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Unit of Prosecution—Selection of Counts—18 U.S.C. § 1028

Since the gist of the offense is either the production, transfer, or possession, it will often be necessary to combine numerous documents into a single count. Prohibited acts of production and transfer done at separate times and/or places can be treated as separate offenses. Since possession is generally a continuing offense, however, there should generally be only one count for the entire duration of such possession under any one provision of 18 U.S.C. §  1028(a). Production of different types of identification documents should be treated as separate counts, since different tools were necessary to produce the documents. In regard to transfer and possession offenses, such activity may often involve both United States government identification documents and non-federal identification documents. To the extent that separate counts are factually provable, those offenses should be charged in separate counts. However, since the gist of the offense is the transfer or possession, the separate counts will probably be held to merge into the offense carrying the highest penalty permitted under 18 U.S.C. § 1028(b). At times it may be necessary to combine United States government identification documents and non-federal identification documents in the same count to reach the required number of documents (e.g., a violation of 18 U.S.C. § 1028(a)(3)). If such is necessary, you must allege the proper jurisdictional circumstance for the non-federal identification documents. [cited in USAM 9-64.400]