                                                            [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________                  FILED
                                                          U.S. COURT OF APPEALS
                               No. 08-12275                 ELEVENTH CIRCUIT
                                                            DECEMBER 19, 2008
                           Non-Argument Calendar
                                                             THOMAS K. KAHN
                         ________________________
                                                                  CLERK

                     D. C. Docket No. 06-20020-CR-WMH

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                     versus

ROGER JOSEPH,

                                                            Defendant-Appellant.


                         ________________________

                  Appeal from the United States District Court
                      for the Southern District of Florida
                        _________________________

                              (December 19, 2008)

Before ANDERSON, BIRCH and HULL, Circuit Judges.

PER CURIAM:

    Roger Joseph appeals his convictions for: (1) transferring and possessing a
means of identification of another person, i.e., aggravated identity theft, in

violation of 18 U.S.C. § 1028A(a)(1) (Counts 5-7); and (2) possessing with the

intent to use and transfer five or more false documents, in violation of 18 U.S.C.

§ 1028(a)(3) (Count 12).

      On appeal, Joseph argues that the district court erred in instructing the jury in

a supplemental instruction that it only had to find that the documents, rather than

Joseph’s actions, affected interstate commerce with respect to Count 12. He asserts

that the error was prejudicial and resulted in a higher sentence than he should have

received. Joseph asserts that his counsel did not invite error, and thereby waive his

right to assert that the supplemental instruction was erroneous, because he did not

intentionally relinquish a known right as required by United States v. Olano, 507

U.S. 725, 732, 113 S.Ct. 1770, 1777 (1993). Instead, when Joseph’s counsel agreed

to the supplemental instruction, he, along with the district court and the

government, was operating under a misapprehension of the law and therefore did

not abandon a “known” right. Therefore, Joseph maintains that his challenge to the

supplemental instruction should be viewed as forfeited and subject to plain error

review, rather than waived. He notes that our cases, such as United States v.

Silvestri, 409 F.3d 1311, 1357 (11th Cir. 2005), which provided that a defense

counsel’s acceptance of a proposed jury instruction precludes review, do



                                            2
not mention Olano or indicate that they were utilizing Olano’s requirement that

counsel must intentionally relinquish a known right. Finally, Joseph asserts that the

district court’s supplemental instruction was plainly erroneous.

      Invited error precludes review of the error on appeal. Silvestri, 409 F.3d at

1337. When a party, rather than just remaining silent and not objecting, responds to

the Court’s proposed instruction with the words, “the instruction is acceptable to

us,” this constitutes invited error. United States v. Fulford, 267 F.3d 1241, 1246-47

(11th Cir. 2001) (refusing to consider defendant’s challenge to a supplemental jury

instruction given in response to a jury question). In Olano, the Supreme Court

stated that waiver involves “the intentional relinquishment or abandonment of a

known right.” Olano, 507 U.S. at 733, 113 S.Ct. at 1777 (quotation omitted).

      We decline to address Joseph’s argument that we should disregard our prior

precedent because even under plain error review, Joseph’s argument fails. Under

18 U.S.C. § 1028(a)(1) and (c)(3)(A), it is a crime to unlawfully produce an

identification document when the production “is in or affects interstate or foreign

commerce.” To satisfy the interstate commerce requirement, however, the

government need only show a minimal nexus. United States v. Klopf, 423 F.3d

1228, 1239 (11th Cir. 2005). The government may prove the requisite minimal

nexus by showing either that the defendant's actions actually affected interstate



                                           3
commerce, see 18 U.S.C. § 1028(c)(3)(A), or by showing that the defendant “had

the intent to accomplish acts, which, if successful, would have affected interstate or

foreign commerce.” Klopf, 423 F.3d at 1239. Here, the Government put on a

witness who testified that Joseph created the documents at the witness’s behest, and

that testimony refuted Joseph’s claim that he did not know where the blank

documents found in his shop came from and that he was not involved with them.

That testimony further showed that Joseph had the intent necessary to produce

Social Security cards, Bahamian work authorization documents, and Florida

identification cards that would necessarily be used in interstate and foreign

commerce. Furthermore, if there was error in the instruction, it did not prejudice

the defendant because the evidence clearly refuted his defense of lack of

knowledge.

                                          II.

      Joseph next argues that the government should have been required to prove

that he knew that the means of identification at issue in Counts 5-7 belonged to

actual people. He acknowledges that our precedent in United States v. Hurtado, 508

F.3d 603, 609-10 (11th Cir. 2007), cert. denied, 128 S.Ct. 2903 (2008), forecloses

this argument, but he is attempting to preserve the issue for appeal.

      We review questions of statutory interpretation de novo. United States v.



                                           4
Mazarky, 499 F.3d 1246, 1248 (11th Cir. 2007). Under 18 U.S.C. § 1028A(a)(1),

an individual who, “during and in relation to any felony violation enumerated in

[§ 1028A(c)], knowingly transfers, possesses, or uses, without lawful authority, a

means of identification of another person shall, in addition to the punishment

provided for such felony, be sentenced to a term of imprisonment of 2 years.” In

Hurtado, we held that the government did not have to establish that the defendant

knew that the means of identification that he possessed and used belonged to an

actual person. Hurtado, 508 F.3d at 610.

      Because Joseph did not raise this issue in the district court, it is reviewed for

plain error. See United States v. Raad, 406 F.3d 1322, 1323 (11th Cir. 2005)

(stating that an argument is reviewed for plain error when the defendant did not

object below). Consequently, Joseph must prove that “(1) there is an error; (2) that

is plain or obvious; (3) affecting [his] substantial rights in that it was prejudicial and

not harmless; and (4) that seriously affects the fairness, integrity, or public

reputation of the judicial proceedings.” Id. (quotations and citations omitted).

      As binding precedent forecloses Joseph’s argument on this issue, we affirm.

      AFFIRMED.         1




       1
           Joseph’s request for oral argument is denied.

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