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Critical Nonjurisdictional Terms—18 U.S.C. §  1028

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 production."

  1. False -- The concept of a false identification document has been fully discussed in this Manual at 1507.

  2. Stolen -- This term is not defined in section 1028, but it is intended to cover identification documents "obtained by fraudulent means, as well as theft." Hence it covers all forms of unlawful takings and is not limited to common law larceny. See Bell v. United States, 462 U.S. 356 (1983); United 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, under 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 such a "stolen" identification document, while under section 1028(a)(6) the gist of the offense is the possession of such a "stolen" (i.e., falsely acquired) identification document of the United States.

  3. Lawful Authority -- This term is not defined in section 1028. It refers to the authority to manufacture, prepare or issue identification documents by statute or regulation, or by contract pursuant to such authority. A person, such as a clerk, who is authorized to issue identification documents upon the satisfaction of certain requirements, could be acting without lawful authority if he issued an identification document knowing that the requirements had not been fulfilled. Similarly, a party printing identification documents under an authorized contract could be producing without lawful authority if he intended to deliver an identification document to any party other than an authorized recipient.

  4. 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 if the recipient was not entitled to it, provided the issuer did not know that the recipient was not entitled to it.

  5. Produced Without Authority -- This term, which is not defined in section 1028, appears in subsection 1028(a) (6). However, it is reasonable to treat the word "lawful" as being understood since (a) (6)'s antecedent is obviously subsection(a) (1) and there is no indication that Congress intended these two 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 to 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). The phrase "issued lawfully for the use of the possessor" refers to those genuine documents issued by the proper governmental authorities to which the applicant is legally entitled, i.e., the applicant met all the material criteria for obtaining the identification document. Hence, an individual who applies for a hunting license which requires a minimum age of 18 and who is actually only 16 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 name of the individual was a material aspect of the issuance of the document by the government agency. Furthermore, an identification document that was lost by the 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 the 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 the possession with the purpose of using or transferring unlawfully five or more genuine identification documents to which the possessor was not entitled. Hence, if a subject has five or more such genuine documents and there is evidence to show a purpose to use or transfer unlawfully these genuine documents, such conduct can be reached under section 1028(a) (3). Under this subsection, most 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 violators because under this subsection only one document is necessary for a violation. Section 1028(a)(4) prohibits the knowing possession of a genuine identification document (other than one issued lawfully for the use of the possessor) with the purpose of such document being used to defraud the United States. Consequently, this subsection could involve genuine documents which were not actually issued 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 not legally entitled to receive in the first place.)

  6. Used in the Production -- This term is utilized in section 1028(a) (5) and relates to the improper purpose for which a document-making implement is intended 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]