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Criminal Resource Manual

1027. Fraudulent Transactions with One or More Access Devices for Payment or Anything of Value totaling $1000 or more During a One-Year Period -- 18 U.S.C. § 1029(a)(5)

This Subsection (a)(5) of 18 U.S.C. § 1029 became effective September 13, 1994, as part of the Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, § 250007, 108 Stat. 1976. This second statutory Subsection (a)(5) provision concerns the fraudulent use of access devices. It removes the many definitional problems and requirements with the term "unauthorized" under 18 U.S.C. § 1029(a)(2). Some courts had found the term "unauthorized" to require that the access device be both obtained and used with intent to defraud. See United States v. Brewer, 835 F.2d 550, 553 (5th Cir. 1987); United States v. Luttrell, 889 F.2d 806 (9th Cir. 1989), vacated in part on other grounds, 923 F.2d 764 (9th Cir. 1991)(en banc), cert. denied, sub nom. Kegley v. United States, 503 U.S. 959 (1992). Under this Subsection (a)(5) of 18 U.S.C. § 1029 the only requirement is that the access device issued to another was used by the defendant with the intent to defraud. [NOTE: For Federal jurisdiction, all 18 U.S.C. § 1029(a)(1)-(7) offenses must "affect interstate or foreign commerce."]

Legislative History

According to the legislative history of this second statutory Subsection (a)(5) of 18 U.S.C. § 1029 at H.R. Rep. 102-242, 102d Cong., 2d Sess. (1992), the provision is intended to prohibit "transactions undertaken with an access device issued to another person if...such transactions are knowingly effected with the intent to defraud and...result in the receipt of anything aggregating $1,000 or more in value over a one-year period."

[cited in USAM 9-49.000]