1509

Operative Terms—18 U.S.C. § 1028

Section 1028 of Title 18 has three basic operative offenses. They are to "produce," "transfer," or "possess." With the exception of simple possession of a United States identification document which was stolen or produced without lawful authority, which is prohibited by 18 U.S.C. § 1028(a)(6), possession is always coupled with the purpose to "use unlawfully," "transfer unlawfully" or "use to defraud the United States." Hence, it is necessary to understand the scope of the words "produce," "transfer," "possess," "use," and "defraud the United States." "Produce" is defined in section 1028(d)(2) to include "alter, authenticate, or assemble." Obviously, since the word "include" is used in the definition, the term is not limited to these three concepts but also encompasses all forms of counterfeiting, forging, making, manufacturing, issuing, and publishing. A government employee whose duty is to simply issue identification 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 those persons who "traffic" in stolen and false identification. It includes the acts of selling, pledging, distributing, giving, loaning or otherwise transferring. It does not require any exchange of consideration (anything of value) for the 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 broadly. It includes the concept of "receipt" but is not limited thereto. Constructive 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 an identification document so that it would be accepted as an identification document in any manner. To use "unlawfully" means that the document was used in 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) would be violated if the possessor intended to use five or more documents to make representations in any matter within the jurisdiction of any department or agency 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 obstruct functions of the government (e.g., display to a government investigator a false pilot's license or someone else's driver's license for the purpose of trying to deceive or mislead the investigator). [cited in USAM 9-64.400]