Our circuit has not addressed whether a violation of § 1028(a)(3) must include a reference to the specific law that a defendant's intended conduct would have violated. The Fourth Circuit reversed a defendant's conviction under § 1028(a)(3) because the district court had failed to instruct the jury that her intended conduct must have violated a particular law. United States v. Rohn, 964 F.2d 310, 313-14 (4th Cir. 1992). The Fourth Circuit reasoned that, to sustain a conviction under § 1028(a)(3), "it is necessary that the jury be instructed by the district court that particular conduct would have violated a specific law," and further stated that that requirement "could have been satisfied by, for example, an instruction that presenting a false driver's license to a police officer violates a law of a state in which appellant could be expected to drive."

18 U.S.C. § 1028(a)(1) (c)(3)(A); see also 18 U.S.C. § 1028(a)(2) (criminal defendant must "knowingly transfer . . . a false identification document knowing that such document . . . was stolen or produced without lawful authority"). While Brathwaite relies upon United States v. Rohn, 964 F.2d 310 (4th Cir. 1992), for the proposition his indictment was insufficient for failing to allege the intended unlawful use of the fraudulent driver's licenses, Rohn is inapplicable. In Rohn, this court held that under 18 U.S.C. § 1028(a)(3), the Government must establish that an individual in possession of false identification intends to use the identification in a fraudulent and unlawful manner.

See Final Brief of Appellant at 35. She argues the government was required to demonstrate that one or more of the intended uses was unlawful and to point out what federal, state or local law would be violated through the particular use. Kayode's argument relies on United States v. Rohn, 964 F.2d 310 (4th Cir. 1992). We find Kayode's reliance on Rohn misplaced. As the government correctly points, unlike Rohn — where the sole charge against the defendant was the violation of 18 U.S.C. § 1028(a)(3) and where the jury was not instructed on how the defendant's intended use of the false identifications would violate the law — here Kayode was concurrently charged with, and tried before the jury on, an intended unlawful use of the false identification, namely access device fraud.

See§ 1028(a)(3). Courts also have interpreted this statutory provision to require proof of an intent to use or transfer the identification documents or false identification documents unlawfully. See United States v. Klopf, 423 F.3d 1228, 1236 (11th Cir.2005); United States v. Kayode, 254 F.3d 204, 214 (D.C.Cir.2001); United States v. Rohn, 964 F.2d 310, 313–14 (4th Cir.1992). On appeal, Yeremin argues that the intent to use or transfer unlawfully does not necessarily require fraud or deceit.

See§ 1028(a)(3). Courts also have interpreted this statutory provision to require proof of an intent to use or transfer the identification documents or false identification documents unlawfully. See United States v. Klopf, 423 F.3d 1228, 1236 (11th Cir.2005); United States v. Kayode, 254 F.3d 204, 214 (D.C.Cir.2001); United States v. Rohn, 964 F.2d 310, 313–14 (4th Cir.1992). On appeal, Yeremin argues that the intent to use or transfer unlawfully does not necessarily require fraud or deceit.

The government initially argued that it was sufficient to define "unlawfully" in a general way as "to do something voluntarily which the law forbids." The trial court rejected this argument and chose to follow United States v. Rohn, 964 F.2d 310 (4th Cir. 1992), which concludes that Section 1028(a)(3) mandates that the government establish that the "intended uses or transfers [of the false identification documents] would violate one or more federal, state, or local laws." Id. at 313.

Thomas contends that one of the essential elements for a conviction under 18 U.S.C. § 1028(a)(4) is that the intended conduct must violate a local, state or federal law. He relies upon United States v. Rohn, 964 F.2d 310 (4th Cir. 1992). [3] Thomas's reliance on Rohn is misplaced. Rohn involved a violation of 18 U.S.C. § 1028(a)(3), not section 1028(a)(4) under which Thomas was charged and convicted.

While defendants point out that mere possession of false identification is not covered by the statute, the plaintiffs allege not just possession but use. See, e.g.,United States v. Rohn , 964 F.2d 310, 313 (4th Cir. 1992) (mere possession not criminalized, instead "government is required to establish two things: first, the uses to which appellant intended to put the false identifications; and, second, that those intended uses would violate one or more federal, state, or local laws."). However, to the extent plaintiffs are attempting to state a claim under § 1028(a)(3) for possession and intended use, they fail to do so because that provision requires knowing possession with intent to use unlawfully or transfer unlawfully five or more identification documents.

This Court and the Fourth Circuit have, however, read § 1073 to cover federal defendants. See, e.g., United States v. Rohn, 964 F.2d 310, 312–13 (4th Cir.1992) (recognizing without criticism the district court's jury instruction that a defendant's unauthorized flight with intent to avoid prosecution constituted a violation of federal law under 18 U.S.C. § 1073 where defendant was charged with document fraud under federal statutes); United States v. Davis, 233 Fed.Appx. 292, 294 (4th Cir.2007) (upholding as reasonable a defendant's sentence for multiple federal crimes including violation of 18 U.S.C. § 1073 for conspiracy to commit flight to avoid prosecution); United States v. X, 601 F.Supp. 1039, 1041 (D.Md.1984) (discussing the option of a § 1073 charge against a federal defendant); United States v. Y, 601 F.Supp. 1038, 1039 (D.Md.1983) (same); United States v. Walters, 558 F.Supp. 726, 730 (D.Md.1980) (same). Thus, where there is evidence of flight from prosecution, the government can obtain the type of location data sought here, as his location would then be evidence of a crime.

To support a conviction, extrinsic circumstances must be considered. See United States v. Alejandro, 118 F.3d 1518 (11th Cir. 1997); United States v. Rohn, 964 F.2d 310 (4th Cir. 1992); State v. Lores, 512 N.W.2d 618 (Minn.App. 1994); State v. Esquivel, 71 Wn. App. 868, 863 P.2d 113 (1993). In some instances, these circumstances have related to the defendant's status as indicative of that required intent.