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Effective: November 02, 2002
United States Code Annotated Currentness
Title 18. Crimes and Criminal Procedure (Refs & Annos)
Part I. Crimes (Refs & Annos)
Chapter 47. Fraud and False Statements (Refs & Annos)
§ 1029. Fraud and related activity in connection with access devices
(a) Whoever-(1) knowingly and with intent to defraud produces, uses, or traffics in one or more counterfeit
access devices;
(2) knowingly and with intent to defraud traffics in or uses one or more unauthorized access
devices during any one-year period, and by such conduct obtains anything of value aggregating
$1,000 or more during that period;
(3) knowingly and with intent to defraud possesses fifteen or more devices which are
counterfeit or unauthorized access devices;
(4) knowingly, and with intent to defraud, produces, traffics in, has control or custody of, or
possesses device-making equipment;
(5) knowingly and with intent to defraud effects transactions, with 1 or more access devices
issued to another person or persons, to receive payment or any other thing of value during any
1-year period the aggregate value of which is equal to or greater than $1,000;
(6) without the authorization of the issuer of the access device, knowingly and with intent to
defraud solicits a person for the purpose of-(A) offering an access device; or
(B) selling information regarding or an application to obtain an access device;
(7) knowingly and with intent to defraud uses, produces, traffics in, has control or custody of,
or possesses a telecommunications instrument that has been modified or altered to obtain
unauthorized use of telecommunications services;
(8) knowingly and with intent to defraud uses, produces, traffics in, has control or custody of,
or possesses a scanning receiver;
(9) knowingly uses, produces, traffics in, has control or custody of, or possesses hardware or
software, knowing it has been configured to insert or modify telecommunication identifying
information associated with or contained in a telecommunications instrument so that such
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instrument may be used to obtain telecommunications service without authorization; or
(10) without the authorization of the credit card system member or its agent, knowingly and
with intent to defraud causes or arranges for another person to present to the member or its
agent, for payment, 1 or more evidences or records of transactions made by an access device;
shall, if the offense affects interstate or foreign commerce, be punished as provided in subsection
(c) of this section.
(b)(1) Whoever attempts to commit an offense under subsection (a) of this section shall be
subject to the same penalties as those prescribed for the offense attempted.
(2) Whoever is a party to a conspiracy of two or more persons to commit an offense under
subsection (a) of this section, if any of the parties engages in any conduct in furtherance of such
offense, shall be fined an amount not greater than the amount provided as the maximum fine for
such offense under subsection (c) of this section or imprisoned not longer than one-half the
period provided as the maximum imprisonment for such offense under subsection (c) of this
section, or both.
(c) Penalties.-(1) Generally.--The punishment for an offense under subsection (a) of this section is-(A) in the case of an offense that does not occur after a conviction for another offense under
this section-(i) if the offense is under paragraph (1), (2), (3), (6), (7), or (10) of subsection (a), a fine
under this title or imprisonment for not more than 10 years, or both; and
(ii) if the offense is under paragraph (4), (5), (8), or (9) of subsection (a), a fine under this
title or imprisonment for not more than 15 years, or both;
(B) in the case of an offense that occurs after a conviction for another offense under this
section, a fine under this title or imprisonment for not more than 20 years, or both; and
(C) in either case, forfeiture to the United States of any personal property used or intended to
be used to commit the offense.
(2) Forfeiture procedure.--The forfeiture of property under this section, including any seizure
and disposition of the property and any related administrative and judicial proceeding, shall be
governed by section 413 of the Controlled Substances Act, except for subsection (d) of that
section.
(d) The United States Secret Service shall, in addition to any other agency having such authority,
have the authority to investigate offenses under this section. Such authority of the United States
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Secret Service shall be exercised in accordance with an agreement which shall be entered into by
the Secretary of the Treasury and the Attorney General.
(e) As used in this section-(1) the term "access device" means any card, plate, code, account number, electronic serial
number, mobile identification number, personal identification number, or other
telecommunications service, equipment, or instrument identifier, or other means of account
access that can be used, alone or in conjunction with another access device, to obtain money,
goods, services, or any other thing of value, or that can be used to initiate a transfer of funds
(other than a transfer originated solely by paper instrument);
(2) the term "counterfeit access device" means any access device that is counterfeit, fictitious,
altered, or forged, or an identifiable component of an access device or a counterfeit access
device;
(3) the term "unauthorized access device" means any access device that is lost, stolen, expired,
revoked, canceled, or obtained with intent to defraud;
(4) the term "produce" includes design, alter, authenticate, duplicate, or assemble;
(5) the term "traffic" means transfer, or otherwise dispose of, to another, or obtain control of
with intent to transfer or dispose of;
(6) the term "device-making equipment" means any equipment, mechanism, or impression
designed or primarily used for making an access device or a counterfeit access device;
(7) The term "credit card system member" means a financial institution or other entity that is a
member of a credit card system, including an entity, whether affiliated with or identical to the
credit card issuer, that is the sole member of a credit card system;
(8) the term "scanning receiver" means a device or apparatus that can be used to intercept a
wire or electronic communication in violation of chapter 119 or to intercept an electronic serial
number, mobile identification number, or other identifier of any telecommunications service,
equipment, or instrument;
(9) the term "telecommunications service" has the meaning given such term in section 3 of
title I of the Communications Act of 1934 (47 U.S.C. 153);
(10) the term "facilities-based carrier" means an entity that owns communications transmission
facilities, is responsible for the operation and maintenance of those facilities, and holds an
operating license issued by the Federal Communications Commission under the authority of
title III of the Communications Act of 1934; and
(11) the term "telecommunication identifying information" means electronic serial number or
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any other number or signal that identifies a specific telecommunications instrument or account,
or a specific communication transmitted from a telecommunications instrument.
(f) This section does not prohibit any lawfully authorized investigative, protective, or intelligence
activity of a law enforcement agency of the United States, a State, or a political subdivision of a
State, or of an intelligence agency of the United States, or any activity authorized under chapter
224 of this title. For purposes of this subsection, the term "State" includes a State of the United
States, the District of Columbia, and any commonwealth, territory, or possession of the United
States.
(g)(1) It is not a violation of subsection (a)(9) for an officer, employee, or agent of, or a person
engaged in business with, a facilities-based carrier, to engage in conduct (other than trafficking)
otherwise prohibited by that subsection for the purpose of protecting the property or legal rights
of that carrier, unless such conduct is for the purpose of obtaining telecommunications service
provided by another facilities-based carrier without the authorization of such carrier.
(2) In a prosecution for a violation of subsection (a)(9), (other than a violation consisting of
producing or trafficking) it is an affirmative defense (which the defendant must establish by a
preponderance of the evidence) that the conduct charged was engaged in for research or
development in connection with a lawful purpose.
(h) Any person who, outside the jurisdiction of the United States, engages in any act that, if
committed within the jurisdiction of the United States, would constitute an offense under
subsection (a) or (b) of this section, shall be subject to the fines, penalties, imprisonment, and
forfeiture provided in this title if-(1) the offense involves an access device issued, owned, managed, or controlled by a financial
institution, account issuer, credit card system member, or other entity within the jurisdiction of
the United States; and
(2) the person transports, delivers, conveys, transfers to or through, or otherwise stores, secrets,
or holds within the jurisdiction of the United States, any article used to assist in the
commission of the offense or the proceeds of such offense or property derived therefrom.
CREDIT(S)
(Added Pub.L. 98-473, Title II, § 1602(a), Oct. 12, 1984, 98 Stat. 2183, and amended Pub.L. 99646, § 44(b), Nov. 10, 1986, 100 Stat. 3601; Pub.L. 101-647, Title XII, § 1205(f), Nov. 29,
1990, 104 Stat. 4831; Pub.L. 103- 322, Title XXV, § 250007, Title XXXIII, § 330016(2)(I),
Sept. 13, 1994, 108 Stat. 2087, 2148; Pub.L. 103-414, Title II, § 206, Oct. 25, 1994, 108 Stat.
4291; Pub.L. 104-294, Title VI, § 601(l), Oct. 11, 1996, 110 Stat. 3501; Pub.L. 105-172, § 2(a)
- (d), Apr. 24, 1998, 112 Stat. 53; Pub.L. 107- 56, Title III, § 377, Oct. 26, 2001, 115 Stat. 342;
Pub.L. 107-273, Div. B, Title IV, § 4002(b)(11), Nov. 2, 2002, 116 Stat. 1808.)
HISTORICAL AND STATUTORY NOTES
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Revision Notes and Legislative Reports
1984 Acts. House Report No. 98-1030 and House Conference Report No. 98- 1159, see 1984
U.S. Code Cong. and Adm. News, p. 3182.
1986 Acts. House Report No. 99-797, see 1986 U.S. Code Cong. and Adm. News, p. 6138.
1990 Acts. House Report Nos. 101-681(Parts I and II) and 101-736, Senate Report No. 101-460,
and Statement by President, see 1990 U.S. Code Cong. and Adm. News, p. 6472.
1994 Acts. House Report Nos. 103-324 and 103-489, and House Conference Report No. 103711, see 1994 U.S. Code Cong. and Adm. News, p. 1801.
House Report No. 103-827, see 1994 U.S. Code Cong. and Adm. News, p. 3489.
1996 Acts. House Report No. 104-788, see 1996 U.S. Code Cong. and Adm. News, p. 4021.
2002 Acts. House Conference Report No. 107-685 and Statement by President, see 2002 U.S.
Code Cong. and Adm. News, p. 1120.
References in Text
Section 413 of the Controlled Substance Act, referred to in subsec. (c)(2), is Pub.L. 98-473, Title
II, § 303, Oct. 12, 1984, 98 Stat. 2044, as amended, which was classified to 21 USCA 853.
Section 3 of title I of the Communications Act of 1934, referred to in subsec. (e)(9), is Act June
19, 1934, c. 652, 48 Stat. 1065.
Title III of the Communications Act of 1934, referred to in subsec. (e)(10), is Act June 19, 1934,
c. 652 Title III, 48 Stat. 1081, classified to 47 USCA § 301 et seq..
Amendments
2002 Amendments. Subsec. (c)(1)(A)(ii). Pub.L. 107-273, § 4002(b)(11)(A), substituted "or
(9)" for "or (9),".
Subsec. (e)(8). Pub.L. 107-273, § 4002(b)(11)(B), inserted a semicolon at the end.
2001 Amendments. Subsec. (h). Pub.L. 107-56, § 377, added subsec. (h).
1998 Amendments. Subsec. (a)(8) to (10). Pub.L. 105-172, § 2(a), revised par. (8), redesignated
former par. (9) as (10), and inserted a new par. (9). Prior to revision, par. (8) read: "knowingly
and with intent to defraud uses, produces, traffics in, has control or custody of, or possesses--
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"(A) a scanning receiver; or
"(B) hardware or software used for altering or modifying telecommunications instruments to
obtain unauthorized access to telecommunications services, or".
Subsec. (b)(1). Pub.L. 105-172, § 2(b)(2), struck "punished as provided in subsection (c) of this
section" and inserted "subject to the same penalties as those prescribed for the offense
attempted".
Subsec. (c). Pub.L. 105-172, § 2(b)(1), revised subsec. (c) which formerly read:
punishment for an offense under subsection (a) or (b)(1) of this section is--
"The
"(1) a fine under this title or twice the value obtained by the offense, whichever is greater, or
imprisonment for not more than ten years, or both, in the case of an offense under subsection
(a)(2), (3), (5), (6), (7), (8), or (9) of this section which does not occur after a conviction for
another offense under either such subsection, or an attempt to commit an offense punishable
under this paragraph;
"(2) a fine under this title or twice the value obtained by the offense, whichever is greater, or
imprisonment for not more than fifteen years, or both, in the case of an offense under subsection
(a) (1), (4), (5), (6), (7), or (8) of this section which does not occur after a conviction for another
offense under either such subsection, or an attempt to commit an offense punishable under this
paragraph; and
"(3) a fine under this title or twice the value obtained by the offense, whichever is greater, or
imprisonment for not more than twenty years, or both, in the case of an offense under subsection
(a) of this section which occurs after a conviction for another offense under such subsection, or
an attempt to commit an offense punishable under this paragraph."
Subsec. (e)(6), (7). Pub.L. 105-172, § 2(d)(2)(A), (B), struck out "and" at the end of par. (6) and
substituted a semicolon for the period at the end of par. (7).
Subsec. (e)(8). Pub.L. 105-172, § 2(c), (d)(2)(C), inserted "or to intercept an electronic serial
number, mobile identification number, or other identifier of any telecommunications service,
equipment, or instrument" following "chapter 119" and struck out the period at the end of the
paragraph.
Subsec. (e)(9) to (11). Pub.L. 105-172, § 2(d)(2)(D), added pars. (9), (10), and (11).
Subsec. (g). Pub.L. 105-172, § 2(d)(1), added subsec. (g).
1996 Amendments. Subsec. (a)(5). Pub.L. 104-294, § 601(l)(1)(A), redesignated former par.
(5), relating to telecommunications instruments, as par. (7).
Subsec. (a)(6). Pub.L. 104-294, § 601(l)(1)(A), redesignated former par. (6), relating to
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scanning receivers and hardware or software, as par. (8).
Subsec. (a)(6)(B). Pub.L. 104-294, § 601(l)(1)(C), struck out "or" following "access device;".
Subsec. (a)(7). Pub.L. 104-294, § 601(l)(1)(A), (B), (C), redesignated former par. (5), relating
to telecommunications instruments, as par. (7), and as so redesignated, struck out "or" following
"services;". Former par. (7) was redesignated as par. (9).
Subsec. (a)(8). Pub.L. 104-294, § 601(l)(1)(A), (D), redesignated former par. (6), relating to
scanning receivers and hardware or software, as par. (8), and as so redesignated, inserted "or"
following "services,".
Subsec. (a)(9). Pub.L. 104-294, § 601(l)(1)(B), redesignated former par. (7) as par. (9).
Subsec. (c)(1). Pub.L. 104-294, § 601(l)(3)(A), substituted "(6), (7), (8), or (9)" for "(6), or (7)".
Subsec. (c)(2). Pub.L. 104-294, § 601(l)(3)(B), substituted "(5), (6), (7), or (8)" for "(5), or (6)".
Subsec. (e)(7), (8). Pub.L. 104-294, § 601(l)(2), redesignated the second par. (7), defining
"scanning receiver", as par. (8).
1994 Amendments. Subsec. (a)(5). Pub.L. 103-414, § 206(a), added par. (5) relating to
instruments that have been modified or altered to obtain unauthorized use of telecommunications
services.
Pub.L. 103-322, § 250007(1), added par. (5) relating to transactions involving the use of access
devices issued to persons other than the user.
Subsec. (a)(6). Pub.L. 103-414, § 206(a), added par. (6) relating to scanning receivers or other
hardware or software used to obtain unauthorized access to telecommunications services.
Pub.L. 103-322, § 250007(1), added par. (6) relating to solicitations which offer access devices
or information regarding access devices.
Subsec. (a)(7). Pub.L. 103-322, § 250007(1), added par. (7) relating to the presentation for
payment of evidences of access device transactions resulting from the unauthorized use of credit
card accounts.
Subsec. (c)(1). Pub.L. 103-322, § 330016(2)(I), substituted "a fine under this title or twice the
value obtained by the offense, whichever is greater, or imprisonment" for "a fine of not more
than the greater of $10,000 or twice the value obtained by the offense or imprisonment".
Pub.L. 103-322, § 250007(2), substituted "(a)(2), (3), (5), (6), or (7)" for "(a)(2) or (3)".
Subsec. (c)(2). Pub.L. 103-322, § 330016(2)(I), substituted "a fine under this title or twice the
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value obtained by the offense, whichever is greater, or imprisonment" for "a fine of not more
than the greater of $50,000 or twice the value obtained by the offense or imprisonment".
Pub.L. 103-414, § 206(b), substituted "(a)(1), (4), (5), or (6)" for "(a)(1) or (a)(4)".
Subsec. (c)(3). Pub.L. 103-322, § 330016(2)(I), substituted "a fine under this title or twice the
value obtained by the offense, whichever is greater, or imprisonment" for "a fine of not more
than the greater of $100,000 or twice the value obtained by the offense or imprisonment".
Subsec. (e)(1). Pub.L. 103-414, § 206(c)(1), inserted "electronic serial number, mobile
identification number, personal identification number, or other telecommunications service,
equipment, or instrument identifier,".
Subsec. (e)(7). Pub.L. 103-322, § 250007(3), added par. (7) defining "credit card system
member".
Pub.L. 103-414, § 206(c)(2)-(4), added par. (7) defining "scanning receiver".
1990 Amendments. Subsec. (f). Pub.L. 101-647 inserted provision defining the term "State" for
purposes of this subsection.
1986 Amendments. Subsec. (f). Pub.L. 99-646 substituted "chapter 224 of this title" for "title V
of the Organized Crime Control Act of 1970 (18 U.S.C. note prec. 3481)".
Termination Date of 2001 Amendment
Effective on and after the first day of fiscal year 2005, amendments by Title III (§ § 301 to 377)
of Pub.L. 107-56 shall terminate if Congress enacts a joint resolution to that effect; such
resolution shall be given expedited consideration, see Pub.L. 107-56, Title III, § 303, Oct. 26,
2001, 115 Stat. 298, set out as a note under 31 U.S.C.A. § 5311.
Transfer of Functions
For transfer of the functions, personnel, assets, and obligations of the United States Secret
Service, including the functions of the Secretary of the Treasury relating thereto, to the Secretary
of Homeland Security, and for treatment of related references, see 6 U.S.C.A. § § 381, 551(d),
552(d) and 557, and the Department of Homeland Security Reorganization Plan of November
25, 2002, as modified, set out as a note under 6 U.S.C.A. § 542.
Report to Congress
Section 1603 of Pub.L. 98-473, provided that: "The Attorney General shall report to the
Congress annually, during the first three years following the date of the enactment of this joint
resolution [Oct. 12, 1984], concerning prosecutions under the section of title 18 of the United
States Code [this section] added by this chapter."
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CROSS REFERENCES
Enhanced penalties for telemarketing fraud, see 18 USCA § 2326.
FEDERAL SENTENCING GUIDELINES
See Federal Sentencing Guidelines § 2F1.1, 18 USCA.
LAW REVIEW COMMENTARIES
Computer security and privacy: The third wave of property law. Leslie G. Berkowitz, 33FEB Colo.Law. 57 (2004).
Credit card fraud: The neglected crime. 76 J.Crim.L. & Criminology 746 (1985).
What victims of computer crime should know and do. Stephen Fishbein, 210 N.Y.L.J. 1
(Nov. 12, 1993).
LIBRARY REFERENCES
American Digest System
Fraud
68.
Corpus Juris Secundum
CJS False Pretenses § 35, Unauthorized or Counterfeit Use of Credit Cards and Cellular
Telephones.
CJS Telecommunications §
Authorization.
261.5, Obtaining Telecommunications Services Without
RESEARCH REFERENCES
ALR Library
2006 ALR, Fed. 2nd Series 6, Construction and Application of U.S.S.G. § 2x1.1, Providing
Sentencing Guideline for Conspiracy Not Covered by Specific Offense Guideline.
4 ALR, Fed. 2nd Series 365, Legal and Procedural Issues in Prosecutions Under Federal Statutes
Relating to Offense of Identity Theft.
3 ALR, Fed. 2nd Series 179, When Has Federal Prosecutor Breached Plea Agreement--Promises
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Related to Downward Adjustment of Sentence in Fraud and Threat Cases.
198 ALR, Fed. 575, When Has Federal Prosecutor Breached Plea Agreement-- Promises Related
to Upward Adjustment of Sentence in Fraud and Threat Cases.
186 ALR, Fed. 147, Construction and Application of Federal Domestic Terrorism Sentencing
Enhancement, U.S.S.G. § 3a1.4.
185 ALR, Fed. 493, Construction and Operation of "Willfulness" Requirement of U.S.S.G., §
3c1.1, Pertaining to Obstructing or Impeding the Administration of Justice.
174 ALR, Fed. 101, Validity, Construction, and Application of Computer Fraud and Abuse Act
(18 U.S.C.A. § 1030).
173 ALR, Fed. 613, What Constitutes Violation of § 134 of Consumer Credit Protection Act (15
U.S.C.A. § 1644), Prohibiting Fraudulent Use of Credit Card.
2001 ALR, Fed. 5, What Constitutes Violation of § 134 of Consumer Credit Protection Act (15
U.S.C.A. § 1644), Prohibiting Fraudulent Use of Credit Card.
168 ALR, Fed. 575, What Constitutes "Aggravated Felony" for Which Alien Can be Deported or
Removed Under § 237(A)(2)(A)(iii) of Immigration and Nationality Act (8 U.S.C.A. §
1227(A)(2)(A)(iii)).
118 ALR, Fed. 585, Determination of Loss Caused by Crime Involving Fraud or Deceit, Under
United States Sentencing Guidelines § 2F1.1 (U.S.S.G.).
121 ALR, Fed. 323, Increase in Base Offense Level Under Sentencing Guidelines § 3B1.3
(U.S.S.G. § 3B1.3) for Abuse of Position of Public or Private Trust Significantly Facilitating
Commission or Concealment Of...
115 ALR, Fed. 213, What Constitutes Violation of 18 U.S.C.A. § 1029, Prohibiting Fraud or
Related Activity in Connection With Credit Card or Other Credit Access Device.
101 ALR, Fed. 308, Sufficiency of Federal Trial Court's Compliance With Requirements of
Federal Rules of Criminal Procedure 32(A)(1)(A) and 32(C)(3)(D), that Defendant Has Had
Opportunity to Read and Discuss Presentence Investigation...
100 ALR, Fed. 156, What Constitutes Playing "Mitigating Role" in Offense Allowing Decrease
in Offense Level Under United States Sentencing Guideline § 3B1.2, U.S.S.G.
24 ALR, Fed. 580, Change in Terms or Conditions Under Which Accused in Federal Criminal
Case was Originally Released on Bail as Affecting Surety's Liability on Bail Bond.
21 ALR, Fed. 655, Direct Review by United States Court of Appeals of Duration of Sentence
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Imposed by District Court in Federal Criminal Prosecution, Where Duration Does Not Exceed
Statutorily Authorized Maximum.
4 ALR 6th 1, Validity of Condition of Probation, Supervised Release, or Parole Restricting
Computer Use or Internet Access.
3 ALR 6th 13, Electronic Spoliation of Evidence.
15 ALR 5th 391, Measure and Elements of Restitution to Which Victim is Entitled Under State
Criminal Statute.
51 ALR 4th 971, Criminal Liability for Theft Of, Interference With, or Unauthorized Use Of,
Computer Programs, Files, or Systems.
23 ALR 4th 883, Propriety of Increased Sentence Following Revocation of Probation.
24 ALR 3rd 986, Criminal Liability for Unauthorized Use of Credit Card.
17 ALR 3rd 1181, Comment Note.--Power of Court to Make or Permit Amendment of
Indictment.
113 ALR 1179, What Amounts to Conviction or Satisfies Requirement as to Showing of
Conviction, Within Statute Making Conviction a Ground for Refusing to Grant or for Canceling
License or Special Privilege.
Encyclopedias
53 Am. Jur. Proof of Facts 3d 1, Proof of Abuse, Neglect or Exploitation of Older Persons.
81 Am. Jur. Proof of Facts 3d 113, Identity Theft and Other Misuses of Credit and Debit Cards.
51 Am. Jur. Trials 337, Civil Consequences of Criminal Conduct.
70 Am. Jur. Trials 435, the Defense of a Computer Crime Case.
Am. Jur. 2d Attorneys at Law § 64, Misappropriation of Client's Property.
Am. Jur. 2d Credit Cards and Charge Accounts § 19, Fraud and Related Activity in Connection
With Access Devices.
Am. Jur. 2d Criminal Law § 860, Victim-Related Adjustments.
Am. Jur. 2d Criminal Law § 924, Hearing Under Federal Law.
Am. Jur. 2d Extortion, Blackmail, and Threats § 120, Checklist of Acts Which Constitute
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Racketeering Activity; Federal Law Violations.
Am. Jur. 2d Telecommunications § 192, Fraud in Connection With Scanning Receivers and
Other Access Devices.
Treatises and Practice Aids
Federal Procedure, Lawyers Edition § 22:74, Other Particular Offenses.
Federal Procedure, Lawyers Edition §
Authorized.
22:250, Offenses for Which Interception May be
Federal Procedure, Lawyers Edition § 22:1685, Money Laundering Cases; Fraudulent Use of
Financial Institutions.
Federal Procedure, Lawyers Edition § 22:1689, Telemarketing Fraud.
Securities Crimes App 56, Sentencing Guidelines.
Securities Crimes § 6:30.22, Long Arm Jurisdiction and Asset Seizure.
Wright & Miller: Federal Prac. & Proc. § 487, Elements of Offense.
NOTES OF DECISIONS
Access devices 3
Admissibility of evidence 21
Aggregation of value of goods 15
Cellular telephone cloning 13
Conspiracy 16
Constitutionality 1
Contact between issuer and defrauder 11
Counterfeit access devices 5
Device making equipment 6
Double jeopardy 17
Fifteen or more devices 12
Fraudulent activity prohibited 8
Guidelines 19
Indictment 20
Instructions 23
Intent 10
Interstate commerce 2
Possession 9
Questions of fact 22
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Sentence or punishment 18
Separate offenses 14
Things of value 7
Unauthorized access devices 4
Weight and sufficiency of evidence 24
1. Constitutionality
Imposition of three consecutive 24-month prison term for defendant convicted of two counts of
fraudulent use of unauthorized access devices and one count of interstate transportation of stolen
goods did not implicate defendant's Sixth Amendment right to jury trial, where applicable
statutory maximum for each revocation was 24 months in prison. U.S. v. Dees, C.A.3 (Pa.)
2006, 467 F.3d 847. Jury
34(7)
Criminal fraud statute, prohibiting use of counterfeit and unauthorized "access devices," was not
unconstitutionally vague or overbroad as it applied to defendant's use of stolen credit cards or
forged credit card receipts to obtain unauthorized payments, though definition of "access
devices" had been left open to protect new and vulnerable types of funds transfer systems;
although statute anticipated new forms of "access devices," it offered both adequate warning to
defendant that his conduct was unlawful and adequate guidance to judges and juries. U.S. v.
Lee, C.A.4 (Va.) 1987, 815 F.2d 971. False Pretenses
2
Expedited removal procedure did not violate alien's procedural due process rights, on ground that
he was not granted additional time to submit response to notice of intent to remove him in which
he argued that he was not convicted of an aggravated felony, since he was not prejudiced; Court
of Appeals had previously determined on alien's petition for review of removal order that he was
an aggravated felon, and he had pled guilty to conspiracy to traffic in and use unauthorized
access devices, which was a crime involving fraud in which victim's loss exceeded $10,000 and
for which maximum term of imprisonment was five years. Beshli v. Department of Homeland
Security, E.D.Pa.2003, 272 F.Supp.2d 514. Aliens
54.3(5); Constitutional Law
274.3
2. Interstate commerce
Cellular telephones, cellular phone cloning tools and software, which directly affect use of
cellular phones, and cellular phone identification numbers, which are integral part of use of
cellular phones, are all "instrumentalities of interstate commerce," and thus, no further inquiry is
necessary to determine that their regulation under criminal statute prohibiting fraud and related
activity in connection with access devices is within commerce clause authority, and government
is not required to prove substantial effect on interstate commerce as element of offenses charged
under that statute. U.S. v. Clayton, C.A.9 (Cal.) 1997, 108 F.3d 1114, certiorari denied 118 S.Ct.
233, 522 U.S. 893, 139 L.Ed.2d 165. Commerce
82.6
Statute making it illegal to knowingly and with intent to defraud possess 15 or more counterfeit
or unauthorized access devices if offense affects interstate commerce requires government to
prove only that aggregate possession of 15 or more unauthorized access devices affected
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interstate commerce, not that each of access devices had interstate nexus. U.S. v. Clayton, C.A.9
(Cal.) 1997, 108 F.3d 1114, certiorari denied 118 S.Ct. 233, 522 U.S. 893, 139 L.Ed.2d 165.
False Pretenses
4
Illicit possession of out-of-state credit card account numbers is "offense affecting interstate or
foreign commerce" within meaning of federal statute prohibiting possession of counterfeit credit
cards. U.S. v. Rushdan, C.A.9 (Cal.) 1989, 870 F.2d 1509. Commerce
82.6
Fraudulent credit card transaction affects interstate commerce, for purpose of criminal statute, to
extent that bank channels are used for gaining approval of charges. U.S. v. Scartz, C.A.6 (Ohio)
1988, 838 F.2d 876, certiorari denied 109 S.Ct. 303, 488 U.S. 923, 102 L.Ed.2d 322. Commerce
82.6
Interstate telephone call by bank manager to credit card authorization center concerning
defendant's attempt to secure cash advance on credit card was sufficient in and of itself to prove
element of "effect on interstate commerce" in federal prosecution for use of counterfeit access
device. U.S. v. Lee, C.A.4 (Md.) 1987, 818 F.2d 302. False Pretenses
49(1)
Cloned cellular telephones which were not used to call outside the state were nevertheless part of
interstate commerce, and thus, subject to federal law; telephones themselves were manufactured
in another state, and, more importantly, nature of telephones was that they could be used for
interstate or international connections. U.S. v. Alvelo-Ramos, D.Puerto Rico 1997, 957 F.Supp.
18. Commerce
59
3. Access devices
Defendant's prior conviction for grand theft, premised on use of threats in attempt to
misappropriate saving bonds from two elderly women, provided sufficient basis for upward
departure under Sentencing Guidelines provision governing underrepresentation of criminal
history category and likelihood of recidivism, when sentencing defendant for access device fraud
and identity theft. U.S. v. Morris, C.A.2 (Conn.) 2003, 350 F.3d 32, post-conviction relief
denied 2005 WL 80881. Sentencing And Punishment
830; Sentencing And Punishment
841
Validated airline tickets were "access devices" within meaning of statute prohibiting traffic in or
use of unauthorized access devices; tickets bore account number that, when imprinted upon
ticket stock, along with airline identification code and travel itinerary, accessed services of value
provided under credit relationship between travel agency and airlines. U.S. v. Abozid, C.A.2
(N.Y.) 2001, 257 F.3d 191, certiorari denied 122 S.Ct. 486, 534 U.S. 1005, 151 L.Ed.2d 399.
False Pretenses
7(1)
Term "counterfeit access device," as used in criminal statute proscribing fraudulent use of a
counterfeit access device encompasses otherwise legitimate credit cards acquired through the
submission of false information. U.S. v. Soape, C.A.5 (Tex.) 1999, 169 F.3d 257, certiorari
denied 119 S.Ct. 2353, 527 U.S. 1011, 144 L.Ed.2d 249. False Pretenses
7(1)
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Number of merchant account at bank which was used to process credit card transactions was
"access device," under statute prohibiting fraud through use of one or more access devices, and
count in indictment which charged that defendants attempted to traffic in and use unauthorized
access device, namely, merchant account number, was sufficient to charge violation of statute.
U.S. v. Dabbs, C.A.11 (Fla.) 1998, 134 F.3d 1071, rehearing and suggestion for rehearing en
banc denied 144 F.3d 57. False Pretenses
7(1); False Pretenses
29
Blank credit card possessed by defendant was an "access device" within meaning of statute
prohibiting possession of counterfeit access devices, despite contention that there was no
evidence that card could actually cause a debit to an account or would be so used; defendant
possessed embosser and account numbers, she conspired to possess encoder, and evidence
suggested she was practicing how to emboss account numbers onto blank credit cards, and thus
she clearly had the means available to use blank credit cards "in conjunction with another access
device" to obtain money, goods, or services. U.S. v. Nguyen, C.A.9 (Cal.) 1996, 81 F.3d 912.
False Pretenses
7(1)
Use of "tumbling phones" with falsified electronic serial numbers could not be characterized as
"free riding" by piggybacking onto existing system without actually imposing costs on anyone
and thus fell within meaning of statute prohibiting production of and trafficking in counterfeit
access devices. U.S. v. Bailey, C.A.9 (Cal.) 1994, 41 F.3d 413, certiorari denied 115 S.Ct. 2563,
515 U.S. 1134, 132 L.Ed.2d 815, opinion after remand 116 F.3d 486. False Pretenses
14
"Cloned" satellite television descramblers did not provide unauthorized "means of account
access" within criminal statute prohibiting trafficking, possession, use and manufacture of
"counterfeit access devices," since there was no resulting debit to legitimate subscribers'
accounts, even though operators of satellite television services undoubtedly suffered economic
losses from revenues as result of use of cloned descrambler modules by viewers who would
otherwise have had to subscribe to obtain transmissions. U.S. v. McNutt, C.A.10 (Okla.) 1990,
908 F.2d 561, certiorari denied 111 S.Ct. 955, 498 U.S. 1084, 112 L.Ed.2d 1043. False
Pretenses
7(1)
Long distance telephone service access codes were "access devices," within meaning of statute
making it crime to possess or traffic in counterfeit or unauthorized access devices. U.S. v.
Brewer, C.A.5 (Tex.) 1987, 835 F.2d 550. False Pretenses
7(1)
Restaurant checks with credit card account numbers imprinted on them were "access devices"
within statute proscribing possession of counterfeit or unauthorized access devices with intent to
defraud; there is no requirement that the number be printed on any particular medium and fact
that the numbers were printed on paper did not bring them within the statutory exception for
transfer originated solely by paper instrument; the exception applies to passing bad or forged
checks. U.S. v. Caputo, C.A.2 (N.Y.) 1987, 808 F.2d 963. False Pretenses
7(1)
Cellular telephone used for purpose of "free riding" on telephone system or transferred to another
for that purpose does not constitute an "access device" within statute proscribing fraud in
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18 U.S.C.A. § 1029
connection with access devices, where telephone cannot gain access to identifiable valid
customer or subscriber account, despite contention that calls from such telephone represent direct
accounting loss to the cellular telephone company and that calls may be billed to such company
by long-distance carrier. U.S. v. Brady, D.Utah 1993, 820 F.Supp. 1346, affirmed 13 F.3d 334.
False Pretenses
7(1)
4. Unauthorized access devices
Identity of particular credit cards used was merely a fact used to prove an element of charge of
use of unauthorized access devices with intent to defraud, rather than an element of the offense
itself, and thus, it was not necessary for jury to agree on which credit cards defendant used in
order to convict him of use of unauthorized access devices. U.S. v. Goldstein, C.A.2 (N.Y.)
2006, 442 F.3d 777. False Pretenses
15
Statute proscribing knowingly trafficking in or use of unauthorized access devices with intent to
defraud applied to conduct of defendants who used legitimate credit cards that one defendant
fraudulently obtained from credit card companies by submitting false applications in other
individuals' names, given that statute defined "unauthorized access devices" to include credit
cards obtained with intent to defraud and did not suggest that cards had to have been originally
obtained by rightful cardholder. U.S. v. Akinkoye, C.A.4 (Md.) 1999, 185 F.3d 192, certiorari
denied 120 S.Ct. 1209, 528 U.S. 1177, 145 L.Ed.2d 1111, rehearing denied 120 S.Ct. 1714, 529
U.S. 1084, 146 L.Ed.2d 515, post-conviction relief denied 2002 WL 32596014, appeal dismissed
53 Fed.Appx. 709, 2003 WL 57330. False Pretenses
7(1)
Merchant account numbers used by defendants in furtherance of bank fraud scheme were
"unauthorized" access devices, based on evidence that merchant bank prohibited practice of
factoring, by which business would use third party as conduit for depositing credit card sales,
and that defendants knew of and intentionally violated bank's policy. U.S. v. Dabbs, C.A.11
(Fla.) 1998, 134 F.3d 1071, rehearing and suggestion for rehearing en banc denied 144 F.3d 57.
False Pretenses
7(1)
Court of Appeals's determination that it lacked jurisdiction over alien's petition for review of
final order of removal was based on its determination that alien was an aggravated felon, and that
determination was therefore law of the case with respect to alien's subsequent habeas petition
alleging that his conviction for conspiracy to traffic in and use unauthorized access devices was
not an "aggravated felony" rendering him subject to removal, where determination was necessary
to court's prior jurisdictional finding. Beshli v. Department of Homeland Security, E.D.Pa.2003,
272 F.Supp.2d 514. Courts
99(3)
Cellular telephone account numbers that defendant obtained from cellular service provider, using
various names, and used to incur charges of over $1,000, allegedly with no intention of payment,
constituted "unauthorized access devices" within meaning of access device fraud statute. U.S. v.
Edmonson, S.D.Miss.2001, 175 F.Supp.2d 889, affirmed 57 Fed.Appx. 212, 2003 WL 151206,
certiorari denied 123 S.Ct. 2591, 539 U.S. 934, 156 L.Ed.2d 616. Telecommunications
1067
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5. Counterfeit access devices
Credit cards that defendant acquired by submitting fictitious information were "counterfeit
access devices," and, thus, defendant could be convicted of using counterfeit access devices;
using fictitious information to obtain cards was functionally equivalent to manufacture of
counterfeit device. U.S. v. Brannan, C.A.9 (Cal.) 1990, 898 F.2d 107, certiorari denied 111 S.Ct.
100, 498 U.S. 833, 112 L.Ed.2d 71. False Pretenses
7(1)
Long distance telephone service access codes fabricated by defendant could be "counterfeit,"
within meaning of statute making it crime to possess or traffic in counterfeit access devices, even
though codes matched valid code numbers in telephone company computer. U.S. v. Brewer,
C.A.5 (Tex.) 1987, 835 F.2d 550. False Pretenses
7(1)
6. Device making equipment
Tumbling cellular telephone, which permitted user to gain access to telecommunications services
without paying for such services, was not "device-making equipment" prohibited under statute
preventing sale of equipment for making access devices or counterfeit access devices, as
telephone was designed and primarily used to make calls rather than to make access devices.
U.S. v. Morris, C.A.11 (Fla.) 1996, 81 F.3d 131. False Pretenses
7(1)
7. Things of value
Sales taxes on goods and services obtained with unauthorized access device were includable
when determining aggregate value of goods and services obtained, since sales tax was "thing of
value." U.S. v. Picquet, C.A.5 (La.) 1992, 963 F.2d 54, certiorari denied 113 S.Ct. 290, 506 U.S.
902, 121 L.Ed.2d 215. False Pretenses
11
8. Fraudulent activity prohibited
Mere possession of credit access device completed the crime of fraudulent use of credit access
device; access device did not have to be actually used in order to complete the offense. U.S. v.
Scott, C.A.7 (Ill.) 2001, 250 F.3d 550. False Pretenses
7(1)
It was not unreasonable for Federal Communications Commission (FCC) to deny amateur radio
station operator's renewal application based on his felony conviction for fraudulently using
counterfeit access codes to obtain long distance telephone services, and his misrepresentation
and lack of candor during renewal proceedings; conviction for fraudulent conduct plainly called
into question operator's ability to act in manner consonant with FCC regulations. Schoenbohm
v. F.C.C., C.A.D.C.2000, 204 F.3d 243, 340 U.S.App.D.C. 205, rehearing en banc denied, as
amended, certiorari denied 121 S.Ct. 405, 531 U.S. 968, 148 L.Ed.2d 312. Telecommunications
1094
Specific conduct underlying elements of offense of fraudulent use of unauthorized access devices
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does not include the theft of the credit cards, nor does the offense include as an element a
scheme, conspiracy, or pattern of criminal activity that encompasses such conduct; thus, the loss
to victims of credit card robbery is not caused by the offense of conviction for restitution
purposes under Victim and Witness Protection Act (VWPA). U.S. v. Blake, C.A.4 (N.C.) 1996,
81 F.3d 498. Sentencing And Punishment
2143; False Pretenses
4
Defendant's use of falsified electronic serial numbers for cellular phones allowed fraudulent
access to benefits of account between local and distant carriers and thus violated statute
prohibiting production of and trafficking in counterfeit access devices, even if no individual
customer account was affected. U.S. v. Bailey, C.A.9 (Cal.) 1994, 41 F.3d 413, certiorari denied
115 S.Ct. 2563, 515 U.S. 1134, 132 L.Ed.2d 815, opinion after remand 116 F.3d 486. False
Pretenses
11
Fraudulent use of American Express account numbers, which defendant obtained by
surreptitiously gaining access into American Express computer system, came within statutory
prohibition on use of unauthorized "access device" even though the numbers had not been
assigned to any person; the statutory language "account number, or other means of account
access," applied to the transactions made by defendant. U.S. v. Taylor, C.A.8 (Minn.) 1991, 945
F.2d 1050. False Pretenses
7(1)
Credit card fraud statute did not cover unauthorized use of credit cards as false identification in
connection with frauds upon victims who were neither owners nor issuers of cards. U.S. v.
Blackmon, C.A.2 (N.Y.) 1988, 839 F.2d 900. False Pretenses
7(1)
Statute prohibiting fraudulent use or trafficking in telecommunications instruments that were
modified or altered for the unauthorized use of telecommunications services did not apply to
defendants' sales of altered cellular phones, where phone purchasers paid for their calls to
telecommunications service providers other than provider that initially sold the phones. U.S. v.
Mendez-Carrero, D.Puerto Rico 2002, 196 F.Supp.2d 138. Telecommunications
1067
9. Possession
Defendant could be convicted of unlawful possession of 15 or more unauthorized access devices,
even though defendant did not use at least 15 credit cards at same moment in time; defendant
did not show that he disposed of any of the credit card numbers after his unauthorized use, and
therefore could hardly claim that his possession ended at any specific point. U.S. v. Farkas,
C.A.8 (Minn.) 1991, 935 F.2d 962, 115 A.L.R. Fed. 681, rehearing denied. Criminal Law
29(10)
10. Intent
Evidence was sufficient to establish that defendant had requisite mens rea at the time the
defrauded customers' credit cards were charged, as element of offense of access device fraud;
employee of hotel booking business operated by defendant testified that defendant would
negotiate hotel rates with customers without verifying rates with hotels, and although defendant
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charged customers' credit cards as soon as they called to make a reservation, he did not place
reservation until immediately before customer was to begin hotel stay, defendant often used false
names and directed employees to do the same when talking with customers, both during initial
calls and when customers called with complaints. U.S. v. Goldstein, C.A.2 (N.Y.) 2006, 442
F.3d 777. False Pretenses
49(2)
Statute making it illegal to knowingly and with intent to defraud possess 15 or more counterfeit
or unauthorized access devices if offense effects interstate commerce requires government to
prove only that aggregate possession of 15 or more unauthorized access devices affected
interstate commerce does not require government to prove intent to defraud with respect to each
individual device. U.S. v. Clayton, C.A.9 (Cal.) 1997, 108 F.3d 1114, certiorari denied 118 S.Ct.
233, 522 U.S. 893, 139 L.Ed.2d 165. False Pretenses
5
To convict for use of unauthorized access devices, government must prove that defendant acted
knowingly and with intent to defraud, but proof of such intent may be established with
circumstantial evidence. U.S. v. Ismoila, C.A.5 (Tex.) 1996, 100 F.3d 380, rehearing denied,
certiorari denied 117 S.Ct. 1712, 520 U.S. 1219, 137 L.Ed.2d 836, certiorari denied 117 S.Ct.
1858, 520 U.S. 1247, 137 L.Ed.2d 1060. False Pretenses
5; False Pretenses
49(2)
11. Contact between issuer and defrauder
Statute prohibiting unauthorized use of access device does not require direct contact between the
issuer and the defrauder. U.S. v. Jacobowitz, C.A.2 (N.Y.) 1989, 877 F.2d 162, certiorari denied
110 S.Ct. 186, 493 U.S. 866, 107 L.Ed.2d 141. False Pretenses
7(1)
12. Fifteen or more devices
Statutory prohibition against knowing possession of 15 or more counterfeit or unauthorized
access devices did not permit aggregation of separate possessions of fewer than 15 stolen credit
cards. U.S. v. Russell, C.A.8 (Mo.) 1990, 908 F.2d 405. False Pretenses
20.5
Defendant could be convicted of possessing 15 or more unauthorized long distance telephone
service access codes, even though only five codes possessed by defendant were working;
requiring each code number possessed by defendant to be active as prerequisite to conviction
would serve as disincentive for credit card or long distance telephone companies to immediately
invalidate stolen or lost numbers to protect themselves. U.S. v. Brewer, C.A.5 (Tex.) 1987, 835
F.2d 550. False Pretenses
7(1)
13. Cellular telephone cloning
Defendant's cellular telephone cloning activities, involving use of electronic scanning and
computer programming equipment to erase and reprogram electronic chip containing cellular
phone's electronic serial number and mobile identification number with account number of
another user, so that calls made on modified phone would be charged to other user's account,
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violated statute prohibiting knowing possession, production, use, and trafficking of counterfeit
access devices and access device equipment, even before statute was amended to specifically
address cellular telephone cloning. U.S. v. Watson, C.A.9 (Cal.) 1997, 118 F.3d 1315. False
Pretenses
7(1)
Cloned cellular telephone, i.e., one with identification numbers identical to another existing
legitimate unit, fell within ambit of federal statute governing fraud and related activity in
connection with access devices, in prosecution for violations of statute arising from defendant's
alleged use, possession, and trafficking of cloned cellular telephone; defendant's conduct
involved use of altered telecommunications instrument to obtain access to telecommunications
services for purpose of defrauding carrier, and cellular carriers were damaged since, by cloning
of cellular telephones to enable users to have extension telephone, cellular carriers were
defrauded of activation fee and monthly service fee they charged for each cellular telephone.
U.S. v. Yates, E.D.Ky.1995, 914 F.Supp. 152. Telecommunications
1067
14. Separate offenses
Credit card fraud statute established separate criminal offense for use of each unauthorized
access device for which $1,000 of value was obtained during one-year period, and statute's "one
or more" language covered situations where multiple unauthorized access devices were required
in conjunction with each other to complete fraudulent transaction. U.S. v. Iredia, C.A.5 (Tex.)
1989, 866 F.2d 114, rehearing denied, certiorari denied 109 S.Ct. 3250, 492 U.S. 921, 106
L.Ed.2d 596, rehearing denied 110 S.Ct. 224, 493 U.S. 884, 107 L.Ed.2d 176. False Pretenses
4
Defendant could be convicted of both unauthorized use of a credit card and use of a counterfeit
credit card with respect to use of the same card in the same transaction. U.S. v. Gugino, C.A.2
(N.Y.) 1988, 860 F.2d 546. Criminal Law
29(10)
Defendant alleged to have charged $3,639.93 worth of merchandise on one credit card over a
four-month period and $1,339.52 worth of merchandise on two other credit cards over a separate
two-month period could be charged with two counts of using unauthorized access devices,
though violated statute prohibited one from fraudulently using one or more access devices during
any one-year period, and by such conduct obtaining anything of value aggregating $1,000 or
more during that period; statute's $1,000 value requirement, and not one-year period in which
that requirement had to be met, was key to defining separate offenses under statute. U.S. v.
Newman, D.Nev.1988, 701 F.Supp. 184. Criminal Law
29(5.5)
15. Aggregation of value of goods
Multiple unauthorized credit card transactions, each individually in excess of $1,000, which
occurred in one year period could be prosecuted together in one indictment for unauthorized use
of access devices to obtain money, goods, and services aggregating more than $1,000 in value in
one-year period, even though government could have obtained separate indictments for
individual transactions. U.S. v. Dees, C.A.3 (Pa.) 2000, 215 F.3d 378, certiorari denied 121
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S.Ct. 1120, 531 U.S. 1163, 148 L.Ed.2d 988. Indictment And Information
125(6)
Court did not err in calculating amount of intended loss through use of fake credit cards at
$2,500,000 by adding the number of completed false cards, unembossed cards, signature panels,
other unembossed cards found in safe in hotel where some of defendants were staying and then
multiplying by the $6,900 average amount charged per account during two weeks prior to
defendants' arrest. U.S. v. Wai-Keung, C.A.11 (Fla.) 1997, 115 F.3d 874, rehearing and
suggestion for rehearing en banc denied 127 F.3d 42, certiorari denied 118 S.Ct. 1095, 522 U.S.
1135, 140 L.Ed.2d 150. False Pretenses
54
Evidence that defendant possessed 29 stolen cellular phone identification numbers, and that he
cloned at least two of them, supported inference that defendant was responsible for loss
associated with all 29 stolen numbers found in his possession, for total of $50,982.21, thus
raising offense level by five levels under Sentencing Guidelines. U.S. v. Clayton, C.A.9 (Cal.)
1997, 108 F.3d 1114, certiorari denied 118 S.Ct. 233, 522 U.S. 893, 139 L.Ed.2d 165.
Sentencing And Punishment
736
Amounts obtained with multiple unauthorized access devices could be aggregated when
determining sufficiency of evidence to support conviction for unlawful use of access device to
obtain cash in excess of $1,000. U.S. v. Farkas, C.A.8 (Minn.) 1991, 935 F.2d 962, 115 A.L.R.
Fed. 681, rehearing denied. False Pretenses
20.5
Amounts of value of goods obtained by defendant in different districts could be aggregated to
reach jurisdictional amount for unlawful use of credit cards in interstate commerce to obtain
anything of value aggregating $1,000 or more; it was not necessary that defendant obtain at least
$1,000 worth of value in a particular district in order to be prosecuted in that district. U.S. v.
Ryan, C.A.10 (Kan.) 1990, 894 F.2d 355. False Pretenses
20.5
16. Conspiracy
Defendant's conviction for conspiracy based on role in credit card fraud scheme was supported
by coconspirator's statements to undercover officer that defendant would bring fake credit cards
and repeated reference to persons who would participate in fraud as "we" and evidence that
defendant engaged in countersurveillance by looking into vehicles and looking at people while
coconspirators discussed scheme with undercover officers and that defendant negotiated
specifics of intended transaction with undercover officer. U.S. v. Alonso, C.A.9 (Nev.) 1995, 48
F.3d 1536. Conspiracy
47(4)
Defendant who pleaded guilty to four counts of access-device fraud could be convicted on all
four counts, despite contention that counts alleging possession of more than 15 access devices
and possession of device-making equipment were properly charged only against his partner
because defendant himself only possessed single access device, inasmuch as defendant admitted
all elements essential to offenses when he pleaded guilty thereto, and also subjected himself to
vicarious liability for his partner's possession of additional devices within foreseeable scope of
conspiracy when he collaborated with partner in credit-card scam. U.S. v. Madrane, C.A.7 (Ill.)
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2003, 70 Fed.Appx. 367, 2003 WL 21489713, Unreported. Conspiracy
41
17. Double jeopardy
Double jeopardy clause did not bar second prosecution for offense, conspiracy to traffic in
unauthorized access devices, alleged in count one of original indictment, where defendant's
conviction on that count was reversed on appeal because the count was defectively pleaded, in
that it failed to allege an effect on interstate or foreign commerce; defect in indictment did not
relate to sufficiency of the evidence, but rather to manner in which defendant was charged. U.S.
v. Akpi, C.A.4 (Md.) 1994, 26 F.3d 24. Double Jeopardy
108
18. Sentence or punishment
Restitution ordering defendant to pay $42,545.72 deriving from fraudulent use of credit cards
were mandated for defendant convicted of possession of unauthorized access devices with intent
to defraud. U.S. v. Oladimeji, C.A.2 (N.Y.) 2006, 463 F.3d 152. Sentencing And Punishment
2148
District court could aggregate credit limits of all counterfeit or altered credit cards in defendants'
possession to reach the amount of loss for guideline sentencing purposes, when sentencing
defendants for using altered or counterfeit access devices, absent evidence at sentencing that
defendants did not intend to use maximum credit limit of the cards. U.S. v. Lin, C.A.10 (Okla.)
2005, 410 F.3d 1187. Sentencing And Punishment
736
Defendant, whose position as a home health aide gave her continuous access to the homes of her
elderly and mentally disabled victims, and relatively unsupervised discretion over their daily
care, qualified for two-level enhancement in her base offense level, due to abuse of position of
trust, when sentencing defendant for access device fraud and identity theft premised on her acts
of obtaining personal information from three patients and using the information to open
unauthorized credit card accounts. U.S. v. Morris, C.A.2 (Conn.) 2003, 350 F.3d 32, postconviction relief denied 2005 WL 80881. Sentencing And Punishment
758
District court at sentencing in federal credit card fraud conspiracy prosecution had sufficient
information to estimate intended loss, and employed reasonable methodology to arrive at
estimate, and thus intended loss controlled over actual loss for purpose of calculating sentence
under Guidelines; total number of counterfeit cards was known but total amount of credit placed
at risk was not, and so court, after finding that defendant intended to use every counterfeit card
he could to maximum extent possible, multiplied average credit limits of cards with known
limits, i.e. recovered cards, by total number of cards involved in conspiracy, rather than
following defendant's proposal for calculating estimated actual loss. U.S. v. Mei, C.A.7 (Ill.)
2003, 315 F.3d 788, certiorari denied 124 S.Ct. 124, 540 U.S. 847, 157 L.Ed.2d 86. Sentencing
And Punishment
736
In sentencing defendant for access device fraud based on his use of fraudulently obtained credit
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cards, trial court was required to determine actual loss to bank that issued cards, which was the
outstanding credit card balance prior to discovery of the offense, not the total amount charged on
cards; therefore, payments by the defendant to bank prior to discovery of offense should not be
included in calculating bank's loss. U.S. v. Allison, C.A.9 (Hawai'i) 1996, 86 F.3d 940.
Sentencing And Punishment
736
Sentence of 36 months imprisonment was not unconstitutionally disproportionate to crime of
access device fraud, where maximum penalty for crime was ten years, defendant was found with
over 52 unauthorized instant cash cards, social security cards, credit cards, and drivers licenses,
had been convicted of similar fraudulent activity, and received a substantial part of his income
from such activity. U.S. v. Morse, C.A.8 (Minn.) 1993, 983 F.2d 851. Criminal Law
54
Even if, as defendant maintained, federal agent told defendant that she would go to jail for three
to five years due to her possession of 50 counterfeit credit cards, no misrepresentation was made
to defendant that could improperly coerce her statement, where maximum jail sentence for
charged offense of possessing credit cards with intent to distribute was in fact ten years'
imprisonment. U.S. v. Ho, W.D.N.Y.1995, 930 F.Supp. 858. Criminal Law
412.1(4)
Disparity between sentence imposed upon defendant convicted of conspiracy and access device
fraud and sentences imposed upon codefendants was not unjustified or proper; presentence
report disclosed circumstances unique to defendant, including prior criminal record and
allegations of defendant's illegal activities while incarcerated. Farmer v. U.S., D.Md.1990, 737
F.Supp. 884. Sentencing And Punishment
56
Four-level enhancement for leadership role in conspiracy to traffic in and use stolen credit cards
was supported by specific factual findings; co-conspirator testified that the conspiracy was run
out of defendant's apartment, that he and his fellow conspirators referred to defendant as
"chairman" or "chief" and that defendant was the highest in the conspiracy's hierarchy. U.S. v.
Ayeki, C.A.2 (Conn.) 2006, 193 Fed.Appx. 82, 2006 WL 2374268, Unreported. Sentencing And
Punishment
976
Defendant who pled guilty to possessing a credit card embosser with the intent to defraud could
not challenge on appeal the restitution order, even if losses stemmed from conduct charged in
indictment to which he did not plead guilty, where defendant stipulated to the amount owed in
his plea agreement. U.S. v. Grant, C.A.7 (Ill.) 2006, 2006 WL 1476138, Unreported. Criminal
Law
1026.10(4)
Defendant was not "in custody," and, consequently, district court did not have subject matter
jurisdiction over defendant's petition to vacate, set aside, or correct his sentence, although
defendant was being incarcerated by Immigration and Naturalization Service (INS) awaiting
deportation; court did not direct or require INS to incarcerate defendant for his violations of
terms of his supervised release after he served his sentence for credit card fraud, and court did
not impose any types of restrictions on defendant that were imposed on individuals on parole or
released on their own recognizance. Adegbuji v. U.S., S.D.N.Y.2003, 2003 WL 21961122,
Unreported. Criminal Law
1447
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18 U.S.C.A. § 1029
19. Guidelines
The Sentencing Guideline providing for an increase if an offense involved the production or
trafficking of any unauthorized access device or counterfeit access device applies to offenders
whose offense involves credit card trafficking whether or not that offense would also qualify as a
violation of the federal trafficking law. U.S. v. Alli, C.A.1 (R.I.) 2006, 444 F.3d 34. Sentencing
And Punishment
694
Departure from the Guidelines range of 33 to 41 months upward to 60 months was reasonable for
defendant convicted of two counts of credit card fraud; following factors were present:
likelihood of recidivism, prior similar adult conduct not resulting in criminal convictions, and
need to isolate defendant from community to prevent further crimes. U.S. v. Christoph, C.A.6
(Ohio) 1990, 904 F.2d 1036, certiorari denied 111 S.Ct. 713, 498 U.S. 1041, 112 L.Ed.2d 702.
Sentencing And Punishment
834; Sentencing And Punishment
830; False Pretenses
54
20. Indictment
Count of indictment charging that defendant unlawfully used two checking accounts to obtain
funds aggregating more than $1000 by depositing or passing counterfeit checks did not allege
any conduct within ambit of statute proscribing trafficking in or using unauthorized access
device, even though defendant was in possession of account numbers which could have been
used, in conjunction with other codes, to obtain access to those accounts. U.S. v. Hughey, C.A.5
(Tex.) 1998, 147 F.3d 423, certiorari denied 119 S.Ct. 569, 525 U.S. 1030, 142 L.Ed.2d 474.
False Pretenses
26
Count of indictment which alleged that defendant knowingly and with intent to defraud
possessed 15 unauthorized access devices, including credit cards and others, adequately
informed defendant of charge against him of possession of stolen credit cards; indictment
specifically cited provision of statute which requires that offense affect interstate or foreign
commerce, and district court properly instructed jury on all elements of crime, including element
that crime affect interstate commerce. U.S. v. Bolton, C.A.10 (Kan.) 1995, 68 F.3d 396,
certiorari denied 116 S.Ct. 966, 516 U.S. 1137, 133 L.Ed.2d 887. Indictment And Information
108
Indictment charging defendant with conspiracy to traffic and use unauthorized access devices
was sufficient, where indictment closely tracked language of statute, named co-conspirators,
outlined how conspiracy to obtain unauthorized cash advances using stolen credit cards
functioned, explained defendant's role in conspiracy, and listed six overt acts that co-conspirators
allegedly performed in furtherance of conspiracy. U.S. v. Ayeki, D.Conn.2003, 289 F.Supp.2d
183. Indictment And Information
110(10)
Indictment that charged defendant with credit card fraud was not duplicitous, even though it
charged defendant with use of same unauthorized credit card at two separate retail stores, where
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two acts charged were part of single scheme to defraud in that they involved same two persons,
same credit card, occurred back-to-back on same day, defendant allegedly urged sales clerk at
second store to approve purchase because first store had just done so, and failure to charge credit
card uses as separate offenses did not prejudice defendant since defendant could request bill of
particulars and jury instruction to make findings as to each act charged. U.S. v. Brewer,
S.D.N.Y.1991, 768 F.Supp. 104. Indictment And Information
125(6)
Defendant's plea of guilty to possessing a credit card embosser with the intent to defraud was
knowing and voluntary, and thus defendant was precluded from challenging indictment. U.S. v.
Grant, C.A.7 (Ill.) 2006, 2006 WL 1476138, Unreported. Criminal Law
273.4(4)
21. Admissibility of evidence
Testimony of credit card holder's brother that he had custody of card while cardholder was out of
country, that he was in position to know of authorized uses of card, and that he did not know of
any authorization given to defendant, was relevant to issue of authorization in prosecution of
defendant for fraudulent use of credit card. U.S. v. Momeni, C.A.9 (Hawai'i) 1993, 991 F.2d
493, certiorari denied 114 S.Ct. 280, 510 U.S. 903, 126 L.Ed.2d 230. False Pretenses
44
Photographic array used for out-of-court identification of defendant charged with credit card
fraud was not unduly suggestive where six photographs were used, all subjects were black males
of approximately same age with short hair and mustaches, defendant's photo contained no
unusual or distinctive features, no names, dates, or suggestive markings appeared under any of
photos, and there was no allegation that array was tainted by suggestive comments from officer.
U.S. v. Brewer, S.D.N.Y.1991, 768 F.Supp. 104. Criminal Law
339.7(4)
22. Questions of fact
Evidence presented jury question as to whether defendant was guilty, either as aider and abettor
or as principal, of bank fraud and access device fraud; with respect to direct use of access
device, at least one automatic teller machine (ATM) photograph showed defendant in driver's
seat of vehicle parked at drive-through ATM, and defendant was pictured with codefendant as
another card was being used, which suggested that he knew of and did nothing to prevent the
crime. U.S. v. Fadayini, C.A.D.C.1994, 28 F.3d 1236, 307 U.S.App.D.C. 369, rehearing denied.
Banks And Banking
509.25; False Pretenses
51
23. Instructions
In prosecution for access device fraud, jury instructions as a whole appropriately interpreted law
regarding good faith defense; although instruction that good faith defense required that defendant
took reasonable steps to check out his belief that he was authorized to use the access devices
evoked objectivity requirement, next sentence in instruction contained specific directive that
defendant had no burden to prove his good faith, and jury was also instructed that it could not
convict defendant unless government proved beyond reasonable doubt that his conduct was
calculated to deceive and that he intended to cause loss. U.S. v. Goldstein, C.A.2 (N.Y.) 2006,
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442 F.3d 777. Criminal Law
772(6)
Defendant charged with possession of cloned cellular phones, cloning equipment, and
unauthorized cellular phone identification numbers was not entitled to instruction emphasizing
that intent to defraud was necessary element of offenses, as instructions given already listed
fraud as element of offense. U.S. v. Clayton, C.A.9 (Cal.) 1997, 108 F.3d 1114, certiorari denied
118 S.Ct. 233, 522 U.S. 893, 139 L.Ed.2d 165. Criminal Law
829(3)
24. Weight and sufficiency of evidence
Evidence that victims suffered loss at time their credit cards were charged was sufficient to
support conviction for access device fraud; although victims ultimately suffered no financial loss
because they were reimbursed by their credit card companies, victims testified that defendant
caused their credit cards to be charged when they contacted his hotel booking business to make
hotel reservations, that the purported reservations for which their cards were charged did not
exist, and that defendant did not refund their money. U.S. v. Goldstein, C.A.2 (N.Y.) 2006, 442
F.3d 777. False Pretenses
49(1)
Evidence that defendants possessed 14 "cloned" cellular telephones programmed to charge
unauthorized calls to subscribers' accounts and four unprogrammed numerical combinations
corresponding to additional accounts, and that cloning equipment and processes were not
particularly complex or inaccessible under the circumstances was sufficient to support
convictions for possessing and conspiring to possess, with intent to defraud, 15 or more
unauthorized telecommunications access devices, even absent proof of cloning implements in
defendants' immediate possession. U.S. v. Sepulveda, C.A.11 (Fla.) 1997, 115 F.3d 882.
Conspiracy
47(4); False Pretenses
49(1)
Evidence was sufficient to establish that credit cards used by defendant were "access devices,"
that she used cards, and that her use of cards affected interstate commerce to support her
conviction for offense of using unauthorized access devices, where she submitted specific credit
card records of purchases on cards totalling $3,362.12 on insurance claim to corroborate
information on value of items allegedly taken in burglary of her home, and she made regular
purchases from business using both cards. U.S. v. Goodchild, C.A.1 (N.H.) 1994, 25 F.3d 55.
False Pretenses
49(1)
Evidence was sufficient to support finding that defendant had obtained credit cards after they had
expired on her father's death, that she used them for her own benefit knowingly with intent to
defraud, and that she used cards to obtain goods of value aggregating more than $1,000 during
one year period; her intent to defraud was established in part through evidence that she called
credit card company to request card on her father's credit accounts without mentioning her
father's death, and that she proceeded to use cards after being told that credit card company
required power of attorney authorizing her to use accounts. U.S. v. Goodchild, C.A.1 (N.H.)
1994, 25 F.3d 55. False Pretenses
49(1)
Despite lack of eyewitness identification of defendant, evidence was sufficient to support
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defendant's conviction for fraud for his use of credit cards not owned by him to pay for hotel and
other expenses; perpetrator gave same fictitious name and/or telephone number, rounded tip on
credit vouchers in same manner, purchased jewelry from hotel shop and charged it to room and
left prior to scheduled end of stay without checking out, as defendant had in similar crimes for
which he had been convicted after being identified by eyewitnesses. U.S. v. Momeni, C.A.9
(Hawai'i) 1993, 991 F.2d 493, certiorari denied 114 S.Ct. 280, 510 U.S. 903, 126 L.Ed.2d 230.
Criminal Law
374; False Pretenses
49(1)
Airline testimony, handwritten travel itineraries, and controlled deliveries of particular tickets
was sufficient to show that defendant used unauthorized credit cards to obtain airline tickets of a
value aggregating more than $1,000 during the year 1988 even though the only information
concerning sale to him of credit card numbers related to 1989. U.S. v. Powell, C.A.10 (Colo.)
1992, 973 F.2d 885, rehearing denied, certiorari denied 113 S.Ct. 1598, 507 U.S. 991, 123
L.Ed.2d 161. False Pretenses
49(1)
Evidence was sufficient to show, in trial for unlawful use of access device to obtain cash in
excess of $1,000, that defendant was involved in credit card fraud scheme, where defendant was
owner of telemarketing companies and the only person with control over bank account, and thus
it was incredible to argue that defendant was not responsible for his employees' actions in
obtaining and illegally using access devices. U.S. v. Farkas, C.A.8 (Minn.) 1991, 935 F.2d 962,
115 A.L.R. Fed. 681, rehearing denied. False Pretenses
49(1)
Jury justifiably concluded that defendant unlawfully possessed at least 15 unauthorized access
devices, where 14 witnesses gave permissible testimony regarding credit card fraud scheme,
Government introduced evidence of credit card debits from expired or invalid credit cards, and
there was evidence of abnormally high number of chargebacks in defendant's bank account. U.S.
v. Farkas, C.A.8 (Minn.) 1991, 935 F.2d 962, 115 A.L.R. Fed. 681, rehearing denied. False
Pretenses
49(1)
Evidence supported defendant's convictions for conspiracy to knowingly use unauthorized access
device, and knowingly using and aiding in use of unauthorized access device, both with intent to
defraud and gain property in excess of $1,000; evidence showed that defendant and another used
same credit card, which did not belong to either of them, to obtain total of $4,000 in travelers
checks. U.S. v. Edwards, D.Del.1993, 816 F.Supp. 272. Conspiracy
47(3.1); False
Pretenses
49(1)
Finding that hotel operator, charged with access device fraud, possessed requisite fraudulent
intent was supported by evidence that he charged customers' credit cards immediately after initial
reservation request but in fact did not book any reservations until just before customers'
vacations were to begin, used fake names when dealing with customers, and re-charged credit
cards of customers who had received refunds from their credit card companies. U.S. v.
Goldstein, S.D.N.Y.2003, 2003 WL 1961577, Unreported. False Pretenses
49(2)
18 U.S.C.A. § 1029, 18 USCA § 1029
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18 U.S.C.A. § 1029
Current through P.L. 110-17 approved 04-09-07
Copr. © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
END OF DOCUMENT
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