10th Cir. Crim. Pattern Jury Instr. 2.50.1

ACCESS DEVICES 18 U.S.C. § 1029(a)(1)

The defendant is charged in count ————— with a violation

of 18 U.S.C. section 1029(a)(1).

T h i s l a w m a k e s i t a c r i m e t o [p r o d u c e] [u s e] [t r a f fi c i n]

counterfeit access devices.

T o fi n d t h e d e f e n d a n t g u i l t y o f t h i s c r i m e y o u m u s t b e

convinced that the government has proved each of the following

beyond a reasonable doubt:

First: the defendant knowingly [produced] [used] [trafficked

in] one or more counterfeit access devices;

Second: the defendant acted with intent to defraud; and

Third: the defendant’s conduct affected interstate or foreign

commerce.

The term “access device” means any credit card, plate, code,

account number, electronic serial number, mobile identification

number, personal identification number, or other

telecommunications service, equipment, or instrument identifier,

or other means of ac count 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).

The term “counterfeit access device” means any access device

that is counterfeit, fictitious, altered, or forged, or an identifiable

component of an access device or a counterfeit access device.

[The term “produced” includes the design, alteration,

authentication, duplication, or assembly of a counterfeit access

device.]

[The term “used” includes any effort to obtain money, goods,

services, or any other thing of value, or to initiate a transfer of

funds with a counterfeit access device.]

[The term “trafficked in” means the transfer, or other disposal

of, a counterfeit access device to another, or the possession or

control of a counterfeit device with the intent to transfer or dispose

of it to another.]

PATTERN CRIMINAL JURY INSTRUCTIONS

164

To act “with intent to defraud” means to act willfully with

intent to deceive or cheat, ordinarily for the purpose of causing

financial loss to another or bringing about financial gain to one’s

self.

The essence of the offense is the knowing use of a counterfeit

access device with intent to defraud, and it is not necessary to

prove that anyone was in fact deceived or defrauded.

While it is not necessary to prove that the defendant

specifically intended to interfere with or affect interstate or foreign

commerce, the government must prove that the natural

consequences of the acts alleged in the indictment would be to

affect “interstate commerce,” which means the flow of commerce

or business activities between two or more states.