§ 9.01 Fraud in Connection with Access Devices

• Jurisdiction: United States
• Publication year: 2020

§ 9.01 Fraud in Connection with Access Devices

Title 18, Section 1029¹ of the United States Code criminalizes certain activities involving "access devices," which are defined as

"any card, plate, code account number, electronic serial number, mobile identification number, personal identification number, or other telecommunication service, equipment, or instrument identifier, or other means of account access that can be used . . . to obtain money, goods, services, or any other thing of value."²

It also prohibits activities involving "counterfeit access devices," which are defined as "any access device that is counterfeit, fictitious, altered, or forged, or an identifiable component of an access device or a counterfeit access device"³ and "unauthorized access devices," which are defined as "any access device that is lost, stolen, expired, revoked, canceled or obtained with intent to defraud."⁴

Specifically Section 1029 makes criminal the following:⁵

(1) knowingly and with intent to defraud produce, use or traffic in a counterfeit access device;⁶
(2) knowingly and with the intent to defraud traffic in or use one or more access devices during any one-year period and thereby obtain anything of a value aggregating $1,000 or more;⁷
(3) knowingly and with the intent to defraud possess fifteen or more devices which are counterfeit or unauthorized access devices;⁸
(4) knowingly and with the intent to defraud produce, traffic in, have custody or control of or possess access device-making equipment;⁹
(5) knowingly and with the intent to defraud effect transactions with one or more access devices issued to another person or other persons to receive anything of value during any one-year period of a value aggregating $1,000 or more;¹⁰
(6) without the authorization of the issuer of an access device, knowingly and with the intent to defraud solicit someone for the purpose, either, of offering an access device or selling information regarding an application to obtain an access device;¹¹
(7) knowingly and with intent to defraud use, produce, traffic in, have custody or control of, or possess a telecommunications instrument that has been modified or altered to obtain unauthorized use of telecommunications services;¹²
(8) knowingly and with intent to defraud use, produce, traffic in, have control or custody of, or possess a scanning receiver;¹³
(9) knowingly and with the intent to defraud use, produce, traffic in, have custody or control of or possess hardware or software knowing it has been configured to insert or modify telecommunications identifying information associated with or contained in a telecommunications instrument so that the instrument can be used to obtain telecommunications service without authorization;¹⁴ or
(10) without the authorization of a credit card owner or its agent, knowingly and with the intent to defraud cause or arrange for another person to present one or more records of transactions made by an access device to the owner or its agent for payment.¹⁵

Violations of subsections (a)(1), (a)(2), (a)(3), (a)(6), (a)(7) or (a)(10) can result in a fine, or imprisonment for not more than ten years or both.¹⁶ Violations of subsections (a)(4), (a)(5), (a)(8) and (a)(9) can result in a fine, or imprisonment for not more than fifteen years or both.¹⁷ The penalties for defendants with a prior conviction under Section 1029 rises to a fine, imprisonment for not more than twenty years or both.¹⁸ The statute also permits the forfeiture of any property "used or intended to be used to commit the offense."¹⁹

Defendants convicted of violating Section 1029 are sentenced pursuant to Section 2B1.1 (Larceny Embezzlement, and Other Forms of Theft) of the Sentencing Guidelines which provide for a Base Offense Level of 6. In determining the amount of loss for the purpose of adjusting the offense level pursuant to the table set forth in Section 2B1.1(b)(1), the Guidelines provide that "[i]n a case involving any counterfeit access device or unauthorized access device, loss includes any unauthorized charges made with the counterfeit access device or unauthorized device and shall be not less than $500...