FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

No. 07-30114 Plaintiff-Appellee,

D.C. No.

v.  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
COUNSEL

Tracy A. Staab, Assistant Federal Defender, Spokane, Washington, 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 possession of an identification document that appears to be made

UNITED STATES v. FULLER 8149
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 forbids 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 headline, “United States Special Response Department AntiTerrorism 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

8150 UNITED STATES v. FULLER
“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 department the Special Response Department was a part of and Fuller 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 Department” 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 FULLER, did knowingly possess an identification document that was or appeared to be an identification

document of the United States, to wit: a United

States Special Response Department Anti-Terrorism

1The 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. 

UNITED STATES v. FULLER 8151
Unit Special Agent Identification card, in the name

of L. Fuller, Commander, which document was

stolen or produced without lawful authority, knowing that such document was stolen or produced without 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 document 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 Fuller, because “there is no evidence that the ‘United States Special 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. 

8152 UNITED STATES v. FULLER
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. Phillips, 367 F.3d 846, 854 (9th Cir. 2004); United States v.

Knapp, 120 F.3d 928, 930 (9th Cir. 1997).2 Fuller’s sufficiency 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,

2The government contends that Fuller failed to object to the district

court’s jury instruction and, therefore, that we should review the instruction 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 disputed 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 district court understood Fuller’s disagreement with the jury instruction; and

(3) Fuller proposed an alternate instruction. We, therefore, reject the government’s argument and review the challenge to the jury instruction de

novo. See id.

UNITED STATES v. FULLER 8153
and he argues that there was insufficient evidence for a rational 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 sufficiency 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 textual 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 subsection (c) of this section— 

(6) knowingly possesses an identification document 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 significance which is stolen or produced without lawful

8154 UNITED STATES v. FULLER
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, authentication feature, or false identification document[.] 

18 U.S.C. § 1028(d)(3) defines the term “identification document”: 

(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 quasigovernmental 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[.] 

UNITED STATES v. FULLER 8155
Fuller advances two arguments why an identification document 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 nonexistent. 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 document 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 question 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 govern3We 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.” 

8156 UNITED STATES v. FULLER
mental entity, his construction is nevertheless supported by

the fact that in other subsections of § 1028 Congress specifically included the alternatives, “identification document” and

“false identification document,” whereas in § 1028(a)(6) Congress 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 identification document” as: 

[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 or 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, or an international governmental or quasi-governmental

organization[.] 

18 U.S.C. § 1028(d)(4). 

Under Fuller’s argument, the omission of “false identification document” from § 1028(a)(6) represents Congress’ intent

to proscribe only the knowing possession of documents that

UNITED STATES v. FULLER 8157
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 manners 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,”

4The Sixth Circuit faced a similar argument in United States v. Gros,

824 F.2d 1487 (6th Cir. 1987). In Gros, the defendant argued that subsection (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.

8158 UNITED STATES v. FULLER
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 knowing 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 identification document appeared to be issued by or under the authority

of the United States,” which he argues was a necessary element 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 documents of the United States; and (2) that the defendant knew

that the documents were stolen or produced without the

UNITED STATES v. FULLER 8159
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 challenge to the indictment fails because the indictment “contain[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 conviction 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 convicted.” 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 identification 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 knowingly possessed a document of a type intended or commonly

8160 UNITED STATES v. FULLER
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 had knowledge

that the document was stolen or produced without the authority of the United States. Because the indictment charged these

elements, the jury instruction properly described these elements, and a rational trier of fact could find that the government 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.

UNITED STATES v. FULLER 8161