Financial Transaction Device – Unlawful Sale, Use, or Possession.

In Michigan there are several crimes related to credit card fraud, debit card fraud, and gift card fraud or point of sale fraud that are commonly prosecuted.  The above mentioned items are also referred to in Michigan as financial transaction devices.  Even the possession of someone else’s account number, credit card number, PIN (personal identification number), personal account, or business account can be prosecuted when possessed fraudulently to obtain money, a refund, or credit for goods, services, or other things of value under certain circumstances.
The most common financial transaction device fraud or credit card fraud case in Michigan is for stealing, taking, removing a financial transaction device from the deviceholder.  MCL 750.157n(1) provides that a person who steals knowingly takes, or knowingly removes a financial transaction device from the person or possession of a deviceholder, or who knowingly retains, knowingly possesses, knowingly secretes, or knowingly uses a financial transaction device without the consent of the deviceholder, is guilty of a felony.  This crime carries a maximum possible punishment of up to 4 years in prison.
There are sophisticated financial transaction device crimes that involve devices that are fraudulently made or altered to duplicate a legitimate credit card, debit card, or gift card.  Under MCL 750.157n(2) a person who knowingly possesses a fraudulent or altered financial transaction device is guilty of a felony.  There is a market for selling, trading, or otherwise giving away financial transaction device.  According to MCL 750.157p a person who has in his or her possession, or under his or her control, or who receives from another person a financial transaction device with the intent to use, deliver, circulate, or sell the financial transaction device, or to permit, cause, or procure the financial transaction device to be used, delivered, circulated, or sold, knowing the possession, control, receipt, use, delivery, circulation, or sale to be without the consent of the deviceholder, is guilty of a felony.  The person who with intent to defraud, forges, materially alters, simulates, or counterfeits a financial transaction device is guilty of a felony under MCL 750.157r.  All of these crimes carry a maximum possible penalty of up to 4 years in prison.
There are circumstances when a person who is innocent is prosecuted for these offenses.  In some cases a person possesses a financial transaction device because of a dating relationship or because of work.  When the relationship ends poorly, or when the working relationship sours, this sometimes prompts a call to the police concerning the financial transaction device with a false allegation of misuse or misappropriation of the credit card.  In other instances, a person is duped into believing there is authority to use the credit card.  These types of cases can present viable defenses because there is not a knowing intent to misuse or misappropriate the financial transaction device.  Anexperienced criminal defense lawyer can help properly defend you when faced with offenses related to financial transaction devices.
It is recommended that you first exercise your right to remain silent and second hire an experienced criminal defense lawyer, such as the lawyers at Hilf & Hilf, PLC, as soon as possible if accused or after your arrest for crimes related to financial transaction devices for the following reasons:
1.  You have a better chance of receiving a reasonable bail or bond through effective legal representation;

2.  The experienced criminal defense lawyer can prepare the case for preliminary examination to work for possible dismissal, lay the groundwork for possible motions, 3. You need an experienced criminal defense lawyer to prepare and conduct the trial to give you the best chance of winning if you intend on going to trial.

3.  An experienced criminal defense lawyer can file motions and/or conducting evidentiary hearings, when appropriate, in order to: gain dismissal of charges; exclude improperly obtained statements from the Defendant; suppress evidence that was illegally seized; and/or challenge the ability of the prosecutor to introduce prior act testimony at trial. The ability to control the evidence introduced at trial can greatly improve the chances of ultimately gaining acquittal.

4.  If you plan to plead guilty to crimes related to financial transaction devices, the experienced criminal defense lawyer  can work to achieve the best result through possible plea bargains, possible Cobbs agreements, persuasive lawyering, proper scoring of the Michigan Sentence Guidelines, successful arguments concerning possible sentencing options such as HYTA – Holmes Youthful Trainee Act, MDOC SAI Bootcamp, drug and alcohol treatment.  Every case is different, and whether or not the factors in this paragraph apply depends upon your history, the facts of the allegation, the Prosecutor’s office, and the Judge assigned to the case.
Hiring the right criminal defense lawyer may be one of the most important decisions you make for yourself and your family. There are many lawyers who claim to do more than what they are able – just as there are many surgeons in the world that are no better than butchers. Do not settle for a legal hack job. Practicing law is a skill that develops over time with experience, commitment, dedication, and God given talent. There are no amateur attorneys at Hilf & Hilf, PLC – only professionals that are guided by the humanity in the individuals we serve, and the drive not to settle for what is easy over what is right.
Other less commonly prosecuted Financial Transaction Device Statutes include the following:
750.157s Use of revoked or cancelled financial transaction device with intent to defraud. (1) A person who, for the purpose of obtaining goods, property, services, or anything of value, knowingly and with intent to defraud uses 1 or more financial transaction devices that have been revoked or canceled by the issuer of the device or devices, as distinguished from expired, and has received notice of the revocation or cancellation is guilty of a crime as follows:
(a) If the value of the goods, property, services, or anything of value is less than $100.00, as follows:
(i) For a first offense, a misdemeanor punishable by imprisonment for not more than 93 days or a fine of not more than $500.00, or both.
(ii) For an offense following 1 or more prior convictions under this section or a local ordinance substantially corresponding to this section, a misdemeanor punishable by imprisonment for not more than 1 year or a fine of not more than $1,000.00, or both.
(b) If the value of the goods, property, services, or anything of value is $100.00 or more but less than $500.00, as follows:
(i) For a first or second offense, a misdemeanor punishable by imprisonment for not more than 1 year or a fine of not more than $1,000.00 or 3 times the aggregate value of the goods, property, services, or anything of value, whichever is greater, or both imprisonment and a fine.
(ii) For an offense following 2 or more prior convictions under this section, a felony punishable by imprisonment for not more than 2 years or a fine of not more than $2,000.00, or both. For purposes of this subparagraph, however, a prior conviction does not include a conviction for a violation or attempted violation of subdivision (a).
(c) If the value of the goods, property, services, or anything of value is $500.00 or more, a felony punishable by imprisonment for not more than 2 years or a fine of not more than $2,000.00 or 3 times the aggregate value of the goods, property, services, or anything of value, whichever is greater, or both imprisonment and a fine.
(2) The values of goods, property, services, or things of value obtained in separate incidents pursuant to a scheme or course of conduct within any 12-month period may be aggregated to determine the total value of goods, property, services, or things of value obtained.
(3) If the prosecuting attorney intends to seek an enhanced sentence based upon the defendant having 1 or more prior convictions, the prosecuting attorney shall include on the complaint and information a statement listing the prior conviction or convictions. The existence of the defendant’s prior conviction or convictions shall be determined by the court, without a jury, at sentencing or at a separate hearing for that purpose before sentencing. The existence of a prior conviction may be established by any evidence relevant for that purpose, including, but not limited to, 1 or more of the following:
(a) A copy of the judgment of conviction.
(b) A transcript of a prior trial, plea-taking, or sentencing.
(c) Information contained in a presentence report.(d) The defendant’s statement.
(4) If the sentence for a conviction under this section is enhanced by 1 or more prior convictions, those prior convictions shall not be used to further enhance the sentence for the conviction pursuant to section 10, 11, or 12 of chapter IX of the code of criminal procedure, 1927 PA 175, MCL 769.10, 769.11, and 769.12
750.157t Sales to or services performed for violators.  Any person who sells or delivers goods or property or anything of value, or renders any service to any other person knowing that such other person has committed or is committing any act prohibited by this chapter shall be guilty of a felony.

750.157u Causing deviceholder to be charged or overcharged.  A person to whom a deviceholder presents a financial transaction device for the purpose of obtaining goods, property, services, or anything of value on credit, or for any purpose for which the device may be used, who, by using the financial transaction device, by forging or aiding in the forgery of the deviceholder’s signature, or by filling out or completing an application or form to be furnished to the issuer of the financial transaction device, causes the deviceholder to be charged for a purchase or other transaction that was not authorized by the deviceholder, to be overcharged for a purchase or other transaction that was authorized by the deviceholder, or to otherwise incur a financial loss, is guilty of a felony.

750.157v False statement of identity for purpose of procuring issuance of financial transaction device.  A person who, knowingly and with intent to defraud, makes or causes to be made, directly or indirectly, a false statement in writing regarding his or her identity or that of any other person for the purpose of procuring the issuance of a financial transaction device, is guilty of a felony.

750.157w Fraudulent use of financial transaction device to withdraw or transfer funds in violation of contractual limitations.

(1) A person who knowingly and with intent to defraud uses a financial transaction device to withdraw or transfer funds from a deposit account in violation of the contractual limitations imposed on the amount or frequency of withdrawals or transfers or in an amount exceeding the funds then on deposit in the account is guilty of a crime as follows:

(a) A misdemeanor punishable by imprisonment for not more than 93 days or a fine of not more than $500.00 or 3 times the amount of funds withdrawn or transferred, whichever is greater, or both imprisonment and a fine, if the amount of the funds withdrawn or transferred is less than $200.00.

(b) A misdemeanor punishable by imprisonment for not more than 1 year or a fine of not more than $2,000.00 or 3 times the amount of funds withdrawn or transferred, whichever is greater, or both imprisonment and a fine, if any of the following apply:

(i) The amount of the funds withdrawn or transferred is $200.00 or more but less than $1,000.00.
(ii) The person violates subdivision (a) and has 1 or more prior convictions for committing or attempting to commit an offense under this section or a local ordinance substantially corresponding to this section.
(c) A felony punishable by imprisonment for not more than 5 years or a fine of not more than $10,000.00 or 3 times the amount of funds withdrawn or transferred, whichever is greater, or both imprisonment and a fine, if any of the following apply:
(i) The amount of the funds withdrawn or transferred is $1,000.00 or more but less than $20,000.00.
(ii) The person violates subdivision (b)(i) and has 1 or more prior convictions for committing or attempting to commit an offense under this section. For purposes of this subparagraph, however, a prior conviction does not include a conviction for a violation or attempted violation of subdivision (a) or (b)(ii).
(d) A felony punishable by imprisonment for not more than 10 years or a fine of not more than $15,000.00 or 3 times the amount of funds withdrawn or transferred, whichever is greater, or both imprisonment and a fine, if any of the following apply:
 (i) The amount of funds withdrawn or transferred is $20,000.00 or more.
(ii) The person violates subdivision (c)(i) and has 2 or more prior convictions for committing or attempting to commit an offense under this section. For purposes of this subparagraph, however, a prior conviction does not include a conviction for a violation or attempted violation of subdivision (a) or (b)(ii).
(2) The amounts of funds withdrawn or transferred in separate incidents pursuant to a scheme or course of conduct within any 12-month period may be aggregated to determine the total amount of funds withdrawn or transferred.
(3) If the prosecuting attorney intends to seek an enhanced sentence based upon the defendant having 1 or more prior convictions, the prosecuting attorney shall include on the complaint and information a statement listing the prior conviction or convictions. The existence of the defendant’s prior conviction or convictions shall be determined by the court, without a jury, at sentencing or at a separate hearing for that purpose before sentencing. The existence of a prior conviction may be established by any evidence relevant for that purpose, including, but not limited to, 1 or more of the following:
(a) A copy of the judgment of conviction.
(b) A transcript of a prior trial, plea-taking, or sentencing.
(c) Information contained in a presentence report.
(d) The defendant’s statement.
(4) If the sentence for a conviction under this section is enhanced by 1 or more prior convictions, those prior convictions shall not be used to further enhance the sentence for the conviction pursuant to section 10, 11, or 12 of chapter IX of the code of criminal procedure, 1927 PA 175, MCL 769.10, 769.11, and 769.12.
The laws referenced in this blog are always subject to change.  This blog is only intended for information purposes, and is not a substitute for the advice and representation of an experienced criminal defense lawyer.  For any criminal law issue it is recommended that you contact Attorney Daniel Hilf today.