6th Cir. Pattern Crim. Jury Instr. 15.05

(1) Count ___ of the indictment charges the defendant with violating federal law by knowingly trafficking in or using one or more unauthorized access devices with intent to defraud during a one-year period and thereby obtaining anything of value totaling $1,000 or more.

For you to find the defendant guilty of this crime, you must find that the government has proved each and every one of the following elements beyond a reasonable doubt:

(A) First: That the defendant knowingly [trafficked in] [used] one or more unauthorized access devices during any one-year period.

(B) Second: That the defendant thereby obtained things of value totaling $1,000 or more during that one-year period.

(C) Third: That the defendant acted with intent to defraud.

(D) Fourth: That the offense affected interstate [foreign] commerce.

(2) Now I will give you more detailed instructions on some of these terms.

(A) The term “access device” means any

-[credit card]

-[card]

-[plate]

-[code]

-[account number]

-[electronic serial number]

-[mobile identification number]

-[personal identification number]

-[telecommunications service, equipment or instrument identifier]

-[other means of account access used to obtain money or any other thing of value or used to initiate a transfer of funds].

(B) An access device is “unauthorized” if it is lost, stolen, expired, revoked, canceled, or obtained with intent to defraud.

(C) [The term “traffics in” means to transfer, or otherwise dispose of, to another, or to obtain control of, with intent to transfer or dispose of.]

(D) An act is done “knowingly” if done voluntarily and intentionally, and not because of mistake or accident or other innocent reason.

(E) To act with “intent to defraud” means to act with intent to deceive or cheat for the purpose of obtaining anything of value.

(F) The phrase “affected interstate [foreign] commerce” means that the prohibited [trafficking] [use] had at least a minimal connection with interstate [foreign] commerce. This means that the [trafficking in] [use of] the unauthorized access device had some effect upon interstate [foreign] commerce. It would also be sufficient if banking channels were used for authorizing approval of charges to the access devices.

(i) The phrase “interstate [foreign] commerce” means commerce between any combination of states, territories, and possessions of the United States, including the District of Columbia. [The phrase “foreign commerce” means commerce between any state, territory or possession of the United States and a foreign country.] [The term “commerce” includes, among other things, travel, trade, transportation and communication.]

(ii) [Trafficking in] [Using] an access device which the defendant intended to be distributed or used in interstate [foreign] commerce would meet this minimal connection requirement. The government is not required to prove that the defendant was aware of a future effect upon interstate [foreign] commerce, but only that the scheme, if completed, would have had such results.

(iii) [The government need not prove that [the prohibited [trafficking] [use] was contemporaneous with the effect upon interstate [foreign] commerce.] [the prohibited [trafficking] [use] itself affected interstate [foreign] commerce.] [the defendant had knowledge of the interstate commerce connection.]]

(3) If you are convinced that the government has proved all of these elements, say so by returning a guilty verdict on this charge. If you have a reasonable doubt about any one of these elements, then you must find the defendant not guilty of this charge.

Use Note

Paragraph (2)(F)(iii) lists items the government need not prove to establish an effect on commerce and should be used only if relevant.

Brackets indicate options for the court.

Italics indicate notes to the court.

Committee Commentary Instruction 15.05

(current through May 29, 2026)

Title 18 U.S.C. § 1029(a)(2) provides: “Whoever-- . . . (2) knowingly and with intent to defraud traffics in or 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 during that period . . . shall, if the offense affects interstate or foreign commerce, be punished . . . .”

The list of elements in paragraph (1) is based on United States v Tunning, 69 F.3d 107, 112 (6th Cir. 1995). In Tunning, the court listed the elements of § 1029(a)(2) as follows: “(1) the intent to defraud; (2) the knowing use of or trafficking in an unauthorized access device; (3) to obtain things of value in the aggregate of $1,000 or more within a one-year period; and (4) an effect on interstate or foreign commerce.” Id. In the instruction, the four elements are listed in a different order.

The definition of “access device” in paragraph (2)(A) is mostly drawn from the definition in the statute, see § 1029(e)(1). The exception is the term credit card; inclusion of that term is based on Tunning, supra, where the prosecution involved an American Express card and the court repeatedly referred to the § 1029 crime as credit card fraud.

The definition of “unauthorized” in paragraph (2)(B) comes from § 1029(e)(3). In Tunning, the Sixth Circuit held that the credit card, which the defendant obtained by using someone else’s name, did not qualify as unauthorized for the offense of trafficking in or using under § 1029(a)(2). Tunning, 69 F.3d at 113. The court explained that the card was not lost, stolen, expired, revoked or canceled, and therefore, “the only way that the government could establish that the American Express card was ‘unauthorized’ was by showing that Tunning had ‘obtained [it] with intent to defraud.’” Id. The court then found that the government’s proof offered at the defendant’s Alford-type guilty plea hearing was insufficient to find that Tunning had intent to defraud and therefore the factual basis for finding the credit card was unauthorized was insufficient for § 1029(a)(2). The conviction was vacated. Id. at 114.

The definition in paragraph (2)(C) of the term “traffics in” comes from the statute, § 1029(e)(5). The definition is in brackets because it should only be given if the offense identified in paragraph (1) was based on trafficking in as opposed to using the access device.

In the absence of authority under § 1029(a)(2), the definition of knowingly in paragraph (2)(D) is based on United States v. Svoboda, 633 F.3d 479 (6th Cir. 2011), in which the court found no error in instructions defining “knowingly” in a prosecution under § 1028(a)(6) (see Inst. 15.03). The definition is drawn verbatim from the instruction used in Svoboda, supra at 485.

The definition in paragraph (2)(E) of “intent to defraud” is based on two cases. The language on “to deceive or cheat” comes from United States v. Frost, 125 F.3d 346, 371 (6th Cir. 1997) (construing mail fraud, § 1341). The language on “for the purpose of obtaining property” is based on United States v. Williams, 1992 U.S. App. Lexis 29350 (6th Cir. 1992) (unpublished). In Williams, the panel found that an intent to defraud under § 1029(a)(2) was established at the defendant’s guilty plea hearing based on the defendant’s admission that he “switched around” social security numbers and submitted them to lenders to obtain property in the form of credit. Id. at *7-*9.

The definition of “affected interstate [foreign] commerce” in the paragraphs under (2)(F) is based on the instructions approved under § 1028 in United States v. Gros, 824 F.2d 1487, 1494-95 (6th Cir. 1987) with some modifications. The terms “production, transfer, and possession” were replaced with terms relevant to this instruction, “traffics in or uses.” Generally, duplicative words were omitted, the language was simplified, and the concepts were reordered. The definition presumes that the commerce affected is interstate commerce, and the bracketed term “foreign” should be substituted if warranted by the facts. For plain English, the instruction substitutes the word “connection” for “nexus.” The statement that an effect on commerce is established by using banking channels for authorizing approval of charges to an access device is based on United States v. Scartz, 838 F.2d 876, 879 (6th Cir. 1988). Paragraph (2)(D)(iii) lists items the government need not prove and should be used only if relevant.

Generally, the Sixth Circuit has addressed the effect on interstate commerce under § 1029 in two cases. In United States v. Scartz, 838 F.2d 876, 879 (6th Cir. 1988), the court held that under § 1029(a)(1), “inasmuch as banking channels were used for gaining authorization approval of the charges on the cards, interstate commerce was affected.” Id. In addition, a panel of the Sixth Circuit has held that under § 1029(a)(3), the government proved a sufficient effect on interstate commerce where the credit card numbers were valid numbers with foreign banks and banks located throughout the United States. See United States v. Drummond, 255 F. App’x 60, 64-65 (6th Cir. 2007) (unpublished). This last method of affecting interstate commerce is not included in the text of the instruction, so if this method is relevant, the instruction may be modified.