious or harmful, leading to jury nul-
liﬁcation. This is precisely what the district court determined
as well, which is why the argument was precluded. Although
every jury has the de facto power of nulliﬁcation due to the
unreviewable nature of a judgment of acquittal, a defendant
has no right to argue for the jury to disregard the law. Gibbs v.
VanNatta, 329 F.3d 582, 584 (7th Cir. 2003). The district court’s
underlying legal conclusions were correct, and it did not
abuse its discretion by granting the motion in limine.
     3. Suﬃciency of the Evidence
   Wade raises one more argument on appeal, challenging
the suﬃciency of the evidence to convict him on either count.
According to Wade, § 912’s “acts as such” clause requires an
overt act separate and distinguishable from the original pre-
tense, whereas his actions were indistinguishable from the
pretense itself or mere repetitions of the pretense.
No. 19-2061                                                 13

    When reviewing a challenge to the suﬃciency of the evi-
dence, we view the evidence in the light most favorable to the
government and will overturn the jury’s verdict “only when
the record contains no evidence, regardless of how it is
weighed, from which the jury could ﬁnd guilt beyond a rea-
sonable doubt.” United States v. Torres-Chavez, 744 F.3d 988,
993 (7th Cir. 2014).
    Wade’s argument fails to overcome the “nearly insur-
mountable” burden of proving that the evidence could not
support the jury’s ﬁnding of guilt. Id. The evidence was more
than suﬃcient for the jury to ﬁnd Wade guilty. During the
ﬁrst encounter, Wade went beyond merely asserting a pre-
tense by wearing a badge and gun, interviewing Bishop about
a fake investigation, and showing her a photograph of the
pretend subject of his investigation. Regarding the second in-
cident, Wade argues that leaving the business card cannot suf-
ﬁce for both elements of the oﬀense (falsely pretending and
acting as such), but he misstates the facts. By leaving the oﬃ-
cial-looking business card, Wade again falsely pretended to
be a DEA agent (the card identiﬁed him as an agent and in-
cluded an oﬃcial-looking DOJ email address). He then went
beyond this pretense by also leaving the handwritten note,
which once again asked Bishop for information related to his
fake investigation and prompted her to contact him. Thus,
both elements of the oﬀense were present in both counts, and
the evidence viewed in the light most favorable to the govern-
ment supports the jury’s verdict.
                        III. Conclusion
    Wade argues he is “a hopeless romantic,” not a criminal.
Those roles need not be mutually exclusive, however. Regard-
less of his alleged motivation for doing so, Wade violated
14                                            No. 19-2061

§ 912 by falsely pretending to be a United States employee
and acting as such. Accordingly, we AFFIRM.
