8.82 FRAUD IN CONNECTION WITH IDENTIFICATION

DOCUMENTS—TRAFFICKING

(18 U.S.C. § 1028(a)(8))

The defendant is charged in [Count ______ of] the indictment with trafficking in authentication features in violation of Section 1028(a)(8) of Title 18 of the United States Code. In order for the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:

First, the defendant knowingly trafficked in [false] authentication features;

Second, that the [false] authentication features were for use in [false identification documents] [document-making implements] [means of identification]; and

[Third, the authentication feature was or appeared to be issued by or under authority of [the United States] [specify issuing authority].]

or

[Third, the transfer of the [false] authentication feature was in or affected commerce between one state and [an]other state[s], or between a state of the United States and a foreign country.]

or

[Third, in the course of transferring the authentication feature, it was transported in the mail.]

Comment

The first and second elements are drawn from 18 U.S.C. § 1028(a)(8); the alternative third elements are drawn from 18 U.S.C. § 1028(c)(1), (c)(3)(A) and (c)(3)(B).

Section 1028(d) provides definitions for the terms: "authentication feature," "false authentication feature," "false identification document," "document-making implements," "means of identification," "traffic," "issuing authority," and "transfer." The Ninth Circuit has held that a signature qualifies as a "means of identification." United States v. Blixt, 548 F.3d 882, 887 (9th Cir.2008).

Section 1028(b) provides for various enhanced statutory maximum penalties in certain circumstances such as when particular types of identification documents are involved or when their use occurs in connection with certain other criminal conduct. In the event that such enhanced penalties are charged, a special verdict form may need to be submitted to the jury regarding the presence or absence of such facts.