There are three different terms used in 18 U.S.C. § 1028 to connote the culpable state of mind requirement for an offense. They are: (A) "knowingly"; (B) "knowing"; and (C) "with the intent." The first two are, for all practicable purposes, the same.
- Knowingly: The first five subsections of section 1028(a) start with this term. A knowing state of mind with respect to an element of the offense is (1) an awareness of the nature of one's conduct, and (2) an awareness of or a firm belief in the existence of a relevant circumstance, such as the "stolen," the "produced without lawful authority," or "false" nature of the identification document. The knowing state of mind requirement may be satisfied by proof that the actor was aware of a high probability of the existence of the circumstance (e.g., stolen or false nature of the document), although a defense should succeed if it is proven that the actor actually believed that the circumstance did not exist after taking reasonable steps to ensure that such belief was warranted. Section 1028 follows the approach of the Model Penal Code (§ 2.02(7)) in dealing with what has been called "willful blindness," the situation where the actor, aware of the probable existence of a material fact, does not take steps to ascertain that it does not exist. Willful blindness would require an awareness of a high probability of the existence of the circumstance. United States v. Jewell, 532 F.2d 697, 700 n. 7 (9th Cir.), cert. denied, 426 U.S. 951 (1976).
- Knowing -- This term appears in sections 1028(a)(2) and (a)(6). As such, it applies to a knowledge of a relevant circumstance (e.g., the character of the document as "stolen" or "produced without lawful authority"). The above discussion of "knowingly" is equally applicable to "knowing."
- With the Intent -- This term, which appears in sections 1028(a)(3), (a)(4), and (a)(5), is intended to mean the same culpable state of mind as that described by the term "purpose" in the Model Penal Code (§ 2.02). The distinction between "with the intent" (i.e., "purpose") and a "knowing state of mind" was restated by Justice Rehnquist:
As we pointed out in United States v. United States Gypsum Co., 438 U.S. 422, 445 (1978), a person who causes a particular result is said to act purposefully if `he consciously desires that result, whatever the likelihood of that result happening from his conduct,' while he is said to act knowingly if he is aware `that the result is practically certain to follow from his conduct, whatever his desire may be as to that result.
United States v. Bailey, 444 U.S. 394, 404 (1980).
[cited in USAM 9-64.400]