DE-CODER RINGS (1 of 2) provided a more sophisticated legal analysis of simple charges I first raised on this blog in 2008 when I advised people investigating Barack Obama’s Constitutional eligibility for POTUS to ignore information posted on the web site “Fight the Smears” (“FTS”), which is just a paid political advertisement. Now, by taking the facts available in the public record, including that FTS was copyrighted in 2007, and correlating these public facts to specific provisions of the U.S. Code; I spelled out that FTS was devised to promote and support the candidacy of Barack Obama, first, as the Presidential nominee wannabe of the D Party and then as its nominee; and is now used by the DNC Corporation to sustain the image of its current President (and, perhaps to promote and support his future run for office). But the legal analysis offered in that article still left this question unanswered. Even assuming the COLB posted on FTS was only created as a feature of that on-line advertising campaign; is its appearance on that site proscribed by law?
DECODER-RINGS (2 of 2) addresses this last critical concern.
Here is just a partial index for TITLE 18 > PART I (CRIMES) > CHAPTER 47, FRAUD AND FALSE STATEMENTS. (We will only use Part 1 for this analysis but here is a link to Part II, FYI. PART II—CRIMINAL PROCEDURE (§§ 3001—3771).)
- § 1001. Statements or entries generally
- § 1002. Possession of false papers to defraud United States
- § 1003. Demands against the United States
- § 1004. Certification of checks
- § 1005. Bank entries, reports and transactions
- § 1006. Federal credit institution entries, reports and transactions
- § 1007. Federal Deposit Insurance Corporation transactions
- § 1010. Department of Housing and Urban Development and Federal Housing Administration transactions
- § 1011. Federal land bank mortgage transactions
- § 1012. Department of Housing and Urban Development transactions
- § 1013. Farm loan bonds and credit bank debentures
- § 1014. Loan and credit applications generally; renewals and discounts; crop insurance
- § 1015. Naturalization, citizenship or alien registry
- § 1016. Acknowledgment of appearance or oath
- § 1017. Government seals wrongfully used and instruments wrongfully sealed
- § 1018. Official certificates or writings
- § 1019. Certificates by consular officers
- § 1020. Highway projects
- § 1021. Title records
- § 1022. Delivery of certificate, voucher, receipt for military or naval property
- § 1023. Insufficient delivery of money or property for military or naval service
- § 1024. Purchase or receipt of military, naval, or veteran’s facilities property
- § 1025. False pretenses on high seas and other waters
- § 1026. Compromise, adjustment, or cancellation of farm indebtedness
- § 1027. False statements and concealment of facts in relation to documents required by the Employee Retirement Income Security Act of 1974
- § 1028. Fraud and related activity in connection with identification documents, authentication features, and information
- § 1028A. Aggravated identity theft
- § 1029. Fraud and related activity in connection with access devices
- § 1030. Fraud and related activity in connection with computers
- § 1031. Major fraud against the United States
- § 1032. Concealment of assets from conservator, receiver, or liquidating agent of financial institution
- § 1033. Crimes by or affecting persons engaged in the business of insurance whose activities affect interstate commerce
- § 1034. Civil penalties and injunctions for violations of section 1033
- § 1035. False statements relating to health care matters
- § 1036. Entry by false pretenses to any real property, vessel, or aircraft of the United States or secure area of any airport or seaport
- § 1037. Fraud and related activity in connection with electronic mail
- § 1038. False information and hoaxes
- § 1039. Fraud and related activity in connection with obtaining confidential phone records information of a covered entity
- § 1040. Fraud in connection with major disaster or emergency benefits
But to answer the question concerning the legality of the FTS COLB under the U.S. Code, we will be concentrating primarily on section 1028.
§ 1028. Fraud and related activity in connection with identification documents, authentication features, and information
(a) Whoever, in a circumstance described in subsection (c) of this section—
(1) knowingly and without lawful authority produces an identification document, authentication feature, or a false identification document;
(2) knowingly transfers an identification document, authentication feature, or a false identification document knowing that such document or feature was stolen or produced without lawful authority;
(4) knowingly possesses an identification document (other than one issued lawfully for the use of the possessor), authentication feature, or a false identification document, with the intent such document or feature be used to defraud the United States;
(7) knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person with the intent to commit, or to aid or abet, or in connection with, any unlawful activity that constitutes a violation of Federal law, or that constitutes a felony under any applicable State or local law;
shall be punished as provided in subsection (b) of this section.
(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, authentication feature, or false identification document;
(2) the offense is an offense under subsection (a)(4) of this section; or
(A) the production, transfer, possession, or use prohibited by this section is in or affects interstate or foreign commerce, including the transfer of a document by electronic means; or
(B) the means of identification, identification document, false identification document, or document-making implement is transported in the mail in the course of the production, transfer, possession, or use prohibited by this section.
(d) In this section and section 1028A—
(1) the term “authentication feature” means any hologram, watermark, certification, symbol, code, image, sequence of numbers or letters, or other feature that either individually or in combination with another feature is used by the issuing authority on an identification document, document-making implement, or means of identification to determine if the document is counterfeit, altered, or otherwise falsified;
(2) the term “document-making implement” means any implement, impression, template, computer file, computer disc, electronic device, or computer hardware or software, that is specifically configured or primarily used for making an identification document, a false identification document, or another document-making implement;
(3) the term “identification document” means a document made or issued by or under the authority of the United States Government, a State, political subdivision of a State, a sponsoring entity of an event designated as a special event of national significance, a foreign government, political subdivision of a foreign government, an international governmental or an international quasi-governmental 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
(4) the term “false identification document” means a document of a type intended or commonly accepted for the purposes of identification of individuals that—
(A) is not issued by or under the authority of a governmental entity or was issued under the authority of a governmental entity but was subsequently altered for purposes of deceit; and
(B) 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, or an international governmental or quasi-governmental organization;
(5) the term “false authentication feature” means an authentication feature that—
(A) is genuine in origin, but, without the authorization of the issuing authority, has been tampered with or altered for purposes of deceit;
(B) is genuine, but has been distributed, or is intended for distribution, without the authorization of the issuing authority and not in connection with a lawfully made identification document, document-making implement, or means of identification to which such authentication feature is intended to be affixed or embedded by the respective issuing authority; or
(C) appears to be genuine, but is not;
(6) the term “issuing authority”—
(A) means any governmental entity or agency that is authorized to issue identification documents, means of identification, or authentication features; and
(B) includes 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, or an international government or quasi-governmental organization;
(7) the term “means of identification” means any name or number that may be used, alone or in conjunction with any other information, to identify a specific individual, including any—
(A) name, social security number, date of birth, official State or government issued driver’s license or identification number, alien registration number, government passport number, employer or taxpayer identification number;
(C) unique electronic identification number, address, or routing code; or
(D) telecommunication identifying information or access device (as defined in section 1029 (e));
(9) the term “produce” includes alter, authenticate, or assemble;
(10) the term “transfer” includes selecting an identification document, false identification document, or document-making implement and placing or directing the placement of such identification document, false identification document, or document-making implement on an online location where it is available to others;
(11) the term “State” includes any State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, and any other commonwealth, possession, or territory of the United States; and
(12) the term “traffic” means—
(A) to transport, transfer, or otherwise dispose of, to another, as consideration for anything of value; or
(B) to make or obtain control of with intent to so transport, transfer, or otherwise dispose of.
(f) Attempt and Conspiracy.— Any person who attempts or conspires to commit any offense under this section shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy.
Phew! To re-cap, it’s a crime to undertake the conduct described in (a) under circumstances spelled out in (c). Attempting or conspiring to commit the crimes spelled out in (a) under circumstances spelled out in (c) becomes a crime according to (f). In (d), we find definitions for some of the terms in (a) and (c). But many of the “terms of art” used in 1028, such as “produce,” “transfer,” or “possess” are either defined only in a limited manner or not defined directly in the law. So, we will look at the U.S. Attorneys Criminal Resource Manual. (Note: In the past, I have indicated that when seeking the true meaning of prominent terms within the text of a law, look to the “Definitions” section in that law. Indeed, finding a word in this section tells the reader, this word is important. However, §1028 contains only a limited ‘definitions’ section. So, go to the manual that tells U.S. Attorneys how to practice (investigating and prosecuting) cases brought under this section of the Code.)
1509 Operative Terms—18 U.S.C. § 1028
Section 1028 of Title 18 has three basic operative offenses. They are to “produce,” “transfer,” or “possess.” With the exception of simple possession of a United States identification document which was stolen or produced without lawful authority, which is prohibited by 18 U.S.C. § 1028(a)(6), possession is always coupled with the purpose to “use unlawfully,” “transfer unlawfully” or “use to defraud the United States.” Hence, it is necessary to understand the scope of the words “produce,” “transfer,” “possess,” “use,” and “defraud the United States.”
A. “Produce” is defined in section 1028(d)(2) to include “alter, authenticate, or assemble.” Obviously, since the word “include” is used in the definition, the term is not limited to these three concepts but also encompasses all forms of counterfeiting, forging, making, manufacturing, issuing, and publishing. A government employee whose duty is to simply issue identification documents (i.e., he does not manufacture or assemble the documents) is, by issuing the document, authenticating it. If such an employee were to authenticate such documents without lawful authority, it would constitute an offense under section 1028(a)(1).
B. “Transfer” is not defined in section 1028, but is intended to reach those persons who “traffic” in stolen and false identification. It includes the acts of selling, pledging, distributing, giving, loaning or otherwise transferring. It does not require any exchange of consideration (anything of value) for the transfer. To transfer “unlawfully” means the transfer of an identification document in a manner forbidden by federal, state, or local law.
C. “Possess” is not defined in section 1028 but is to be construed broadly. It includes the concept of “receipt” but is not limited thereto. Constructive possession would also be included.
D. “Use” is not defined in section 1028 but is to be broadly construed and includes presenting, displaying, certifying, or otherwise giving currency to an identification document so that it would be accepted as an identification document in any manner. To use “unlawfully” means that the document was used in a manner that violates a federal, state or local law, or is part of a misrepresentation that violates a law. For example, section 1028(a)(3) would be violated if the possessor intended to use five or more documents to make representations in any matter within the jurisdiction of any department or agency of the United States in violation of 18 U.S.C. § 1001.
E. “Defraud the United States” is not defined in section 1028 but is not intended to be limited to misrepresentations related to financial fraud. It would also include the misrepresentative use of false identification to obstruct functions of the government (e.g., display to a government investigator a false pilot’s license or someone else’s driver’s license for the purpose of trying to deceive or mislead the investigator).
[cited in USAM 9-64.400]
Okay, so assuming the COLB displayed on FTS, the political advertising web site, was knowingly produced, transferred, possessed, and used in relation to the FTS political ad campaign to fool people into believing the state of HI issued a document recording the birth of Barack Obama, is its display on FTS legal under the U.S. Code? Absolutely.
Both the plain language of the statute – under (d)(3), this image of a COLB cannot be considered to be an “identification document” where it was not “made or issued by or under the authority of” “a State, or political subdivision of a State”; but by a candidate seeking public office and then, his political party – and the SCOTUS’ reverence to political speech guaranteed by the First Amendment, recently renewed in Citizens United – “The Government may regulate corporate political speech through disclaimer and disclosure requirements, but it may not suppress that speech altogether” – should convince you why.
But why bother to conduct this extended legal analysis as to the legitimacy of any ‘information’ visible on the image of the COLB posted on the FTS site, when the language therein already plainly warns, (under the laws in the state of HI) “ANY ALTERATIONS INVALIDATE THIS CERTIFICATE“?
In sum, between the clear accreditation in the footer of the FTS internet web site identifying under the U.S. Code, this is a paid political advertisement; recent holdings of the U.S. Supreme Court protecting false political speech; and the obvious redactions on the face of the image of the FTS COLB rendering it invalid as a matter of (HI) law; its appearance as a so-called ‘identification document’ on that site is not illegal, precisely because as a matter of law, it identifies nothing. Indeed, given the patently obvious worthlessness of the posted COLB, it’s as if the site owners have announced to those voters who have expressed concern as to whether Barack Obama is Constitutionally eligible to be the President of the United States: ‘We are banking the political future of the Democratic Party on the fact you are too ignorant to grasp when we insist the “birth certificate” posted on FTS proves, he is, we are not telling the truth.’