The opinion of the court was delivered by: John E. Miller, Chief Judge.
On November 17, 1961, Mr. Bradley D. Jesson, a competent and
reputable attorney of the Bar of this Court, was appointed by the
court to represent the defendants in the above-entitled cause.
The defendants, after conference with Mr. Jesson, waived the
return of an indictment and consented that an information be
filed, which was done. After the filing of the information, the
defendants, through their attorney, moved that arraignment be
postponed in order that they might challenge the sufficiency of
the information to charge an offense. On November 21 the
defendants filed their
motion to dismiss the information and alleged that "the
information does not state facts sufficient to constitute an
offense against the United States." Contemporaneously with the
filing of the motion, Mr. Jesson submitted to the court a
memorandum in support thereof, which memorandum and the
authorities therein cited have been considered, and the motion is
now ready for determination.
The information charges that the defendants "with unlawful and
fraudulent intent, did transport in interstate commerce from
Tumwater, Washington, to Fort Smith, Arkansas, a stolen credit
card, to-wit: Texaco National Credit Card, Number 72 436 3445 3,
issued to Walter C. Jacobs, 417 F Street, Tumwater, Washington,
which had been used and intended to be used in the falsely
making, forging and altering of a credit purchase in the amount
of $31.50 at the Womack Texaco Station, 2015 Rogers Avenue, Fort
Smith, Arkansas, to Walter C. Jacobs, 417 F street, Tumwater,
Washington, signed Walter C. Jacobs, by the said Samuel Conway
Rhea and Walter Lee Roberts, knowing the same to have been
fraudulently and falsely made, in violation of 18 U.S.C. § 2314."
It will be observed that the information is based upon the
third paragraph of 18 U.S.C. § 2314, which reads as follows:
"Whoever, with unlawful or fraudulent intent,
transports in interstate or foreign commerce, any
tool, implement, or thing used or fitted to be used
in falsely making, forging, altering, or
counterfeiting any security, or any part thereof * *
* shall be fined not more than $10,000 or
imprisonment of not more than ten years, or both."
The "thing" that is charged to have been transported in
interstate commerce is the credit card described in the
information, and it is charged that the "thing" was "used or
fitted to be used in falsely making, forging, altering, or
counterfeiting any security or any part thereof." The primary
question raised by the motion to dismiss is that the "thing" was
not used or fitted to be used in falsely making or forging "any
security." It is charged that the "thing" was used in falsely
making or forging a "credit purchase" or a document showing the
purchase of merchandise in the amount of $31.50 at the Womack
Texaco Station in Fort Smith, Arkansas, and, after the credit
purchase slip had been issued evidencing the purchase and
delivery of the merchandise, that the defendants forged the name
of Walter C. Jacobs on the credit purchase slip.
In the fifth paragraph of 18 U.S.C. § 2311, it is provided that
"securities includes any * * * evidence of indebtedness * * * or
writing evidencing ownership of goods, wares and merchandise, or
transferring or assigning any right, title or interest in or to
goods, wares, and merchandise * * *."
The defendants in their memorandum in support of their motion
cite the applicable statutes and the cases of United States v.
Jones, D.C.W.D.Mo., W.D., 1960, 182 F. Supp. 146; and Williams v.
United States of America, D.C.S.D.Cal., C.D., 1961, 192 F. Supp. 97.
I have studied the decisions and statutes cited by defendants
and, while it seems to be the law that the mere transportation in
interstate commerce of a stolen credit card is not in itself a
violation of the statute, but when the credit card is transported
with unlawful and fraudulent intent to use it in falsely making,
forging, altering or counterfeiting an evidence of indebtedness
or a document or writing evidencing ownership of goods, wares and
merchandise or evidencing the transfer or assignment of any
right, title or interest in or to goods, wares and merchandise,
it does constitute a violation of the law.
Therefore, the court is of the opinion that the information
charges the defendants with a violation of 18 U.S.C. § 2314, and
the motion of defendants should be overruled.
An order in accordance with the above is being entered today.
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