NYC Access Device Fraud Lawyer

What is Access Device Fraud? 

A person may be charged with the federal offense of access device fraud when he or she knowingly and with intent to defraud another produces, uses, or sells one or more “counterfeit access devices” as that term is defined under the law, or uses or sells one or more  “unauthorized access devices” as that term is defined, and obtains anything of value aggregating to more than $1,000 in a one year period in interstate commerce.  Access device fraud charges may also be brought against a person if he or she possesses at least fifteen (15) counterfeit or unauthorized access devices with the intent to defraud.  The federal access device fraud statute also prohibits any person from offering to sell or produce a fraudulent or false access device or to create a device to obtain unauthorized use of telecommunications services.  Each of these violations of law is punishable by up to ten years in federal prison in addition to significant fines, restitution, and criminal forfeiture.  

There are, however, additional ways in which one can commit access device fraud which carry fifteen-year prison sentence maximums. Thus, if the accused knowingly produced, sold, or possessed access device-making equipment or a “scanning receiver” as that term is defined under the law, or with intent to defraud engages in transactions with one or more access devices in order fraudulently to receive payment or anything of value aggregating to more than $1,000 in a one year period, or produces, uses, sells or possesses computer hardware or software knowing it has been configured so as to alter or modify a telecommunications instrument to permit use without authorization, they may be charged under provisions of the access device fraud statute that authorizes this increased punishment. 

Federal law defines an “access device” as including any card, plate, code account information, electronic serial number, mobile identification number, personal identification number, and any equipment or other means of accessing any account that can be used to obtain money, goods, services or another thing of value.  The law defines a “counterfeit access device” as any access device that is fictitious, altered, or forged.   Under the law, an “unauthorized access device” is defined as an access device that has been lost, stolen, revoked, expired, or otherwise obtained with the intent to defraud.” 

Sentencing for Access Device Fraud

As noted, federal law authorizes a sentence of up to ten years in federal prison for certain types of access device fraud and fifteen years for others.   Although that means that a court may impose a sentence anywhere between no jail time and those statutory maximums, in practice a federal judge will be guided by a number of factors in settling upon an appropriate sentence for access device fraud convictions.  Under the non-binding sentencing guidelines, a federal court will first consider the total amount of financial harm or “loss” that was caused as a result of the offense. Bear in mind that this may not be limited to the damages which an individual defendant caused or the unlawful proceeds or gain which he or she received but also the total amount of such loss caused by all of his or her co-conspirators.  In addition, the court will consider the number of victims of such fraud, the role the defendant played in the overall scheme, the sophistication of the means used to commit the crime, and other aggravating factors.   The court will then consider the history and character of the offender, the level of support he or she has in the community and other factors presented to mitigate the misconduct.