Instruction 8.780, Criminal Model Jury Instructions for Use in the District Court

OBTAINING SOMETHING OF VALUE WITH A CREDIT CARD

BY FRAUDULENT MISREPRESENTATION

G.L. c. 266, § 37B(g)

The defendant is charged with obtaining (money) (goods)

(services) (anything of value) by fraudulently misrepresenting that

they were the holder of a credit card. To prove the defendant guilty of

this offense, the Commonwealth must prove four things beyond a

reasonable doubt:

First, that the defendant used a credit card to obtain (money)

(goods) (services) (anything of value);

Second, that the defendant did so by representing that they were

the holder of the card (by representing that they are the holder of a

card where such card has not in fact been issued);

Third, that the defendant did so (without the cardholder’s

consent) (knowing that the card had not in fact been issued); and

Fourth, that the defendant engaged in this conduct with the

intent to defraud.

To prove the first element, the Commonwealth must prove

beyond a reasonable doubt that the defendant obtained (money)

(goods) (services) (anything of value) by using a credit card. A credit

card is a device that enables the cardholder to obtain money, goods,

services, or anything else of value on credit without immediate

payment or by debit from a cash account.1

To prove the second element, the Commonwealth must prove

beyond a reasonable doubt that the defendant falsely claimed to be

the cardholder. The cardholder is the (person) (entity) named on

the face of the credit card to whom or for whose benefit the credit

card was issued. A claim of being a cardholder can be made orally,

in writing, or by conduct.

[Alternative 1] To prove the third element, the Commonwealth

must prove beyond a reasonable doubt that the defendant falsely

claimed to be the cardholder without the actual cardholder’s consent.

Consent is permission given by a person who has the authority to

give permission, in this case the cardholder. Consent may be

1

Section 1 of G.L. c. 266, § 37, provides a more expansive definition of a credit card than the one

provided in this instruction: A credit card is “an instrument or device, whether known as a credit card,

credit plate or other name, or the code of number used to identify that instrument or device or an

account of credit or cash accessed by that instrument or device, issued with or without a fee by an

issuer for the use of the cardholder in obtaining money, goods, services or anything else of value on

credit or by debit from a cash account.”

express or implied, and it may be oral or written. Either way, the

Commonwealth must prove beyond a reasonable doubt that consent

was not given.

[Alternative 2] To prove the third element, the Commonwealth

must prove beyond a reasonable doubt that the defendant falsely

claimed to be the cardholder knowing that the card had not in fact

been issued. This requires you to make a decision about the

defendant’s state of mind at that time. You may examine any

evidence regarding the defendant’s actions or words, all of the

surrounding circumstances, and any reasonable inferences you draw

from that evidence to help you determine whether the defendant acted

knowing that the card had not been issued.

To prove the fourth element, the Commonwealth must prove

beyond a reasonable doubt that the defendant engaged in this

conduct with the intent to defraud. To act with an intent to defraud

means to act knowingly with the aim of deceiving or cheating another.

The purpose is often to bring about gain or benefit either for oneself

or for another person or entity.1 Again, you may examine the

evidence in the case, all of the surrounding circumstances, and any

reasonable inferences you draw from that evidence, to help you

determine whether the defendant intended to defraud.

See Commonwealth v. O’Connell, 438 Mass. 658, 664 (2003) (Commonwealth need not

show intent to defraud particular person, but sufficient that defendant “intended to injure

or defraud someone”; proof of intent to defraud may be inferred from the circumstances).

If the Commonwealth has proven all four elements beyond a

reasonable doubt, you should return a verdict of guilty. If the

Commonwealth has failed to prove one or more of these elements

beyond a reasonable doubt, you must find the defendant not guilty.