FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 07-30114
Plaintiff-Appellee,
v. D.C. No.
CR 06-0146 EJL
LEONARD HUGH FULLER,
OPINION
Defendant-Appellant.
Appeal from the United States District Court
for the District of Idaho
Edward J. Lodge, District Judge, Presiding
Argued and Submitted
January 9, 2008—Seattle, Washington
Filed July 8, 2008
Before: Andrew J. Kleinfeld, A. Wallace Tashima, and
Richard C. Tallman, Circuit Judges.
Opinion by Judge Tashima
8147
UNITED STATES v. FULLER 8149
COUNSEL
Tracy A. Staab, Assistant Federal Defender, Spokane, Wash-
ington, for the defendant-appellant.
Nancy D. Cook, Assistant United States Attorney, Coeur
d’Alene, Idaho, for the plaintiff-appellee.
OPINION
TASHIMA, Circuit Judge:
Defendant-appellant Leonard Fuller was convicted of pos-
session of an identification document that appears to be made
8150 UNITED STATES v. FULLER
by or under the authority of the United States which is stolen
or produced without lawful authority, in violation of 18
U.S.C. § 1028(a)(6). On this appeal, we must decide whether,
in a prosecution under § 1028(a)(6), the government must
prove that the identification document in question appeared to
be issued by a real agency of the United States. We hold that
the government does not; consequently, we affirm Fuller’s
conviction.
JURISDICTION
The district court had jurisdiction pursuant to 18 U.S.C.
§ 3231, and we have jurisdiction pursuant to 28 U.S.C.
§ 1291.
BACKGROUND
The parties do not dispute the facts. Fuller, on his way to
Canada, stopped at the Eastport, Idaho, Port of Entry. Fuller
told the United States Customs and Border Protection
(“CBP”) officers that he was an off-duty law enforcement
officer and asked whether he could store his weapon at the
Port of Entry while he was in Canada. Because Canada for-
bids weapons from entering its country, the Port of Entry had
a practice of storing guns owned by law enforcement officers
who were entering Canada.
Before agreeing to store Fuller’s weapon, CBP officers
asked to view Fuller’s law enforcement credentials, and Fuller
obliged. His credentials consisted of a leather wallet (to which
was affixed a metal badge in the shape of a star embossed
with an eagle and enclosed within a circle carrying the words
“Special Response Agent”) and an identification card in the
wallet. The front of the identification card carried the head-
line, “United States Special Response Department Anti-
Terrorism Unit.” The same eagle seal found on the metal star
appears on the left side of the identification card. The middle
of the card contains the name “L. Fuller” on one line and
UNITED STATES v. FULLER 8151
“Commander” on the next line below. A photo of Fuller
appears on the right side of the card.1
Because CBP officers had never seen similar credentials,
they were suspicious and photocopied it and Fuller’s driver’s
license for a follow-up investigation into the authenticity of
the credentials. One of the officers asked Fuller what depart-
ment the Special Response Department was a part of and Ful-
ler responded, “the State Department,” adding that the Special
Response Department might be transferred to a different
department. The CBP officers returned Fuller’s credentials
and driver’s license to him and took custody of his weapon.
Fuller departed, telling the officers that he would return in a
week.
Before Fuller returned, CBP officers contacted the State
Department and learned that Fuller was not an employee of
the State Department and that no “Special Response Depart-
ment” existed within the State Department. When Fuller
returned to Eastport to retrieve his weapon, he was detained
and subsequently indicted for possessing a false identification
document in violation of 18 U.S.C. § 1028(a)(6).
The indictment alleged:
On or about July 12, 2006, within the District of
Idaho, the Defendant, LEONARD HUGH FUL-
LER, did knowingly possess an identification docu-
ment that was or appeared to be an identification
document of the United States, to wit: a United
States Special Response Department Anti-Terrorism
1
The reverse side of the card carries the following oath:
I, acting as an agent of the United States Special Response
Department, promise to uphold the integrity of the Constitution
of the United States. My priority as an agent is to act in bravery
to protect the United States citizens against criminal injustice and
to ensure due processing of our justice system.
8152 UNITED STATES v. FULLER
Unit Special Agent Identification card, in the name
of L. Fuller, Commander, which document was
stolen or produced without lawful authority, know-
ing that such document was stolen or produced with-
out such authority, in violation of Title 18, United
States Code, Section 1028(a)(6).
Prior to trial, Fuller moved to dismiss the Indictment for
failure to allege a necessary element, specifically, that the
identification document “appears to be issued by or under the
authority of the United States.” Fuller argued that this
required the government to prove that the identification docu-
ment purports to be issued from a real agency of the United
States. The district court denied Fuller’s motion to dismiss.
At trial, Fuller requested a jury instruction requiring the
jury to find beyond a reasonable doubt that the identification
document at issue purported to be from a real agency. The
district court noted Fuller’s objection to the jury instruction
that was given, but refused to give his alternative instruction.
Fuller also moved for a judgment of acquittal, arguing that
there was insufficient evidence to prove that the document he
possessed appeared to be “made or issued under the authority
of the United States . . . in other words a ‘real government
agency’ not one that a person made up.’ ” According to Ful-
ler, because “there is no evidence that the ‘United States Spe-
cial Response Department Anti-Terrorism Unit’ has at any
time ever been a real agency[,] [t]he identification document
in this case does not violate the statute of Indictment, and [an
acquittal] is proper[.]”
The jury found Fuller guilty and the district court denied
his renewed motion for judgment of acquittal. Fuller was
thereafter sentenced and filed a timely notice of appeal.
UNITED STATES v. FULLER 8153
STANDARD OF REVIEW
We review de novo the denial of a motion to dismiss an
indictment based on an interpretation of a federal statute.
United States v. Hermoso-Garcia, 413 F.3d 1085, 1088 (9th
Cir. 2005). We also review de novo whether a jury instruction
misstates elements of a statutory crime. United States v. Phil-
lips, 367 F.3d 846, 854 (9th Cir. 2004); United States v.
Knapp, 120 F.3d 928, 930 (9th Cir. 1997).2 Fuller’s suffi-
ciency of the evidence challenge is also reviewed de novo
because “although [Fuller] frames his argument in terms of
sufficiency of evidence, the real issue turns on interpretation
of the statute[.]” United States v. Smith, 795 F.2d 841, 845
(9th Cir. 1986).
ANALYSIS
[1] Fuller argues that the indictment and jury instruction
were defective because they did not include the element that
the identification document purport to be from a real agency,
2
The government contends that Fuller failed to object to the district
court’s jury instruction and, therefore, that we should review the instruc-
tion only for plain error. See United States v. Perez, 116 F.3d 840, 846
(9th Cir. 1997) (en banc). Assuming arguendo that Fuller failed to object
with the required specificity, we “recognize ‘a sole exception to the
requirement of a formal, timely, and distinctly stated objection’ when a
proper objection would be a ‘pointless formality.’ ” United States v.
Klinger, 128 F.3d 705, 710 (9th Cir. 1997) (quoting United States v. Kessi,
868 F.2d 1097, 1102 (9th Cir. 1989)). “A proper objection would be a
‘pointless formality’ if: (1) ‘throughout the trial the party argued the dis-
puted matter with the court’; (2) ‘it is clear from the record that the court
knew the party’s grounds for disagreement with the instruction’; and (3)
the party proposed an alternate instruction.” Id. (quoting Kessi, 868 F.2d
at 1102). Here, (1) Fuller disputed the elements of the offense repeatedly
throughout the trial, as well as pretrial; (2) the record is clear that the dis-
trict court understood Fuller’s disagreement with the jury instruction; and
(3) Fuller proposed an alternate instruction. We, therefore, reject the gov-
ernment’s argument and review the challenge to the jury instruction de
novo. See id.
8154 UNITED STATES v. FULLER
and he argues that there was insufficient evidence for a ratio-
nal trier of fact to find beyond a reasonable doubt that the
document appeared to be issued by a real agency. Fuller’s
challenges to the indictment, the jury instruction, and the suf-
ficiency of the evidence, therefore, all turn on his legal theory
of § 1028(a)(6), presenting a statutory construction issue of
first impression. See United States v. Cannan, 48 F.3d 954,
962 (6th Cir. 1995) (noting the defendant’s argument that
there was insufficient evidence to convict him under
§ 1028(a)(6) because the document he possessed was from a
defunct law enforcement agency but not deciding whether
§ 1028(a)(6) requires the document to purport to be issued by
a real agency).
“Statutory construction always starts with the language of
the statute itself.” Mitchell v. United States (In re Mitchell),
977 F.2d 1318, 1320 (9th Cir. 1992). In engaging in the tex-
tual analysis of the relevant statutory provisions, we “read the
words of a statute in their context and with a view to their
place in the overall statutory scheme.” Student Loan Fund of
Idaho, Inc. v. U.S. Dep’t of Educ., 272 F.3d 1155, 1165 (9th
Cir. 2001) (internal quotation marks omitted).
A. The Statute
Enacted in 1982 as part of the False Identification Crime
Control Act, 18 U.S.C. § 1028(a)(6) provides:
(a) Whoever, in a circumstance described in sub-
section (c) of this section—
(6) knowingly possesses an identification docu-
ment or authentication feature that is or appears to be
an identification document or authentication feature
of the United States or a sponsoring entity of an
event designated as a special event of national signif-
icance which is stolen or produced without lawful
UNITED STATES v. FULLER 8155
authority knowing that such document or feature was
stolen or produced without such authority;
...
Shall be punished as provided in subsection (b) of
this section.
Subsection (c) provides, in relevant part:
(c) The circumstance referred to in subsection (a)
of this section is that—
(1) the identification document, authentication
feature, or false identification document is or appears
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 or the
document-making implement is designed or suited
for making such an identification document, authen-
tication feature, or false identification document[.]
18 U.S.C. § 1028(d)(3) defines the term “identification docu-
ment”:
(3) the term “identification document” means a
document made or issued by or under the author-
ity of the United States Government, a State, polit-
ical subdivision of a State, a sponsoring entity of
an event designated as a special event of national
significance, a foreign government, political sub-
division of a foreign government, an international
governmental or an international quasi-
governmental organization which, when com-
pleted with information concerning a particular
individual, is of a type intended or commonly
accepted for the purpose of identification of indi-
viduals[.]
8156 UNITED STATES v. FULLER
Fuller advances two arguments why an identification docu-
ment cannot appear to be made by or under the authority of
the United States pursuant to §§ 1028(a)(6) and (d)(3), unless
the document purports to be from a real agency.3
[2] First, Fuller argues that a document cannot appear to be
“issued” from a federal agency unless the document purports
to be from a real federal agency. We are not persuaded. All
sorts of documents can appear to be made by or under the
authority of the United States even though they purport to be
documents produced by an agency that turns out to be non-
existent. An identification badge or card which states that the
holder is a judge on the United States Court of Appeals for the
Twelfth Circuit could appear to be made by or issued under
the authority of the United States even though the Twelfth
Circuit does not exist. Likewise, an identification badge
which states that the holder is the Director of the United
States Federal Service could also appear to be made by or
issued under the authority of the United States even though
the Federal Service is not a real agency. The statute requires
that the document appear to be made by or issued under the
authority of the United States; it does not require that the doc-
ument actually be made by or under the authority of the
United States. Fuller’s identification document states that he
was a Commander in the United States Special Response
Department. Admittedly, Fuller’s identification document is
suspect on its face, but whether the document appears to be
made by or under the authority of the United States is a ques-
tion of fact for the jury to determine.
Next, Fuller argues that even if the statutory language could
be interpreted to proscribe the possession of identification
documents that purport to be issued by a nonexistent govern-
3
We note that in this case we are concerned only with the “of the United
States” disjunctive clause of § 1028(a)(6) and not the disjunctive clause
pertaining to “of . . . a sponsoring entity of an event designated as a special
event of national significance.”
UNITED STATES v. FULLER 8157
mental entity, his construction is nevertheless supported by
the fact that in other subsections of § 1028 Congress specifi-
cally included the alternatives, “identification document” and
“false identification document,” whereas in § 1028(a)(6) Con-
gress specifically omitted the alternative, “false identification
document.” Compare 18 U.S.C. § 1028(a)(6) (proscribing
knowing possession of identification documents that appear to
be made by or under the authority of the United States), with
id. § 1028(a)(1)-(4) (proscribing the knowing production of
identification or false identification documents; proscribing
the knowing transfer of identification or false identification
documents; proscribing possession of identification or false
identification documents with the intent to use unlawfully;
and proscribing the knowing possession of identification or
false identification documents with the intent to defraud the
United States). Section 1028(d)(4) defines a “false identifica-
tion document” as:
[A] document of a type intended or commonly
accepted for the purposes of identification of indi-
viduals that . . . is not issued by or under the author-
ity of a governmental entity or was issued under the
authority of a governmental entity but was subse-
quently altered for purposes of deceit; and . . .
appears to be issued by or under the authority of the
United States Government, a State, a political subdi-
vision of a State, a sponsoring entity of an event des-
ignated by the President as a special event of
national significance, a foreign government, a politi-
cal subdivision of a foreign government, or an inter-
national governmental or quasi-governmental
organization[.]
18 U.S.C. § 1028(d)(4).
Under Fuller’s argument, the omission of “false identifica-
tion document” from § 1028(a)(6) represents Congress’ intent
to proscribe only the knowing possession of documents that
8158 UNITED STATES v. FULLER
appear to be issued from an actual government agency and to
not proscribe the possession of documents not appearing to be
issued by or under the authority of a real government entity.4
Fuller is, of course, correct that “ ‘where Congress includes
particular language in one section of a statute but omits it in
another section of the same Act, it is generally presumed that
Congress acts intentionally and purposely in the disparate
inclusion or exclusion.’ ” Camacho v. Bridgeport Fin., Inc.,
430 F.3d 1078, 1081 (9th Cir. 2005) (quoting Russello v.
United States, 464 U.S. 16, 23 (1983)); see also Silvers v.
Sony Pictures Entm’t, 402 F.3d 881, 885 (9th Cir. 2005) (en
banc) (“The doctrine of expressio unius est exclusio alterius
as applied to statutory interpretation creates a presumption
that when a statute designates certain persons, things, or man-
ners of operation, all omissions should be understood as
exclusions.” (internal quotation marks omitted)). “Understood
as a descriptive generalization about language rather than a
prescriptive rule of construction, the maxim [of expressio
unius] usefully describes a common syntactical implication.”
Longview Fibre Co. v. Rasmussen, 980 F.2d 1307, 1313 (9th
Cir. 1992). It “is a rule of interpretation, not a rule of law,”
4
The Sixth Circuit faced a similar argument in United States v. Gros,
824 F.2d 1487 (6th Cir. 1987). In Gros, the defendant argued that subsec-
tion (a)(6) applied only to identification documents as defined by
§ 1028(d)(3), that is, documents actually issued by or under the authority
of the United States. Id. at 1491. Under that view, mere possession of
stolen authentic documents would be proscribed, but mere possession of
counterfeit documents would not be. Because the documents in that case
were blank counterfeit social security cards, the defendant in Gros argued
that he could not be convicted of violating subsection (a)(6) because the
documents were not issued by or under the authority of the United States.
Id. The Sixth Circuit rejected that argument, concluding “that Congress
could not have intended the first use of the term ‘identification document’
in subsection (6) to be identical to the second phraseology of subsection
(6): ‘identification document of the United States.’ ” Id. at 1491-92. In
essence, the Sixth Circuit held, as we do, that subsection (a)(6) proscribes
possession of identification and false identification documents. Id.
UNITED STATES v. FULLER 8159
which we have explained is “properly applied only when it
makes sense as a matter of legislative purpose.” Id.
[3] Even though its phrasing is “somewhat awkward,” the
purpose of subsection (a)(6) is clear—to proscribe the know-
ing possession of documents that are commonly accepted for
identification purposes and that appear to have been made by
or under the authority of the United States.
[4] We therefore hold that in a prosecution under
§ 1028(a)(6), the government must prove two elements
beyond a reasonable doubt:
1. The defendant knowingly possessed a document
of a type intended or commonly accepted for the
purposes of identification of individuals and that
document be or appear to be made by or under the
authority of the United States; and
2. The defendant knew that that document was
stolen or produced without the authority of the
United States.
With that in mind, we examine Fuller’s challenges to the
indictment, the jury instruction, and the conviction.
B. Indictment, Jury Instruction & Conviction
[5] Fuller challenges the indictment and jury instruction
because they failed to contain the element that “the identifica-
tion document appeared to be issued by or under the authority
of the United States,” which he argues was a necessary ele-
ment of the crime and requires the government to prove that
the document purports to be issued by a real agency. Fuller’s
indictment contained two elements: (1) knowing possession
of documents that were or appeared to be identification docu-
ments of the United States; and (2) that the defendant knew
that the documents were stolen or produced without the
8160 UNITED STATES v. FULLER
authority of the United States. Though the indictment does not
charge that the document “appeared to be made by or under
the authority of the United States,” a document “of the United
States” sufficiently connotes a document “made by or under
the authority of the United States.” Therefore, Fuller’s chal-
lenge to the indictment fails because the indictment “con-
tain[ed] the elements of the offense charged[,] and fairly
inform[ed him] of the charge against which he [had to]
defend, and . . . enable[d] him to plead an acquittal or convic-
tion in bar of future prosecutions for the same offense.”
United States v. Davis, 336 F.3d 920, 922 (9th Cir. 2003).
[6] “[W]hen a jury instruction is challenged on appeal, our
task is to determine whether the trial court’s instruction
relieved the state of this essential burden as to any individual
element of the crime of which the defendant has been convict-
ed.” United States v. Smith, 520 F.3d 1097, 1102 (9th Cir.
2008) (citing Medley v. Runnels, 506 F.3d 857, 864 (9th Cir.
2007) (en banc)). As with the indictment, the language in the
court’s jury instruction—“was or appeared to be an identifica-
tion document of the United States”—sufficiently captures the
element that the identification document be issued by or under
the authority of the United States, and thus the jury instruction
did not relieve the state of its burden as to an element of the
crime.
Finally, Fuller argues that the evidence was insufficient for
a rational trier of fact to find beyond a reasonable doubt that
the document at issue purported to be from an actual agency.
Because that is not an element of the crime with which Fuller
was charged, this challenge fails as well. See Smith, 795 F.2d
at 846.
CONCLUSION
Based on its text and purpose, we conclude that 18 U.S.C.
§ 1028(a)(6) has only two elements: (1) the defendant know-
ingly possessed a document of a type intended or commonly
UNITED STATES v. FULLER 8161
accepted for the purposes of identification of individuals and
that document be or appear to be made by or under the author-
ity of the United States; and (2) the defendant had knowledge
that the document was stolen or produced without the author-
ity of the United States. Because the indictment charged these
elements, the jury instruction properly described these ele-
ments, and a rational trier of fact could find that the govern-
ment proved these elements beyond a reasonable doubt, the
district court did not err in any of its challenged rulings. The
judgment of the district court is
AFFIRMED.