The Anatomy a Credit Card Theft Charge

You have to look at criminal charges closely. Drill down deep. In a criminal case, don’t get thrown off the scent by taking the arrest report as the Gospel Truth. It’s not. An arrest report isn’t even admissible in court. The important document is called “The Information”. It’s what the prosecutor files after they’ve reviewed the police report and (supposedly) spoken with the witnesses in the case. The Information contains what the defendant is charged with, regardless of what the police may have arrested the person for.

Now, this all important document–the “Information”–contains lots of words. Words have meaning. That being said, it shouldn’t come as any surprise to you that we lawyers like argue over what things mean.

We’re going to take a close look today at credit card crimes. Let’s briefly review the evolution of a typical fraudulent use of a credit card arrest.

Our journey often begins with surveillance cameras. Someone takes a stolen credit card, and uses it at a gas pump. Guess what? There’s video cameras everywhere you use a credit card. No need to dig out CSI Miami spy satellite imaging to solve this case. A credit card swipe has a time code attached to it, and this is matched up to the store’s surveillance video. So, how long does it take to get a picture of the “suspect”? Like, five seconds. Just rewind the tape.

Ok, but how is a person’s identity determined from surveillance footage? Well, if the credit card was used at a gas station, simply look at the license plate–and you’ll have an identity within another ten seconds. If the video doesn’t give any identification clues, law enforcement will simply show the surveillance footage to the card holder, and the card holder can usually fill in the gaps.

And, that’s what happened in the case of A.M. v. State, 794 So. 2d 645 (Fla. 2d DCA 2001). A.M. took her mother’s credit card and used it in a store, charging up $349 worth of stuff. She did not have her mom’s permission to use the card, but when the person at the register asked A.M. about the name on the card, A.M. told the sales clerk that her mother gave her permission to use the card. A.M. signed the credit card receipt in her own name, not her mom’s name. Mom showed up at trial, and testified that her daughter did not have permission to use her card. Ouch. Things must be tense at home, right?

A.M. was charged with fraudulently representing herself to be the legitimate holder of her mom’s credit card, in violation of Florida Statute 817.61. She was convicted. She appealed, arguing she wasn’t guilty of the crime charged. Did the appellate court agree?

If we step back for a moment and fly at a slightly higher altitude, credit card shenanigans constitute at least three separate crimes. A.M. was charged with (1) fraudulently representing herself as the card holder, in violation of 817.61.

Also, Florida law makes it a crime to (2) steal a credit card (Section 812.014, Florida Statutes). Clearly, A.M. was guilty of stealing her mom’s credit card (but A.M. wasn’t charged with this).

And finally, (3) fraudulent use of a credit card is a crime (Section 817.60, Florida Statutes). Again, A.M. was guilty of fraudulent use of her mom’s credit card (but again, she wasn’t charged with this).

A.M. was convicted of holding herself out as the victim while using the victim’s credit card. This crime is committed in many ways. In the most extreme example, when credit card numbers are stolen some folks use these stolen numbers to print up new (fake) cards with different names on them. So, if A.M. stole my credit card numbers and then printed herself a new card that no longer says “JOHN P GUIDRY II” but instead says “A.M.” on the bottom–A.M. would have committed the crime charged under 817.61, as she is fraudulently representing to the sales clerk that she is the legitimate holder of my credit card.

The problem with A.M.’s conviction is that A.M. didn’t hold herself out as the cardholder. She told the clerk the card was her mother’s. A.M. didn’t even sign her mom’s name. A.M. signed her own name. She never held herself out to be her mother or the card owner. As such, her conviction was overturned by the appeals court (but see the dissenting opinion for a more expansive view of 817.61).

Now, let’s examine a second real life example of how credit card crimes pan out. Last week, the case of Jones v. State came out. 2018 Fla. App. LEXIS 3325 (Fla. 4th DCA 2018). Again, the same charge as A.M., a violation of 817.61. A victim was on a retreat at a monastery when her credit card company sent an alert that her credit card was used several times at a McDonalds. And you can pretty much figure out the rest. The police pulled the surveillance video from the cash register. The person using the victim’s card was wearing a work vest, so the police showed the surveillance pictures to several employees, and Jones was eventually identified.

Even though Jones was charged under the same statute as A.M., Jones never signed a receipt at McDonalds. Jones was convicted of fraudulently representing that he was the legitimate holder of the card. Jones argued that his conviction should be thrown out, just as A.M.’s was thrown out. But the appellate court didn’t agree, reasoning that “although the merchant did not ask and no one checked as to whether [Jones] was the owner of the card or had permission to use it, we think in this day and age of credit card transactions which do not require signatures about a certain amount, the act of swiping constitutes a representation that the swiper had authority to use the card.” id. Furthermore, the court cited a Maryland case for the proposition that “ordinarily, when a person tenders a stolen credit card to a merchant as payment for goods or services, the person so presenting implicitly represents that he or she is the cardholder.” id. citing Clark v. State 188 Md. App. 185 (Md. Ct. Spec. App. 2009).

As you can see, A.M. got away with it. Jones did not. Now, you probably know more about the nuances of credit card fraud than you ever cared to. You’re welcome.