Article 121a. Fraudulent Use of Credit Cards, Debit Cards, and Other Access Devices
Fraudulent use of credit cards, debit cards, and other access devices is a broad charge that can be applied to a variety of actions. For example, it can occur if someone obtains another person’s information to make unauthorized purchases or to open new credit cards in order to illegally withdraw funds from a bank account. Other acts that can be charged as credit card fraud include gift card skimming or using a company owned credit or debit card to make personal purchases. It can also occur if the accused was authorized to use the credit card or debit card but exceeded the initial authorization of the person whose authorization is required for such use.
Credit card fraud is theft. Like any other theft charge, an individual charged with credit card fraud can fight the charge through a variety of defense strategies. The right strategy depends on the facts of the individual’s case.
Credit card fraud is vigorously prosecuted by the military and these accusations can have serious consequences for individuals. If you are under investigation for credit card fraud or if you are facing allegations of credit card fraud, you need the help and guidance of an experienced and knowledgeable military defense lawyer.
Article 121a of the Uniform Code of Military Justice
The text of Article 121a of the UCMJ provides, in full, as follows:
(a) In General.—Any person subject to this chapter who, knowingly and with intent to defraud,
- a stolen credit card, debit card, or other access device;
- a revoked, cancelled, or otherwise invalid credit card, debit card, or other access device; or
- a credit card, debit card, or other access device without the authorization of a person whose authorization is required for such use;
to obtain money, property, services, or anything else of value shall be punished as a court-martial may direct.
(b)Access Device Defined.—
In this section (article), the term “access device” has the meaning given that term in section 1029 of title 18.
Pursuant to 18 U.S.C. § 1029, “access device” means “any 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 account 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).”
Elements of the Offense for Article 121a
In order to be prosecuted for being in violation of Article 121a, one the following elements must be proven:
- The accused knowingly used a stolen credit card, debit card, or other access device; OR
- The accused knowing used a revoked, cancelled, or otherwise invalid credit card, debit card; OR
- The accused knowingly used a credit card, debit card, or other access device without the authorization of a person whose authorization was required for such use.
In addition, both of the following elements must be proven:
- The use was in order to obtain money, property, services, or anything else of value; AND
- The use by the accused was with the intent to defraud.
All elements of the offense must be proved by the government beyond a reasonable doubt.
According to the Manual for Courts-Martial, this offense focuses on: (1) the intent of the accused; and (2) the technology used by the accused.
Regarding the accused’s intent, “intent to defraud” is defined to mean “an intent to obtain, through a misrepresentation, an article or thing or value and to apply it to one’s own use and benefit or to the use and benefit of another, either permanently or temporarily.” An “intent to defraud” may be inferred by circumstantial evidence.
Regarding the use being “without authorization,” this provision also applies to situations where an accused exceeds the authorization of a person whose authorization is required for such use.
Potential Punishments for Violating Article 121a
Punishments for being in violation of Article 121a will vary depending on the monetary value of the property obtained.
- If the value was $1,000 or less, maximum possible punishments include a bad-conduct discharge, forfeiture of all pay and allowances, and confinement for 10 years.
- If the value obtained during any one-year period was more than $1,000, maximum possible punishment include a dishonorable discharge, forfeiture of all pay and allowances, and confinement for 15 years.
Defenses to Article 121a
There are several defenses that can be raised in response to an allegation of fraudulent use of a credit card, debit card or other access device. The facts of each case will determine which defense should be raised.
The military defense lawyers at Brett O’Brien Law will carefully review every drug case to determine of any of the following defenses are applicable:
- Lack of Intent
As discussed above, Article 121a focuses on the accused’s “intent to defraud.” In order to have committed an offense under Article 121a, you must have had the requisite intent to do so. This means that you must have intentionally and knowingly defrauded a person or business to obtain money, property, or services. If the government is unable to prove that you had the requisite intent beyond a reasonable doubt, then there is not enough evidence to convict you.
Somewhat related to the lack of intent is the affirmative defenses related to entrapment and coercion. Entrapment is the act of creating a scenario that encourages a person to commit an offense that they would not have otherwise committed. Thus, if you were set up to illegally use a credit card, this defense may be applicable.
Similarly, coercion occurs when someone does something against their will due to threat of violence or being under duress. If someone acts under coercion or duress, then they did not willfully or knowingly defraud.
If you were authorized by the card or account holder to use their card or account, then you cannot be found guilty of violating Article 121a. Note, however, that if your use is found to have exceeded that which the card or account holder initially authorized, then you may still be found to be in violation of Article 121a. However, if the alleged victim consented to your actions and you can prove this (or if the government is unable to prove that they did not consent), then you may have a winning defense.
- Mistake or Misunderstanding
Actions of fraud often arise due to mistakes and misunderstandings. The innocent use of a credit card or debit card or other access device that you mistakenly thought that you were authorized to use, such as a family member’s credit card or the business card of your employer, could be charged as an act of credit card fraud. If you held a legitimate belief that you were authorized to use the card, however, then it would show that you lacked the intent to defraud.
- Mistaken Identity
Often, fraud takes place over the internet. An investigation into the alleged fraud may have led to charges being filed against you. Oftentimes, charges of this nature can arise due to mistaken identity such as when the prosecution is claiming that the wrong person committed the fraud. When credit card information is stolen using a false identity, the individual whose identity is stolen and used is as much of a victim as the person whose data is taken. In your defense, you could potentially show that you, too, were a victim and that you were not actually the individual who committed the act of theft.
- Insufficient Evidence
In some cases, rather than focusing on your innocence, it may be best to focus on the lack of evidence that the government has against you. In order to be convicted, the burden is on the state to prove each element of its case beyond a reasonable doubt. If the military does not have enough evidence, your military defense lawyer must point out the weaknesses in the military’s case. If the military does not have enough proof, then your case must be dismissed.
Nationwide Military Defense Lawyers
If you are charged with violating Article 121a, contact an experienced military defense lawyer today. At Brett O’Brien Law, we have defended servicemembers facing courts-martial for Article 121a offenses and we will ensure that all avenues of defense are pursued in your case.
Moreover, our military defense lawyers are here to assist you, regardless of where you are currently located. Call us today at (202) 600-4996 for a free consultation.