Culpable States of Mind18 U.S.C. § 1028
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.|
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.
- 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
- 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
United States v. Bailey, 444 U.S. 394, 404 (1980).
[cited in USAM 9-64.400]