1024

Fraudulent Production, Use or Trafficking in Counterfeit or Unauthorized Access Devices—18 U.S.C. § 1029(a)(1-4)

The access device fraud provisions enacted under the Credit Card Fraud 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 upon the older, limited provisions at 15 U.S.C. § 1644 (fraudulent use of credit cards) and 15 U.S.C. § 1693n (fraudulent use of debit instruments). Most significantly, the provisions at 18 U.S.C. § 1029, in comparison with those of Title 15, broaden the definitions of credit card and debit instrument to any "access device," including an account number; increase the maximum penalties of incarceration and fines; and provide a substantial repeat-offender penalty. Congress passed this legislation to give Federal prosecutors a broad 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 activities of major offenders. Aggregation is allowed to reach the jurisdictional threshold amount. See United States v. Picquet, 963 F.2d 54 (5th Cir. 1992), cert. denied, 506 U.S. 902 (1992) (sales taxes were includable when determining aggregate value of goods and services illegally obtained); United States v. Ryan, 894 F.2d 355, 357 (10th Cir. 1990) (allowed aggregation among 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 (5th 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. 1985); United States v. Mikelberg, 517 F.2d 246, 251-52 (5th Cir. 1975), cert. denied, 424 U.S. 909 (1976); but see United States v. Russell, 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 card fraud will continue to be handled by state and local law enforcement authorities. NOTE: All 18 U.S.C. § 1029(a)(1)-(7) offenses must "affect interstate or foreign commerce." See United States v. Scartz, 838 F.2d 876, 879 (6th Cir.), cert. denied, 488 U.S. 923 (1988) (because banking channels were used for gaining authorization approval of the charges on the cards, interstate commerce was affected); United States v. Lee, 818 F.2d 302, 305 (4th Cir. 1987) (interstate telephone call by bank manager to credit card authorization center concerning defendant's attempt to secure cash advance on credit card was sufficient to prove effect on interstate commerce). Legislative History Pertinent legislative history may be found in a report which accompanied H.R. 5616, proposed legislation that preceded the enactment of, but 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 Device and Computer Fraud and Abuse Act of 1984, H.R. Rep. No. 894, 98th Cong., 2d Sess. (1984). The legislative history defines the terms "knowing state of mind" and "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 concept 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 Cir.), 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 a criminal or an organized crime ring that traffics in fraudulent access devices. Situations in which a valid card owner knowingly uses an expired or revoked card should remain under the jurisdiction of state and local authorities or be handled through the civil actions available to the credit card companies. [cited in USAM 9-49.000]