Conviction for possessing "credit card skimmer" was reversed

A person convicted of credit card-related fraud may face severe penalties including possible jail time, as well as having the future burden of a criminal record.

However, fraud cases and the evidence around them can be very complex. If law enforcement fails to make their case, or even if a trial court makes in error in how the proceedings are handled, a conviction might be avoided or reversed. The Texas Court of Appeals case of Ramirez-Memije v. State provides an example.

Transporting an unknown device

The defendant had been transporting a device that looked like a walkie-talkie or recorder between one man and another man who worked as a waiter. He said he did not know what sort of device it was and he had no software that could look at the data on the device.

One day, when he picked up the device from the waiter, he was arrested for participating in an illegal credit card skimming scheme. A credit card "skimmer" device stores information obtained from the magnetic strip on a credit card and the waiter had allegedly been skimming the credit cards of his customers.

The defendant maintained that he did not know what was on the device. Although a law enforcement agent testified that a person could scroll through the skimmer to check the information obtained, the agent never saw the defendant look at the information on the skimmer.

The defendant was convicted of "fraudulent possession of ten or more but less than 50 items of identifying information" under a Texas law related to fraudulent use or possession of identifying information. The defendant appealed his conviction.

Knowing possession of credit card information?

On appeal, the defendant argued that the trial court erred in refusing to provide the jury with an instruction regarding the defendant's "voluntary conduct." The defendant alleged that the evidence raised the issue of voluntary conduct, since he was unaware the skimmer contained identifying information. Under the applicable Texas statute, possession is a voluntary act only if the defendant knowingly obtains or receives the item.

The Texas Court of Appeals held that, although the defendant knowingly had possession of the skimmer, the key "thing possessed" in this case was the identifying information contained on the skimmer. The agent even testified that it was not illegal to possess the skimmer itself.

Therefore, the defendant was entitled to a jury instruction at his criminal trial, where the evidence raised the issue of whether he knowingly received the identifying information itself. The jury should have been instructed on the issue of possession. The defendant suffered some harm from this at his trial, and the refusal of the trial court to submit the jury instruction prevented him from presenting his defense. Thus, the trial court's judgment against the defendant was reversed.

Finance and accounting knowledge

If you or a loved one has been accused of fraud of some sort, you should seek out an experienced criminal defense attorney with a strong knowledge of finance and accounting. Such an attorney will be in an extremely strong position to protect your rights based on the individual circumstances of your case and be able to provide you with the tenacious defense you deserve.