A defendant who ordered from a private company an identification card that appeared to be a government-issued ID and identified him as a diplomat, and who used this ID for several years to identify himself to Transportation Security Administration officers and to Fairfax County court personnel, has his conviction of producing a false identification document in violation of 18 U.S.C. § 1028(a)(1) affirmed by the 4th Circuit.
Here, the government needed to prove beyond a reasonable doubt that defendant knowingly and without lawful authority produced a “false identification document.” A “false identification document” is specifically defined by the statute, 18 U.S.C. § 1028(a)(1), as a document not issued by or under the authority of a governmental entity but that appears to be issued by or under the authority of the U.S. government. Consequently, the U.S. was required to prove beyond a reasonable doubt that defendant knowingly produced an identification document that appeared to be issued by or under the authority of the U.S. government
Given that § 1028 has a scienter requirement specifically requiring the government to prove beyond a reasonable doubt that defendant knew the ID appeared to be issued by or under the authority of the U.S. government, this scienter requirement alone tends to defeat defendant’s vagueness challenge. Further, defendant’s own statements to investigators revealed that he clearly understood that his ID “appeared to be” government-issued. Defendant admitted to investigators that TSA agents, after having viewed his ID, probably assumed he worked for the government. Defendant conceded that his ID “looks official.” We therefore must hold that he has failed to establish that the statute, as applied, is unconstitutionally vague.
The district court did not erroneously instruct the jury to use a “reasonable person standard” to determine whether the ID “appeared to be” government-issued. The district court’s jury instruction properly refined the government’s burden by requiring it to prove beyond a reasonable doubt that defendant knowingly produced an identification document that, although not issued by or under the authority of the U.S. government, nonetheless appeared to a reasonable person of ordinary intelligence to be issued by or under the authority of the U.S. government. We find no merit in defendant’s argument that the district court’s “reasonable person” standard diminished the mens rea requirement of “knowingly” under 18 U.S.C. § 1028(a)(1).
Further, the government produced sufficient evidence that defendant’s ID appeared to be government-issued, that defendant produced the ID, and that venue was proper, such that the district court properly denied defendant’s motion for judgment of acquittal; it was not necessary to charge defendant with “aiding and abetting” in violation of 18 U.S.C. § 2(b).
U.S. v. Jaensch (Wynn) No. 10-5013, Dec. 29, 2011; USDC at Alexandria, Va. (Ellis) Alan J. Cilman for appellant; Gregory P. Bailey, AUSA, for appellee. VLW 011-2-199, 19 pp.