4.18.1029 Access Device or Credit Card Fraud, 18 U.S.C. § 1029(a)(2) See Statute

[Defendant] is charged with knowingly and fraudulently using [an] unauthorized access device[s] between [date] and [date]. It is against federal law to knowingly and fraudulently use access devices without authorization.

For you to find [defendant] guilty of this crime, you must be convinced that the government has proven each of the following things beyond a reasonable doubt:

First, that [defendant] used [an] access device[s];

Second, that [defendant] used it without authorization and thereby obtained something of value aggregating at least $1,000 during the one-year period from [date] to [date];

Third, that [defendant] acted knowingly, willfully and with the intent to defraud;

Fourth, that [defendant]’s conduct affected interstate or foreign commerce.

The term “access device” [means any card, plate, code, account number or other means of account access that can be used alone or in conjunction with another access device to obtain money, goods, services or any other thing of value, or that can be used to initiate a transfer of funds other than a transfer originated solely by paper instrument. It] includes credit cards.

The term “unauthorized access device” includes any access device or credit card that is lost, stolen, expired, revoked, canceled or obtained with intent to defraud.

[Defendant] acted “knowingly” if [he/she] was conscious and aware of [his/her] actions, realized what [he/she] was doing or what was happening around [him/her], and did not act because of ignorance, mistake or accident.

To act with “intent to defraud” means to act with the intent to deceive or cheat someone. Good faith on the part of [defendant] is a complete defense to a charge of credit card fraud. If [defendant] actually believed in good faith that [he/she] was acting properly, even if [he/she] was mistaken in that belief, and even if others were injured by [his/her] conduct, there would be no crime. An honest mistake in judgment does not rise to the level of criminal conduct. A defendant does not act in good faith if, even though he or she honestly holds a certain opinion or belief, he or she also acted with the purpose of deceiving others. While the term good faith has no precise definition, it means among other things a belief or opinion honestly held, an absence of malice or ill will, and an intention to avoid taking unfair advantage of another. The burden is on the government to prove fraudulent intent and consequent lack of good faith beyond a reasonable doubt. The defendant is under no obligation to prove good faith.

Conduct “affects” interstate or foreign commerce if the conduct has a demonstrated connection or link with such commerce. It is not necessary for the government to prove that [defendant] knew or intended that [his/her] conduct would affect commerce; it is only necessary that the natural consequences of [his/her] conduct affected commerce in some way.

Comment(s)

(1) The definition of good faith used here was cited approvingly in the context of credit card fraud in United States v. Goodchild, 25 F.3d 55, 59-60 (1st Cir. 1994).

(2) This instruction can be modified for § 1029(a)(1) and (3) offenses (knowingly and with intent to defraud producing, using, or trafficking in a counterfeit access device or possessing 15 or more counterfeit or unauthorized access devices). (The elements of interstate commerce and intent to defraud are the same.) On a § 1029(a)(3) offense, the jury does not have to be unanimous on which 15 cards were illegally possessed. United States v. Lee, ___ F.3d __, No. 02-1644, 2003 WL 133007 (1st Cir. Jan. 17, 2003).