The definition of "securities" is set forth in 18 U.S.C. § 2311. It is beneficial in understanding its scope to divide it into several groupings. Accordingly, the term "securities" includes:
- any note, stock certificate, bond, debenture, check, draft, warrant, traveler's check, letter of credit, warehouse receipt, negotiable bill of lading, evidence of indebtedness;
- certificate of interest or participation in any profit-sharing agreement, collateral-trust certificate, preorganization certificate or subscription, transferable share, investment contract, voting-trust certificate;
- valid or blank motor vehicle title;
- certificate of interest in property, tangible or intangible;
- instrument or document or writing evidencing ownership of goods, wares,and merchandise, or transferring or assigning any right, title, or interest in or to goods, wares, and merchandise;
- in general, any instrument commonly known as a "security," or any certificate of interest or participation in, temporary or interim certificate for, receipt for, warrant, or right to subscribe to or purchase any of the foregoing; or
- any forged, counterfeited, or spurious representation of any of the foregoing.
Except for the change in 1984 relating to motor vehicle titles, the definition has remained the same since its original enactment in 1934 when the National Stolen Property Act consisted of what is only the first paragraphs of present 18 U.S.C. §§ 2314 and 2315. The use of the word "includes" indicates the great breadth which should be given to the term. Group (g) seems to have been intended to relieve the government of any requirement to prove that the stolen securities were in fact genuine (e.g., a theft victim may have been holding unbeknownst to himself counterfeit or forged securities.)
Group (a) represents the forms of securities that are most commonly encountered under 18 U.S.C. 2314 and 2315. The term "evidence of indebtedness" appears to be the most elastic but the courts have been reluctant to expand its scope to such things as credit card charge slips, United States v. Canton, 470 F.2d 861 (2d Cir. 1972); airline tickets, United States v. Jones, 450 F.2d 523 (5th Cir. 1971); or department store scrip certificates, United States v. Dunlap, 573 F.2d 1092 (9th Cir. 1978). Money orders, which are not specifically mentioned in the definition, are covered. United States v. Rochon, 575 F.2d 191 (8th Cir. 1978); United States v. Buckles, 562 F.2d 967 (5th Cir. 1977). Sight drafts are deemed securities and, thus, are covered. United States v. Bass, 562 F.2d 967 (5th Cir. 1977).
Therefore, the definition is not limited to securities normally considered securities by the commercial and financial community and is broader than the definition of security under the Securities and Exchange Act (15 U.S.C. § 77b). For example, blank traveler's checks are securities because they have all the indicia of bearer instruments. See United States v. Petti, 168 F.2d 221 (2d Cir. 1948); Peoples Savings Bank v. American Surety Co., 15 F. Supp. 911 (W.D.Mich. 1936). By the 1984 amendment, blank motor vehicle titles are now securities. As a general rule, most other blank forms for securities, however, are not in themselves securities. See United States v. Jackson, 576 F.2d 749 (8th Cir. 1978)(blank stock certificates are not securities). However, a blank form for a security may become a security, even though not fully filled out, when sufficient attributes of that type of instrument have been placed thereon. See United States v. Webb, 443 F.2d 308 (5th Cir. 1971)(unsigned payroll check); United States v. Anderson, 359 F. Supp. 61 (D.Ark. 1973) (counterfeit corporate bonds). The Department takes the position that a stolen or fraudulently obtained credit card is not a security. However, the misuse of such credit cards may be covered by 15 U.S.C. § 1644 or 18 U.S.C. §§ 1029, 1341 or 1344 (see JM 9-43.100 and JM 9-49.000 et seq.).
Under 18 U.S.C. §§ 2314 and 2315 a security, once it has been generated, must remain a security during the activity prohibited by these sections. Hence, any cancellation or voiding of a security by the issuer or its agent, evidenced on the document itself, would terminate its status as a "security." See United States v. Teresa, 420 F.2d 13 (4th Cir. 1969).
Although there appears to be a split in authority, the safer rule seems to be that whether a particular document is a security under 18 U.S.C. §§ 2314 and 2315 is a factual question for the trier of fact and not a legal question for the court. See United States v. Johnson, 718 F.2d 1317 (5th Cir. 1983)(en banc), reversing prior panel decision at 700 F.2d 163.