Critical Nonjurisdictional Terms18 U.S.C. §
There are seven critical nonjurisdictional terms in 18 U.S.C. §
1028(a). They are (A) "false"; (B) "stolen"; (C) "lawful authority"; (D)
"produced without lawful authority"; (E) "produced without authority"; (F)
"issued lawfully for the use of the possessor"; and (G) "used in the
- False -- The concept of a false identification document has been fully
discussed in this Manual at 1507.
- Stolen -- This term is not defined in section 1028, but it is intended
cover identification documents "obtained by fraudulent means, as well as
Hence it covers all forms of unlawful takings and is not limited to common
larceny. See Bell v. United States, 462 U.S. 356 (1983);
States v. Turley, 352 U.S. 407 (1957). It would appear that a genuine
identification document obtained by fraud from a government agency could be
considered as "stolen" under section 1028(a)(2) and (a)(6). Of course,
section 1028(a)(2) the gist of the offense is not the acquisition of an
identification document by false information, but rather the transfer of
"stolen" identification document, while under section 1028(a)(6) the gist of
offense is the possession of such a "stolen" (i.e., falsely acquired)
identification document of the United States.
- Lawful Authority -- This term is not defined in section 1028. It
to the authority to manufacture, prepare or issue identification documents
statute or regulation, or by contract pursuant to such authority. A person,
as a clerk, who is authorized to issue identification documents upon the
satisfaction of certain requirements, could be acting without lawful
if he issued an identification document knowing that the requirements had
been fulfilled. Similarly, a party printing identification documents under
authorized contract could be producing without lawful authority if he
to deliver an identification document to any party other than an authorized
- Produced Without Lawful Authority -- This term, which is not defined in
section 1028, appears in subsection (a) (2). That subsection precludes the
transfer of such a document. Producing without lawful authority goes to the
legality of the execution of the document. If the issuer had the lawful
authority to issue the document, it was produced with lawful authority even
the recipient was not entitled to it, provided the issuer did not know that
recipient was not entitled to it.
- Produced Without Authority -- This term, which is not defined in
1028, appears in subsection 1028(a) (6). However, it is reasonable to treat
word "lawful" as being understood since (a) (6)'s antecedent is obviously
subsection(a) (1) and there is no indication that Congress intended these
terms to have any difference in meaning in these two subsections.F. Issued
Lawfully for the Use of the Possessor -- This term is not defined in section
1028. It excludes genuine documents issued lawfully by a government agency
the possessor. It does not exempt such a document if it is turned over to
another person for his use (e.g., impersonation of the original recipient).
phrase "issued lawfully for the use of the possessor" refers to those
documents issued by the proper governmental authorities to which the
is legally entitled, i.e., the applicant met all the material criteria for
obtaining the identification document. Hence, an individual who applies for
hunting license which requires a minimum age of 18 and who is actually only
and who misrepresents his age, has not received an identification document
"issued lawfully for the use of the possessor" even though the document is
genuine and is in his true name. Likewise, a document applied for in a
fictitious name would not be considered as "issued lawfully" if the true
the individual was a material aspect of the issuance of the document by the
government agency. Furthermore, an identification document that was lost by
original recipient, stolen from the original recipient or turned over by the
original recipient to another person who now happens to be in possession of
document was not issued lawfully for the use of the current possessor.
- The term "other than issued lawfully for the use of the possessor"
comes into play only under subsections (a) (3) and (a) (4). Under section
1028(a) (3), the relevant prohibited conduct involving this term would be
possession with the purpose of using or transferring unlawfully five or more
genuine identification documents to which the possessor was not entitled.
if a subject has five or more such genuine documents and there is evidence
show a purpose to use or transfer unlawfully these genuine documents, such
conduct can be reached under section 1028(a) (3). Under this subsection,
violations involving this term will be limited to situations involving
perpetrators who have purposely created multiple identities for themselves.
- Section 1028(a)(4) can involve a greater number of potential
because under this subsection only one document is necessary for a
Section 1028(a)(4) prohibits the knowing possession of a genuine
document (other than one issued lawfully for the use of the possessor) with
purpose of such document being used to defraud the United States.
this subsection could involve genuine documents which were not actually
to the possessor (e.g., stolen from the person or lost by the person to whom
originally issued or "turned-over" by the original recipient which he was
legally entitled to receive in the first place.)
- Used in the Production -- This term is utilized in section 1028(a) (5)
relates to the improper purpose for which a document-making implement is
to be used. It appears to be self-evident. It implicitly recognizes that
document-making implements also serve a lawful purpose and may be legally
possessed or transferred.
[updated May 1999] [cited in USAM 9-64.400]