Summary
The Fifth Circuit affirmed Jack Brewer's convictions under 18 U.S.C. § 1029 for trafficking in counterfeit long-distance telephone access codes and possessing counterfeit or unauthorized access devices. The court held that long-distance access codes fall within the statutory definition of access device and that the codes could be both counterfeit and unauthorized, including codes that had been canceled or revoked.
Topics
Practice areas
Questions Presented
- Whether 18 U.S.C. § 1029 applies to the misuse and trafficking of long-distance telephone access codes.
- Whether the same access codes may qualify as both counterfeit access devices and unauthorized access devices under § 1029.
- Whether a genuine access-code number that happens to match a valid account can be a counterfeit access device when fabricated or obtained through hacking.
- Whether possession of fifteen or more access-code numbers violates § 1029 when fewer than fifteen codes were still active.
Holdings
- Long-distance telephone access codes fall within § 1029's broad definition of an access device, and misuse of those codes may constitute a federal offense under the statute.
- Applying § 1029 to the misuse of long-distance access codes does not violate due process because the statute gives a person of ordinary intelligence a reasonable opportunity to know that the conduct is prohibited.
- An access code may simultaneously qualify as a counterfeit access device and an unauthorized access device when it is fictitious or forged and was obtained with intent to defraud.
- A fabricated access code may be counterfeit even if its number happens to correspond to a valid account or working access code.
- Section 1029 does not require each of the fifteen access-code numbers possessed by the defendant to be active or presently usable; canceled or revoked access codes may count as unauthorized access devices.
Key quotations
“we are persuaded that Brewer's conduct is reached by a practical reading of the statute.” (¶ 22)
“The test of whether a statute is unconstitutionally vague so as to deprive fair notice is whether it provides a person of ordinary intelligence a reasonable opportunity to know what is proscribed.” (¶ 23)
“We are not persuaded that Congress intended the statute to require that each of those 15 code numbers be active.” (¶ 28)
Factual background
Brewer allegedly used his telephones to make repeated calls to Texas National Telecommunications' toll-free number, trying combinations until he identified valid personal access codes. He supplied an undercover Secret Service agent with lists of access codes, many of which worked, and sold the codes for telephone service. The codes included numbers that were fictitious or forged and numbers that had been obtained with intent to defraud, including codes that had been canceled or revoked.
Procedural history
A jury convicted Brewer on four counts arising from his acquisition and sale of long-distance telephone access codes. The United States District Court for the Northern District of Texas sentenced him to five years' imprisonment on one count and concurrent five-year probationary terms on the other counts. Brewer appealed, arguing that § 1029 did not apply to telephone access codes and that the particular codes did not satisfy the statutory definitions.