U.S. v. Ryan
| Decision Date | 16 January 1990 |
| Docket Number | No. 88-2094,88-2094 |
| Citation | 894 F.2d 355 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Beverly C. RYAN, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
David J. Phillips, Asst. Federal Public Defender, D. Kansas, Kansas City, Kan. (Charles D. Anderson, Federal Public Defender, D. Kansas, Kansas City, Kan.), for defendant-appellant.
Robert S. Streepy, Asst. U.S. Atty., Kansas City, Kan. (Benjamin L. Burgess, Jr., U.S. Atty., and Leon J. Patton, Asst. U.S. Atty., Kansas City, Kan., were also on the brief), for plaintiff-appellee.
Before HOLLOWAY, Chief Judge, SETH and TACHA, Circuit Judges.
Appellant Beverly Ryan was charged by indictment on two counts of unlawful use of credit cards, stolen or obtained with intent to defraud, in transactions affecting interstate commerce and obtaining goods of an aggregate value of $1,000 or more in violation of 18 U.S.C. Secs. 1029(a)(2) and 2. Defendant filed a motion to dismiss, "for the reason that this Court lacks jurisdiction of the subject matter and venue is improperly placed in Kansas." I R. Item 11 at 1. After hearing argument, the district court denied the motion. Defendant then entered a conditional plea of guilty to one of the counts against her, preserving, under Fed.R.Crim.P. 11(a)(2), for appeal the issue of aggregation of amounts from transactions in different states to satisfy the jurisdictional amount. Following conviction and sentence, defendant filed a timely appeal. We affirm.
The facts, for purposes of this appeal, are undisputed. On February 24, 1988, defendant Ryan was indicted on two counts of violating 18 U.S.C. Sec. 1029(a)(2). 1 Count One stated that "in the District of Kansas, and elsewhere, ... in transactions affecting interstate commerce," Ms. Ryan "did knowingly and with intent to defraud, traffic in or use one or more unauthorized access devices, namely Mastercard credit cards, ... that were stolen or obtained with the intent to defraud, and by such conduct obtained goods of an aggregate value of $1,000.00 or more." Count Two was identical, except that it referred to a VISA card.
At the motion to dismiss and plea hearing, the government stated that it had evidence of the following facts: In March and April, 1987, Beverly Ryan, an employee of the United Missouri Bank in Kansas City, Missouri, took credit cards which had been returned by their holders to the bank. Ms. Ryan used these cards, presumably to make purchases, in Missouri and Kansas. In addition, she gave one of the cards to her ex-husband to use. III R. 13-14.
The total amount charged was over $1000, but the government concedes that less than $1000 was charged in Kansas. Brief of Appellee at 2. Ms. Ryan was apprehended after a store clerk in Olathe, Kansas, called for authorization on the VISA card which she was attempting to use. III R. 14. Ms. Ryan moved to dismiss, because she asserted that in order to be prosecuted in the United States District Court of Kansas, at least $1000 worth of value must have been obtained in Kansas alone. I R. Item 11. She asserted, and continues to assert, that amounts charged in different states cannot be aggregated to reach the $1000 jurisdictional amount.
The district court denied the motion and accepted Ms. Ryan's conditional plea of guilty to Count One. III R. 16. The other count was dismissed. Ms. Ryan was sentenced to a three-year suspended prison sentence with three years of probation. She was also ordered to make restitution and pay an assessment to the Crime Victims Fund. II R. 5-6.
The issues raised on appeal are: 1) can the jurisdictional amount for prosecution under 18 U.S.C. Sec. 1029 be satisfied by aggregating amounts from different districts? 2) was venue properly placed in the District of Kansas for prosecution? 3) if aggregation is proper, do amounts charged to credit cards in Missouri affect only intrastate commerce, thus making them unavailable for aggregation?
Defendant Ryan first asserts that amounts of value of things obtained in different districts cannot be aggregated in order to reach the jurisdictional amount. We disagree.
The broad wording of the statute itself indicates that aggregation should be allowed between districts. The statute provides that anyone who knowingly "uses one or more unauthorized access devices during any one-year period, and by such conduct obtains anything of value aggregating $1,000 or more " is guilty of the offense if the action affects interstate or foreign commerce. 18 U.S.C. Sec. 1029(a) (emphasis added). This wording is broad and there is no mention of geographical limitations. We believe that the statute means what it says, and we are unwilling to read into it a requirement which would undermine the statute's clear purpose.
In order to be convicted of a violation of 18 U.S.C. Sec. 1029(a)(2), three elements must be satisfied: First, the person must have knowingly and with intent to defraud trafficked in, or used, one or more access devices (such as credit cards) without authorization. Second, the person must, as a result, have obtained anything of value aggregating $1000 or more during a year-long period. Finally, the offense must have affected interstate or foreign commerce. 18 U.S.C. Sec. 1029(a).
Section 1029 was enacted in 1984 as a response to the growing importance of credit cards and other "access devices" in our society and to increasingly sophisticated criminal activity in this area. H.R.Rep. No. 894, 98th Cong., 2d Sess., reprinted in 1984 U.S.Code Cong. & Admin.News 3182, 3689-3690. One of its purposes was to close the loopholes of already existing legislation under the Truth in Lending Act, 15 U.S.C. Sec. 1644, and the Electronic Funds Transfer Act, 15 U.S.C. Sec. 1693n(b). Those statutes prohibit fraudulent use of credit cards and debit instruments. However,
[b]oth of these statutes use a jurisdictional amount of $1,000 of activity in each instrument within 1 year; industry representatives state that the organized groups generally stay just under this amount but use many different counterfeit or stolen cards or debit instruments.
H.R.Rep. No. 894, 98th Cong., 1984 U.S.Code Cong. & Admin.News at 3691. See also United States v. Iredia, 866 F.2d 114, 120 (5th Cir.), cert. denied, --- U.S. ----, 109 S.Ct. 3250, 106 L.Ed.2d 596 (1989); United States v. Brewer, 835 F.2d 550, 553 (5th Cir.1987); United States v. Newman, 701 F.Supp. 184, 186 (D.Nev.1988).
Congress stressed that neglect of white collar crimes such as credit card fraud "is a great mistake and in fact an attack on white collar crime can often be much more productive, economically, to this country than the more publicized emphasis on violent crime." H.R.Rep. No. 894, 98th Cong., 1984 U.S.Code Cong. & Admin.News at 3690. The House Committee on the Judiciary found evidence of the deterrent power of the law when enforced in the area of white collar crime. By using the phrase "affects interstate or foreign commerce," the Committee intended to establish "a broad jurisdictional basis." See H.R.Rep. No. 894, 98th Cong., 1984 U.S.Code Cong. & Admin.News at 3702; Newman, 701 F.Supp. at 186-87.
At the same time, Congress recognized that not every credit card crime warrants federal attention. For example, the use of counterfeit cards is considered more serious than the misuse of genuine cards; there is therefore no threshold dollar amount for producing or trafficking in counterfeit cards. H.R.Rep. No. 894, 98th Cong., 1984 U.S.Code Cong. & Admin.News at 3699. For misuse of genuine credit cards, "certain thresholds contained in the bill, such as the dollar amount threshold on trafficking in or using unauthorized devices ... will insure that Federal involvement is concentrated on those situations where they can best supplement the efforts of State and local governments." Id. at 3702. It is this fact to which defendant Ryan points in her assertion that amounts should not be aggregated from different districts in order to meet the jurisdictional amount. She argues that small amounts from different districts are better left to the States to handle.
However, Congress also limited federal jurisdiction with an additional constraint: the offense must affect interstate or foreign commerce. 18 U.S.C. Sec. 1029(a). Thus in order to be convicted of violating the statute, one must obtain value of at least $1000 and the offense must affect interstate or foreign commerce. This second requirement, in addition to the threshold amount, ensures that the federal government will involve itself in those cases which it is best able to handle and in which it has the most interest. Cf. United States v. Mikelberg, 517 F.2d 246, 252 (5th Cir.1975), cert. denied, 424 U.S. 909, 96 S.Ct. 1104, 47 L.Ed.2d 313 (1976) (). Here both elements were alleged--the amount of goods obtained was charged to be of an aggregate value of $1,000 or more, and the offense was allegedly committed "in transactions affecting interstate commerce."
We are not persuaded by defendant's arguments based on Travis v. United States, 364 U.S. 631, 81 S.Ct. 358, 5 L.Ed.2d 340 (1961). She argues under Travis that here there was an offense committed only where goods of a value of at least $1,000 were obtained. She says that Travis held that the offense of filing a false affidavit was committed only where the filing of the affidavit was completed--in the District of Columbia--in violation of 18 U.S.C. Sec. 1001, and that here the offense had to be completed by obtaining $1,000 of goods in Kansas for the offense to be committed there. In Travis, however, the only place where a false affidavit was "on file" with the Board and in a matter "within [its] jurisdiction," 18 U.S.C. Sec. 1001, was...
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