Operative Terms18 U.S.C. § 1028
Section 1028 of Title 18 has three basic operative offenses. They
to "produce," "transfer," or "possess." With the exception of simple
of a United States identification document which was stolen or produced
lawful authority, which is prohibited by 18 U.S.C. § 1028(a)(6),
is always coupled with the purpose to "use unlawfully," "transfer
"use to defraud the United States." Hence, it is necessary to understand
scope of the words "produce," "transfer," "possess," "use," and "defraud the
- "Produce" is defined in section 1028(d)(2) to include "alter,
authenticate, or assemble." Obviously, since the word "include" is used in
definition, the term is not limited to these three concepts but also
all forms of counterfeiting, forging, making, manufacturing, issuing, and
publishing. A government employee whose duty is to simply issue
documents (i.e., he does not manufacture or assemble the documents) is, by
issuing the document, authenticating it. If such an employee were to
authenticate such documents without lawful authority, it would constitute an
offense under section 1028(a)(1).
- "Transfer" is not defined in section 1028, but is intended to reach
persons who "traffic" in stolen and false identification. It includes the
of selling, pledging, distributing, giving, loaning or otherwise
It does not require any exchange of consideration (anything of value) for
transfer. To transfer "unlawfully" means the transfer of an identification
document in a manner forbidden by federal, state, or local law.
- "Possess" is not defined in section 1028 but is to be construed
It includes the concept of "receipt" but is not limited thereto.
possession would also be included.
- "Use" is not defined in section 1028 but is to be broadly construed and
includes presenting, displaying, certifying, or otherwise giving currency to
identification document so that it would be accepted as an identification
document in any manner. To use "unlawfully" means that the document was
a manner that violates a federal, state or local law, or is part of a
misrepresentation that violates a law. For example, section 1028(a)(3)
violated if the possessor intended to use five or more documents to make
representations in any matter within the jurisdiction of any department or
of the United States in violation of 18 U.S.C. § 1001.
- "Defraud the United States" is not defined in section 1028 but is not
intended to be limited to misrepresentations related to financial fraud. It
would also include the misrepresentative use of false identification to
functions of the government (e.g., display to a government investigator a
pilot's license or someone else's driver's license for the purpose of trying
deceive or mislead the investigator).
[cited in USAM 9-64.400]