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18 U.S.C. § 1028 – Fraud and related activity in connection with identification documents, authentication features, and information

Code Section and Elements

18 U.S.C. § 1028(a) contains the federal prohibition on the possession, use, production, and transfer of false identification documents and authentication features.  The United States Attorney’s Office’s Criminal Resource Manual, available online, identifies ten categories of behavior which constitute violations of §1028:

“A. Producing without lawful authority an identification document or a false identification document (18 U.S.C. § 1028(a)(1));

  1. Transferring an identification document or a false identification document knowing that such document was stolen or produced without lawful authority (18 U.S.C. § 1028(a)(2));
  2. Possessing with intent to use unlawfully five or more identification documents (other than those issued lawfully for the use of the possessor) or false identification documents (18 U.S.C. § 1028(a)(3));
  3. Possessing with intent to transfer unlawfully five or more identification documents (other than those issued lawfully for the use of the possessor) or false identification documents (18 U.S.C. § 1028(a)(3));
  4. Possessing an identification document (other than one issued lawfully for the use of the possessor) or a false identification document with the intent such document be used to defraud the United States (18 U.S.C. § 1028(a)(4));
  5. Possessing an identification document that is an identification document of the United States which is stolen, knowing that such document was stolen (18 U.S.C. § 1028(a)(6));
  6. Possessing an identification document that appears to be an identification document of the United States, which was produced without authority knowing that such document was produced without authority (18 U.S.C. § 1028(a)(6));
  7. Producing, transferring, or possessing a document-making implement with the intent that such document-making implement be used in the production of a false identification document (18 U.S.C. § 1028(a)(5));
  8. Producing, transferring, or possessing a document-making implement with the intent that such document-making implement be used in the production of another document-making implement which will be used in the production of a false identification document (18 U.S.C. § 1028(a)(5)); and
  9. Attempting to do any of the above (18 U.S.C. § 1028(a)).”

As you can see, the statute is comprehensive in its treatment of false identification document conduct.  The mere possession of a stolen U.S. identification document, such as a passport, could constitute a violation.  As you will note in the following section on Penalties, much more severe conduct, such as utilizing false identification documents in the commission of terrorist acts, is also covered by 18 U.S.C. § 1028.

Penalties

18 U.S.C. § 1028(b) details the possible punishments for fraud and related activity in connection with identification documents, authentication features, and information.

A maximum penalty of 15 years’ incarceration, a fine, or both, applies to the following conduct: (a) the production or transfer of an identification document or authentication feature which appears to be a product of the United States, or which is a birth certificate, driver’s license, or personal ID card, (b) the production or transfer of more than five identification documents or authentication features, (c) the production, transfer, or possession of a document-making implement with the purpose of making false IDs, or (d) the transfer, possession, or use of a false ID or authentication feature with the intent to violate federal law, or commit a felony under State law, resulting in a gain to the defendant of $1,000 or more in a 1-year period.

A maximum penalty of 5 years’ incarceration, a fine, or both, applies to the following conduct: (a) the production, transfer, or use of false identification documents or authentication features not covered in the previous paragraph, (b) the possession with intent to use or transfer of five or more identification documents or authentication features, and (c) the conduct described in (d) of the previous paragraph where the gain to the defendant was less than $1,000 in a 1-year period.

A maximum penalty of 20 years’ incarceration, a fine, or both, applies where the false ID conduct was used to facilitate drug trafficking, a crime of violence, or a second offense.

A maximum penalty of 30 years’ incarceration, a fine, or both, applies where the false ID conduct was used to facilitate domestic or international terrorism.

Two final notes: Asset forfeiture may result from a conviction for any of the conduct described in this section.  If the violation of 18 U.S.C. § 1028(a) involves conduct not covered by any of the categories described in this section, the maximum penalty is one year of incarceration, a fine, or both.

Defenses

  1. Lack of federal jurisdiction – §1028 prohibits false ID-related conduct that involves a United States identification document or document-making implement, the intent to defraud the United States, conduct that implicates interstate commerce, or the transportation in the U.S. mail of the identification documents. Accordingly, much, if not most, fake-ID conduct will not give rise to federal jurisdiction. For example, a person under 21 producing a fake California driver’s license and attempting to get into a bar would likely qualify as a state crime, but would not be a federal crime under §1028.
  2. Lack of intent – Depending on which subsection you are accused of violating, your attorney may be able to prove that you did not have the requisite intent to violate §1028. For example, if you are accused of intending to defraud the United States through your possession of a false identification document, you may be able to present evidence that you did not have fraudulent intent.

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Violations of 18 U.S.C. 1028 are complex and fact-specific.  If you, or someone you know, is being investigated or charged with this federal crime, call our experienced Los Angeles fake ID attorneys today for a free phone consultation.

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Eisner Gorin LLP, Los Angeles Federal Criminal Defense Attorneys