Fraudulent Production, Use or Trafficking in
or Unauthorized Access Devices18 U.S.C. § 1029(a)(1-4)
The access device fraud provisions enacted under the Credit Card
Act of 1984, part of the Comprehensive Crime Control Act of 1984, Pub.L. No.
98-473, 98 Stat. 2183-4 (1984), and codified at 18 U.S.C. § 1029 expand
the older, limited provisions at 15 U.S.C. § 1644 (fraudulent use of
cards) and 15 U.S.C. § 1693n (fraudulent use of debit instruments).
significantly, the provisions at 18 U.S.C. § 1029, in comparison with
of Title 15, broaden the definitions of credit card and debit instrument to
"access device," including an account number; increase the maximum penalties
incarceration and fines; and provide a substantial repeat-offender penalty.|
Congress passed this legislation to give Federal prosecutors a
jurisdictional base to prosecute effectively a variety of credit card fraud
schemes. However, Congress established certain jurisdictional threshold
requirements to ensure that Federal involvement is concentrated on the
of major offenders. Aggregation is allowed to reach the jurisdictional
amount. See United States v. Picquet, 963 F.2d 54 (5th Cir.
cert. denied, 506 U.S. 902 (1992) (sales taxes were includable when
determining aggregate value of goods and services illegally obtained);
States v. Ryan, 894 F.2d 355, 357 (10th Cir. 1990) (allowed aggregation
districts). As such aggregation is also allowed under Title 15, caselaw
regarding § 1029 aggregation has relied on caselaw regarding Title 15
aggregation. See United States v. Iredia, 866 F.2d 114, 120
Cir.), cert. denied, 492 U.S. 921, reh'g denied, 493 U.S. 884
(1989); United States v. Abod, 770 F.2d 1293, 1296-97 (5th Cir.
United States v. Mikelberg, 517 F.2d 246, 251-52 (5th Cir. 1975),
denied, 424 U.S. 909 (1976); but see United States v.
908 F.2d 405 (8th Cir. 1990) (aggregation of possessions is not allowed).
Nevertheless, it is intended that the bulk of the prosecutions for credit
fraud will continue to be handled by state and local law enforcement
NOTE: All 18 U.S.C. § 1029(a)(1)-(7) offenses must "affect interstate
foreign commerce." See United States v. Scartz, 838 F.2d 876,
(6th Cir.), cert. denied, 488 U.S. 923 (1988) (because banking
were used for gaining authorization approval of the charges on the cards,
interstate commerce was affected); United States v. Lee, 818 F.2d
(4th Cir. 1987) (interstate telephone call by bank manager to credit card
authorization center concerning defendant's attempt to secure cash advance
credit card was sufficient to prove effect on interstate commerce).
Pertinent legislative history may be found in a report which
accompanied H.R. 5616, proposed legislation that preceded the enactment of,
was identical to, this statute. It provides a detailed explanation of the
definitions in the statute and emphasizes the intended broad coverage of its
provisions. House Committee on the Judiciary Report on Counterfeit Access
and Computer Fraud and Abuse Act of 1984, H.R. Rep. No. 894, 98th Cong., 2d
The legislative history defines the terms "knowing state of mind"
"with the intent" as used in 18 U.S.C. § 1029(a). See United
States v. Bailey, 444 U.S. 394, 404 (1976). The report discusses the
of "willful blindness" and the proof required for such a defense to succeed.
See United States v. Jewell, 532 F.2d 697, 700 n. 7 (9th
cert. denied, 426 U.S. 951 (1976).
Congress intended that Federal prosecutions for the use of
"unauthorized access devices" be directed particularly to activity involving
criminal or an organized crime ring that traffics in fraudulent access
Situations in which a valid card owner knowingly uses an expired or revoked
should remain under the jurisdiction of state and local authorities or be
through the civil actions available to the credit card companies.
[cited in USAM 9-49.000]