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1517

Is In or Affects Interstate or Foreign Commerce -- 18 U.S.C. § 1028

This term, found in 18 U.S.C. § 1028(c)(3), requires that the prohibited production, transfer, or possession have no more than a minimal nexus with interstate or foreign commerce. Scarborough v. United States, 431 U.S. 563, 575 (1977). The prohibited act need not be contemporaneous with the movement in or the effect upon interstate or foreign commerce. Nor is it necessary that the purpose of the prohibited act be to use or affect interstate or foreign commerce. United States v. Daley, 564 F.2d 645, 649 (2d Cir. 1977). For instance, a showing that a false identification document in the possession of the defendant traveled at some time in interstate or foreign commerce would be sufficient. Moreover, a production or transfer of identification documents which are intended to be distributed in interstate or foreign commerce would be covered. This is so because under 1 U.S.C. § 1 "words used in the present tense include the future as well as the present." Hence, the term "affects" includes "will affect." Furthermore, since section 1028 has an attempt provision, the commerce aspect need not be completed in order to vest federal jurisdiction. However, in the absence of evidence showing that interstate or foreign commerce was affected the prosecutor will have to prove there was an intent to do acts which, if completed, would have affected interstate or foreign commerce. Because this is a jurisdictional circumstance, there will not have to be proof that each participant in the scheme was aware of the future effect upon commerce but only that the full extent of the scheme, if successful, would have had such results. See McElroy v. United States, 455 U.S. 642 (1982), as to when interstate commerce begins.

[cited in USAM 9-64.400]