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Fraud and Related Activity in Connection With Access Devices

According to 18 USC Section 1029, it is prohibited to knowingly and with an intent to defraud use or traffic one or more counterfeit access device; produce, traffic, or possess device making equipment; or commit another act pursuant to a violation of the statute.

Elements of crime

The prosecution must prove the following elements beyond a reasonable doubt to prove to convict the defendant under 18 USC 1029

  • Defendant committed one of the following acts:
  • Used or trafficked in counterfeit access devices
  • Possessed or trafficked in device making equipment
  • Produced, used, trafficked, or possessed a scanning receiver
  • Arranged for another person to present to a credit card system member or agent any records or evidence of transactions made by the device for getting a fraudulent repayment
  • Obtained anything of value $1,000 or more within a year with a counterfeit access device
  • Possessed fifteen or more unauthorized or counterfeit devices
  • Affected transactions with devices issued to another one with the intention to get a payment or any other thing of value $1,000 or more within a one-year period
  • Produced, used, trafficked, or possessed instruments that were adapted for obtaining illegal use of telecommunications services
  • Solicited another person for the purpose of selling information regarding an application to obtain an access device or offering a fake access device
  • Produced, used, trafficked, or possessed software or hardware designed to modify or insert an instrument to obtain illegal telecommunications service
  • Defendant acted willfully, knowingly, and had an intent to defraud
  • Defendant’s conduct affected interstate or foreign commerce.

Intent to defraud

For the purpose of 18 USC Section 1029, intent to defraud means acting with the intention to the device or cheat another person. Device making equipment includes mechanisms, equipment, or impression making machines which create counterfeit access to funds. Access devices refer to different information that is used to access an account of funds, including personal access codes, cards, and account numbers.

18 USC Section 1029 covers crimes that involve:

  • Credit cards
  • Debit cards
  • Computer passwords
  • ATM cards
  • Personal identification numbers
  • Long-distance access codes
  • Credit or debit card numbers
  • Subscriber Identity Modules in cell phones

List of common examples of 18 USC Section 1029 violation

  • Using fraud to obtain a credit card in the mail;
  • Using another person’s credit card without authorization
  • Gaining credit card numbers by creating a fake business or web site
  • Using a credit card number fraudulently
  • Creating a counterfeit credit card;

Legal Defenses

  • Defendant did not have the intent to defraud

In case the defendant has committed any of the crimes mentioned in 18 USC 1029 but did so without having an intent to defraud, he should not be convicted of this crime

  • Defendant had or had a reasonable belief that he had an authorization

This can be a valid defense in case the defendant actually had authorization or believed that he had it.

Penalties for violating 18 USC Section 1029

  • Up to 15 years in federal prison
  • A fine of up to $250,000

 

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