6th Cir. Pattern Crim. Jury Instr. 15.02

(1) Count ___ of the indictment charges the defendant with violating federal law by knowingly possessing, with the intent to use or transfer unlawfully, five or more [identification documents] [authentication features] [false identification documents].

For you to find the defendant guilty of this crime, you must find that the government has proved each and every one of the following elements beyond a reasonable doubt:

(A) First: That the defendant possessed five or more [identification documents] [authentication features] [false identification documents].

(B) Second: That the defendant knowingly possessed the [identification documents] [authentication features] [false identification documents] with intent to use or transfer them unlawfully.

(C) Third: That the defendant possessed the [identification documents] [authentication features] [false identification documents] under the following circumstances [insert at least one from three options below].

(i) [The [identification document] [authentication feature] [false identification document] was or appeared to be issued by or under the authority of the United States or a sponsoring entity of an event designated as a special event of national significance.]

(ii) [The possession was in or affected interstate [foreign] commerce.]

(iii) [The [identification document] [false identification document] was transported in the mail in the course of the prohibited possession.]

(2) Now I will give you more detailed instructions on some of these terms.

(A) [Insert applicable definition of possession from Instructions 2.10, 2.10A, and 2.11 here or as a separate instruction].

(B) The term “[identification document] [authentication feature] [false identification document]” is defined as follows. [Insert definition(s) from three options below as appropriate.]

(i) [The term “identification document” means a document made or issued by or under the authority of

– [the United States Government]

– [a State]

– [a political subdivision of a State]

– [a sponsoring entity of an event designated as a special event of

national significance]

– [a foreign government]

– [a political subdivision of a foreign government]

– [an international governmental organization]

– [an international quasi-government organization]

which, when completed with information concerning a particular individual, is of a type intended or commonly accepted for the purpose of identification of individuals.]

(ii) [The term “authentication feature” means any

– [hologram]

– [watermark]

– [certification symbol]

– [code]

– [image]

– [sequence of numbers or letters]

– [other feature]

that is used by the issuing authority on an

– [identification document]

– [document-making implement]

– [means of identification]

to determine if the document is counterfeit, altered, or otherwise falsified.]

(iii) [The term “false identification document” means a document of a type intended or commonly accepted for the purposes of identification of individuals that

– [is not issued by or under the authority of a governmental entity]

– [was issued under the authority of a governmental entity but was subsequently altered for purposes of deceit]

and appears to be issued by or under the authority of

– [the United States Government]

– [a State]

– [a political subdivision of a State]

– [a sponsoring entity of an event designated by the President as a special event of national significance]

– [a foreign government]

– [a political subdivision of a foreign government]

– [an international governmental organization]

– [an international quasi-governmental organization].]

(C) An act is done “knowingly” if done voluntarily and intentionally, and not because of mistake or accident or other innocent reason.

(D) [The term “transfer” includes selecting an [identification document] [false identification document] [authentication feature] and placing or directing the placement of such document on an online location where it is available to others.]

(E) The phrase “was in or affected interstate [foreign] commerce” means that the prohibited possession had at least a minimal connection with interstate [foreign] commerce. This means that the document’s [feature’s] possession had some effect upon interstate [foreign] commerce. For instance, a showing that a document [feature] at some time traveled or was transferred electronically [across a state line] [in interstate commerce] [in foreign commerce] would be sufficient.

(i) The phrase “interstate commerce” means commerce between any combination of states, territories, and possessions of the United States, including the District of Columbia. [The phrase “foreign commerce” means commerce between any state, territory or possession of the United States and a foreign country.] [The term “commerce” includes, among other things, travel, trade, transportation and communication.]

(ii) Possessing a document [feature] which the defendant intended to be distributed or used in interstate [foreign] commerce would meet this minimal connection requirement. The government is not required to prove that the defendant was aware of a future effect upon interstate [foreign] commerce, but only that the scheme, if completed, would have had such results.

(iii) [The government need not prove that [the prohibited possession was contemporaneous with the movement in or effect upon interstate [foreign] commerce] [the prohibited possession itself affected interstate [foreign] commerce] [the defendant had knowledge of the interstate [foreign] commerce connection].]

(3) If you are convinced that the government has proved all of these elements, say so by returning a guilty verdict on this charge. If you have a reasonable doubt about any one of these elements, then you must find the defendant not guilty of this charge.

Use Note

This instruction does not include language from § 1028(a)(3) that if the prosecution is based on possession of identification documents, the identification documents must be “other than those lawfully for the use of the possessor.” If the prosecution is based on possession of identification documents and the issue of whether they were issued lawfully for the use of the possessor is raised, this phrase should be added to paragraph (1)(A).

In paragraph (1)(C)(ii) and the paragraphs under (2)(E) on the effect on commerce, the instruction presumes that the commerce involved is interstate commerce, and the bracketed term “foreign” should be substituted if warranted by the facts.

The jurisdictional option in paragraph (1)(C)(iii) is not available in prosecutions based on possessing an authentication feature. This is because the statute plainly provides this jurisdictional option for cases based on “identification documents” and “false identification documents,” but omits the term “authentication feature.” See § 1028(c)(3)(B). Under this statutory language, the jurisdictional option in paragraph (1)(C)(iii) is only available for prosecutions based on identification documents and false identification documents.

If multiple options are provided for meeting the jurisdictional element under paragraph (1)(C), the court may want to give a specific unanimity instruction. See the Commentary to Inst. 8.03 Unanimous Verdict.

Paragraph (2)(E)(iii) lists items the government need not prove to establish an effect on commerce and should be used only if relevant.

Subsection 1028(d) provides definitions for many terms beyond those included in the instruction.

Brackets indicate options for the court.

Italics indicate notes to the court.

Committee Commentary Instruction 15.02

(current through May 29, 2026)

Title 18 U.S.C. § 1028(a)(3) provides: “Whoever, in a circumstance described in subsection (c) of this section-- (3) knowingly possesses with intent to use unlawfully or transfer unlawfully five or more identification documents (other than those issued lawfully for the use of the possessor), authentication features, or false identification documents . . . shall be punished . . . .”

The list of elements in paragraph (1) is derived from the statute, § 1028(a)(3) and United States v. Gros, 824 F.2d 1487 (6th Cir. 1987). The specific language in paragraphs 1(A) and 1(B) is based on § 1028(a)(1). The language in paragraph (1)(C) is based on § 1028(c). In Gros, the Sixth Circuit affirmed instructions for a § 1028(a)(3) conviction. The instructions basically provided that the elements were as follows: the prohibited document or feature, the jurisdictional element, the defendant’s possession of five or more prohibited documents or features, and that defendant’s possession of them was knowing and with the intent to use unlawfully. Id. at 1495. These elements appear in paragraph (1) in different order.

The instructions do not include language from § 1028(a)(3) that if the prosecution is based on possession of identification documents, the identification documents must be “other than those lawfully for the use of the possessor.” If the prosecution is based on possession of identification documents and the issue of whether they were issued lawfully for the use of the possessor is raised, the court should add this phrase to paragraph (1)(A).

In the paragraphs under (1)(C), the circumstances listed provide the federal jurisdictional base for the offense. See Gros, 824 F.2d at 1495 (referring to the content of current § 1028(c)(1) and (c)(3)(A) as “jurisdictional requirements”). The three options listed in paragraph (1)(C) are drawn from the options listed in § 1028(c) but include only the options relevant to the specific crime of possessing an identification document or feature under subsection (a)(3). In paragraph (1)(C)(ii), which refers to an effect on commerce, the instruction presumes that the commerce involved is interstate commerce, and the bracketed term “foreign” should be substituted if warranted by the facts. Only one of these circumstances listed in paragraph (1)(C) must be met. See Gros, 824 F.2d at 1494 (approving instructions in § 1028(a)(3) case which required only one jurisdictional requirement from § 1028(c) to be met).

The jurisdictional option in paragraph (1)(C)(iii) is limited in one way that the other jurisdictional options are not and should be used with caution. The option in that paragraph is not available in prosecutions based on possessing an authentication feature. This is because the statute plainly authorizes this jurisdictional option for cases based on “identification documents” and “false identification documents,” but omits the term “authentication feature.” See § 1028(c)(3)(B). Under this statutory language, the jurisdictional option in paragraph (1)(C)(iii) is only available for prosecutions based on identification documents and false identification documents.

The definition in (2)(A) of “possess” is a cross-reference to other pattern instructions which define that term in federal crimes generally based on Supreme Court and Sixth Circuit cases. See Instructions 2.10, 2.10A, and 2.11

The language of paragraph (2)(B) defining the terms “identification document,” “authentication feature,” and “false identification document” is based on subsections 1028(d)(3), (d)(1), and (d)(4), respectively. Some of the options within each definition were bracketed to limit unnecessary words and to allow the court to tailor the instruction to the facts of the case.

The definition of “knowingly” in paragraph (2)(C) is based on United States v. Svoboda, 633 F.3d 479 (6th Cir. 2011), in which the court found no error in the instructions defining “knowingly” in a prosecution for possessing an unlawfully produced identification document under § 1028(a)(6) (see Inst. 15.03). The definition is drawn verbatim from the instruction used in Svoboda, supra at 485.

The definition of “transfer” in paragraph (2)(D) is based on § 1028(d)(10). This subsection defining “transfer” does not mention authentication features, but authentication features are one of the items covered by the crime, see § 1028(a)(3), and are covered in this instruction. The committee assumed that the omission of “authentication feature” from the definition of transfer was inadvertent, so we included the term “authentication feature” in the definition of transfer in paragraph (2)(D) of the instruction.

The definition of “was in or affected interstate commerce” in paragraph (2)(E) is based on the statute, § 1028(c)(3)(A), and the instructions approved in Gros, 824 F.2d at 1494-95. The terms transfer and production were deleted as irrelevant to this instruction on possession. The option of “[across a state line]” was added as a plain-English way to describe a document traveling in interstate commerce, and the instruction substitutes the word “connection” for “nexus.” Generally, duplicative words were omitted, the language was simplified, and the concepts were divided into subparagraphs. The definition presumes that the commerce involved is “interstate” commerce, and the bracketed term “foreign” should be substituted if warranted by the facts. Paragraph (2)(F)(iii) lists items the government need not prove and should be used only if relevant in the case.

The good-faith defense (see Instruction 10.04) is not available to a defendant charged with a violation of § 1028(a)(3) who claims he relied on a legal interpretation of a layman. Svoboda, supra at 484.