BILL REQ. #: S-0146.5
| State of Washington | 58th Legislature | 2003 Regular Session |
Read first time 02/07/2003. Referred to Committee on Financial Services, Insurance & Housing.
AN ACT Relating to possession of instruments or equipment of financial fraud; amending RCW 9A.56.280, 9A.56.290, and 9A.60.020; reenacting and amending RCW 9A.82.010, 9.94A.515, and 9.94A.515; adding new sections to chapter 9A.56 RCW; prescribing penalties; providing an effective date; and providing an expiration date.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
NEW SECTION. Sec. 1 A new section is added to chapter 9A.56 RCW
to read as follows:
(1) A person is guilty of unlawful production of payment
instruments if he or she prints or produces a check or other payment
instrument in the name of a person or entity, or with the routing
number or account number of a person or entity, without the permission
of the person or entity to manufacture or reproduce such payment
instrument with such name, routing number, or account number.
(2) A person is guilty of unlawful possession of payment
instruments if he or she possesses two or more checks or other payment
instruments, alone or in combination:
(a) In the name of a person or entity, or with the routing number
or account number of a person or entity, without the permission of the
person or entity to possess such payment instrument; or
(b) In the name of a fictitious person or entity, or with a
fictitious routing number or account number of a person or entity, with
intent to use the payment instruments to commit a crime.
(3) A person is guilty of unlawful possession of a personal
identification device if the person possesses a personal identification
device with intent to use such device to commit a crime. "Personal
identification device" includes any machine or instrument whose purpose
is to manufacture or print any driver's license or identification card
issued by any state or the federal government, or any employee
identification issued by any employer, public or private, including but
not limited to badges and identification cards, or any credit or debit
card.
(4) A person is guilty of unlawful possession of fictitious
identification if the person possesses a personal identification card
with a fictitious person's identification with intent to use such
identification card to commit a crime, when the possession does not
amount to a violation of RCW 9.35.020.
(5) A person is guilty of unlawful possession of instruments of
financial fraud if the person possesses a check-making machine,
equipment, or software, with intent to use or distribute checks for
purposes of defrauding an account holder, business, financial
institution, or any other person or organization.
(6) This section does not apply to:
(a) A person, business, or other entity, who has lawful possession
of a check, which is endorsed to that person, business, or other
entity; and
(b) A financial institution or other entity that processes checks
for a lawful business purpose;
(c) A person who obtains another person's personal identification
for the sole purpose of misrepresenting his or her age; and
(d) A law enforcement agency that produces or displays counterfeit
credit or debit cards, checks or other payment instruments, or personal
identification devices for investigative or educational purposes.
(7) In a proceeding under this section that is related to an
identity theft under RCW 9.35.020, the crime will be considered to have
been committed in any locality where the person whose means of
identification or financial information was appropriated resides, or in
which any part of the offense took place, regardless of whether the
defendant was ever actually in that locality.
(8) A violation of this section is a class C felony.
NEW SECTION. Sec. 2 A new section is added to chapter 9A.56 RCW
to read as follows:
(1) A person is guilty of possession of another's identification if
the person possesses personal identification bearing another person's
identity, when the person possessing the personal identification does
not have the other person's permission to possess it, and when the
possession does not amount to a violation of RCW 9.35.020.
(2) This section does not apply to:
(a) A person who obtains another person's personal identification
for the sole purpose of misrepresenting his or her age; and
(b) A law enforcement agency that produces or displays counterfeit
credit or debit cards, checks or other payment instruments, or personal
identification for investigative or educational purposes.
(3) In a proceeding under this section that is related to an
identity theft under RCW 9.35.020, the crime will be considered to have
been committed in any locality where the person whose means of
identification or financial information was appropriated resides, or in
which any part of the offense took place, regardless of whether the
defendant was ever actually in that locality.
(4) A violation of this section is a gross misdemeanor.
Sec. 3 RCW 9A.56.280 and 1993 c 484 s 1 are each amended to read
as follows:
As used in RCW 9A.56.280 ((and)), 9A.56.290, 9A.60.020, and
sections 1 and 2 of this act, unless the context requires otherwise:
(1) "Cardholder" means a person to whom a credit card is issued or
a person who otherwise is authorized to use a credit card.
(2) "Check" means a negotiable instrument that meets the definition
of "check" under RCW 62A.3-104 or a blank form instrument that would
meet the definition of "check" under RCW 62A.3-104 if it were completed
and signed.
(3) "Credit card" means a card, plate, booklet, credit card number,
credit card account number, or other identifying symbol, instrument, or
device that can be used to pay for, or to obtain on credit, goods or
services.
(((3))) (4) "Credit card transaction" means a sale or other
transaction in which a credit card is used to pay for, or to obtain on
credit, goods or services.
(((4))) (5) "Credit card transaction record" means a record or
evidence of a credit card transaction, including, without limitation,
a paper, sales draft, instrument, or other writing and an electronic or
magnetic transmission or record.
(((5))) (6) "Debit card" means a card used to obtain goods or
services by a transaction that debits the cardholder's account, rather
than extending credit.
(7) "Financial information" means financial information as defined
in RCW 9.35.005.
(8) "Financial institution" means a bank, trust company, mutual
savings bank, savings and loan association, or credit union authorized
under state or federal law to do business and accept deposits in
Washington.
(((6))) (9) "Means of identification" means means of identification
as defined in RCW 9.35.005.
(10) "Merchant" means a person authorized by a financial
institution to honor or accept credit cards in payment for goods or
services.
(((7))) (11) "Person" means an individual, partnership,
corporation, trust, or unincorporated association, but does not include
a financial institution or its authorized employees, representatives,
or agents.
(12) "Personal identification" includes any document, card, or
other item that contains a means of identification.
Sec. 4 RCW 9A.56.290 and 1993 c 484 s 2 are each amended to read
as follows:
(1) A person commits the crime of unlawful factoring of a credit
card transaction if the person, with intent to commit fraud or theft
against a cardholder, credit card issuer, or financial institution,
causes any such party or parties to suffer actual monetary damages that
in the aggregate exceed one thousand dollars, by:
(a) Presenting to or depositing with, or causing another to present
to or deposit with, a financial institution for payment a credit card
transaction record that is not the result of a credit card transaction
between the cardholder and the person;
(b) Employing, soliciting, or otherwise causing a merchant or an
employee, representative, or agent of a merchant to present to or
deposit with a financial institution for payment a credit card
transaction record that is not the result of a credit card transaction
between the cardholder and the merchant; or
(c) Employing, soliciting, or otherwise causing another to become
a merchant for purposes of engaging in conduct made unlawful by this
section.
(2) Normal transactions conducted by or through airline reporting
corporation-appointed travel agents or cruise-only travel agents
recognized by passenger cruise lines are not considered factoring for
the purposes of this section.
(3) In a proceeding under this section that is related to an
identity theft under RCW 9.35.020, the crime will be considered to have
been committed in any locality where the person whose means of
identification or financial information was appropriated resides, or in
which any part of the offense took place, regardless of whether the
defendant was ever actually in that locality.
(4) Unlawful factoring of a credit card transaction is a class C
felony.
Sec. 5 RCW 9A.60.020 and 1975-'76 2nd ex.s. c 38 s 13 are each
amended to read as follows:
(1) A person is guilty of forgery if, with intent to injure or
defraud:
(a) He falsely makes, completes, or alters a written instrument or;
(b) He possesses, utters, offers, disposes of, or puts off as true
a written instrument which he knows to be forged.
(2) In a proceeding under this section that is related to an
identity theft under RCW 9.35.020, the crime will be considered to have
been committed in any locality where the person whose means of
identification or financial information was appropriated resides, or in
which any part of the offense took place, regardless of whether the
defendant was ever actually in that locality.
(3) Forgery is a class C felony.
Sec. 6 RCW 9A.82.010 and 2001 c 222 s 3 and 2001 c 217 s 11 are
each reenacted and amended to read as follows:
Unless the context requires the contrary, the definitions in this
section apply throughout this chapter.
(1)(a) "Beneficial interest" means:
(i) The interest of a person as a beneficiary under a trust
established under Title 11 RCW in which the trustee for the trust holds
legal or record title to real property;
(ii) The interest of a person as a beneficiary under any other
trust arrangement under which a trustee holds legal or record title to
real property for the benefit of the beneficiary; or
(iii) The interest of a person under any other form of express
fiduciary arrangement under which one person holds legal or record
title to real property for the benefit of the other person.
(b) "Beneficial interest" does not include the interest of a
stockholder in a corporation or the interest of a partner in a general
partnership or limited partnership.
(c) A beneficial interest is considered to be located where the
real property owned by the trustee is located.
(2) "Control" means the possession of a sufficient interest to
permit substantial direction over the affairs of an enterprise.
(3) "Creditor" means a person making an extension of credit or a
person claiming by, under, or through a person making an extension of
credit.
(4) "Criminal profiteering" means any act, including any
anticipatory or completed offense, committed for financial gain, that
is chargeable or indictable under the laws of the state in which the
act occurred and, if the act occurred in a state other than this state,
would be chargeable or indictable under the laws of this state had the
act occurred in this state and punishable as a felony and by
imprisonment for more than one year, regardless of whether the act is
charged or indicted, as any of the following:
(a) Murder, as defined in RCW 9A.32.030 and 9A.32.050;
(b) Robbery, as defined in RCW 9A.56.200 and 9A.56.210;
(c) Kidnapping, as defined in RCW 9A.40.020 and 9A.40.030;
(d) Forgery, as defined in RCW 9A.60.020 and 9A.60.030;
(e) Theft, as defined in RCW 9A.56.030, 9A.56.040, 9A.56.060, and
9A.56.080;
(f) Unlawful sale of subscription television services, as defined
in RCW 9A.56.230;
(g) Theft of telecommunication services or unlawful manufacture of
a telecommunication device, as defined in RCW 9A.56.262 and 9A.56.264;
(h) Child selling or child buying, as defined in RCW 9A.64.030;
(i) Bribery, as defined in RCW 9A.68.010, 9A.68.020, 9A.68.040, and
9A.68.050;
(j) Gambling, as defined in RCW 9.46.220 and 9.46.215 and 9.46.217;
(k) Extortion, as defined in RCW 9A.56.120 and 9A.56.130;
(l) Unlawful production of payment instruments, unlawful possession
of payment instruments, unlawful possession of a personal
identification device, unlawful possession of fictitious
identification, or unlawful possession of instruments of financial
fraud, as defined in section 1 of this act;
(m) Extortionate extension of credit, as defined in RCW 9A.82.020;
(((m))) (n) Advancing money for use in an extortionate extension of
credit, as defined in RCW 9A.82.030;
(((n))) (o) Collection of an extortionate extension of credit, as
defined in RCW 9A.82.040;
(((o))) (p) Collection of an unlawful debt, as defined in RCW
9A.82.045;
(((p))) (q) Delivery or manufacture of controlled substances or
possession with intent to deliver or manufacture controlled substances
under chapter 69.50 RCW;
(((q))) (r) Trafficking in stolen property, as defined in RCW
9A.82.050;
(((r))) (s) Leading organized crime, as defined in RCW 9A.82.060;
(((s))) (t) Money laundering, as defined in RCW 9A.83.020;
(((t))) (u) Obstructing criminal investigations or prosecutions in
violation of RCW 9A.72.090, 9A.72.100, 9A.72.110, 9A.72.120, 9A.72.130,
9A.76.070, or 9A.76.180;
(((u))) (v) Fraud in the purchase or sale of securities, as defined
in RCW 21.20.010;
(((v))) (w) Promoting pornography, as defined in RCW 9.68.140;
(((w))) (x) Sexual exploitation of children, as defined in RCW
9.68A.040, 9.68A.050, and 9.68A.060;
(((x))) (y) Promoting prostitution, as defined in RCW 9A.88.070 and
9A.88.080;
(((y))) (z) Arson, as defined in RCW 9A.48.020 and 9A.48.030;
(((z))) (aa) Assault, as defined in RCW 9A.36.011 and 9A.36.021;
(((aa))) (bb) Assault of a child, as defined in RCW 9A.36.120 and
9A.36.130;
(((bb))) (cc) A pattern of equity skimming, as defined in RCW
61.34.020;
(((cc))) (dd) Commercial telephone solicitation in violation of RCW
19.158.040(1);
(((dd))) (ee) Trafficking in insurance claims, as defined in RCW
48.30A.015;
(((ee))) (ff) Unlawful practice of law, as defined in RCW 2.48.180;
(((ff))) (gg) Commercial bribery, as defined in RCW 9A.68.060;
(((gg))) (hh) Health care false claims, as defined in RCW
48.80.030;
(((hh))) (ii) Unlicensed practice of a profession or business, as
defined in RCW 18.130.190(7);
(((ii))) (jj) Improperly obtaining financial information, as
defined in RCW 9.35.010; or
(((jj))) (kk) Identity theft, as defined in RCW 9.35.020.
(5) "Dealer in property" means a person who buys and sells property
as a business.
(6) "Debtor" means a person to whom an extension of credit is made
or a person who guarantees the repayment of an extension of credit or
in any manner undertakes to indemnify the creditor against loss
resulting from the failure of a person to whom an extension is made to
repay the same.
(7) "Documentary material" means any book, paper, document,
writing, drawing, graph, chart, photograph, phonograph record, magnetic
tape, computer printout, other data compilation from which information
can be obtained or from which information can be translated into usable
form, or other tangible item.
(8) "Enterprise" includes any individual, sole proprietorship,
partnership, corporation, business trust, or other profit or nonprofit
legal entity, and includes any union, association, or group of
individuals associated in fact although not a legal entity, and both
illicit and licit enterprises and governmental and nongovernmental
entities.
(9) "Extortionate extension of credit" means an extension of credit
with respect to which it is the understanding of the creditor and the
debtor at the time the extension is made that delay in making repayment
or failure to make repayment could result in the use of violence or
other criminal means to cause harm to the person, reputation, or
property of any person.
(10) "Extortionate means" means the use, or an express or implicit
threat of use, of violence or other criminal means to cause harm to the
person, reputation, or property of any person.
(11) "Financial institution" means any bank, trust company, savings
and loan association, savings bank, mutual savings bank, credit union,
or loan company under the jurisdiction of the state or an agency of the
United States.
(12) "Pattern of criminal profiteering activity" means engaging in
at least three acts of criminal profiteering, one of which occurred
after July 1, 1985, and the last of which occurred within five years,
excluding any period of imprisonment, after the commission of the
earliest act of criminal profiteering. In order to constitute a
pattern, the three acts must have the same or similar intent, results,
accomplices, principals, victims, or methods of commission, or be
otherwise interrelated by distinguishing characteristics including a
nexus to the same enterprise, and must not be isolated events.
However, in any civil proceedings brought pursuant to RCW 9A.82.100 by
any person other than the attorney general or county prosecuting
attorney in which one or more acts of fraud in the purchase or sale of
securities are asserted as acts of criminal profiteering activity, it
is a condition to civil liability under RCW 9A.82.100 that the
defendant has been convicted in a criminal proceeding of fraud in the
purchase or sale of securities under RCW 21.20.400 or under the laws of
another state or of the United States requiring the same elements of
proof, but such conviction need not relate to any act or acts asserted
as acts of criminal profiteering activity in such civil action under
RCW 9A.82.100.
(13) "Real property" means any real property or interest in real
property, including but not limited to a land sale contract, lease, or
mortgage of real property.
(14) "Records" means any book, paper, writing, record, computer
program, or other material.
(15) "Repayment of an extension of credit" means the repayment,
satisfaction, or discharge in whole or in part of a debt or claim,
acknowledged or disputed, valid or invalid, resulting from or in
connection with that extension of credit.
(16) "Stolen property" means property that has been obtained by
theft, robbery, or extortion.
(17) "To collect an extension of credit" means to induce in any way
a person to make repayment thereof.
(18) "To extend credit" means to make or renew a loan or to enter
into an agreement, tacit or express, whereby the repayment or
satisfaction of a debt or claim, whether acknowledged or disputed,
valid or invalid, and however arising, may or shall be deferred.
(19) "Traffic" means to sell, transfer, distribute, dispense, or
otherwise dispose of stolen property to another person, or to buy,
receive, possess, or obtain control of stolen property, with intent to
sell, transfer, distribute, dispense, or otherwise dispose of the
property to another person.
(20)(a) "Trustee" means:
(i) A person acting as a trustee under a trust established under
Title 11 RCW in which the trustee holds legal or record title to real
property;
(ii) A person who holds legal or record title to real property in
which another person has a beneficial interest; or
(iii) A successor trustee to a person who is a trustee under (a)(i)
or (ii) of this subsection.
(b) "Trustee" does not mean a person appointed or acting as:
(i) A personal representative under Title 11 RCW;
(ii) A trustee of any testamentary trust;
(iii) A trustee of any indenture of trust under which a bond is
issued; or
(iv) A trustee under a deed of trust.
(21) "Unlawful debt" means any money or other thing of value
constituting principal or interest of a debt that is legally
unenforceable in the state in full or in part because the debt was
incurred or contracted:
(a) In violation of any one of the following:
(i) Chapter 67.16 RCW relating to horse racing;
(ii) Chapter 9.46 RCW relating to gambling;
(b) In a gambling activity in violation of federal law; or
(c) In connection with the business of lending money or a thing of
value at a rate that is at least twice the permitted rate under the
applicable state or federal law relating to usury.
Sec. 7 RCW 9.94A.515 and 2002 c 340 s 2, 2002 c 324 s 2, 2002 c
290 s 2, 2002 c 253 s 4, 2002 c 229 s 2, 2002 c 134 s 2, and 2002 c 133
s 4 are each reenacted and amended to read as follows:
| TABLE 2 | ||
| CRIMES INCLUDED WITHIN EACH SERIOUSNESS LEVEL | ||
| XVI | ||
| XV | ||
| XIV | ||
| XIII | ||
| XII | ||
| XI | ||
| X | ||
| IX | ||
| VIII | ||
| VII | ||
| VI | ||
| V | ||
| IV | ||
| III | ||
| II | ||
| I | ||
Sec. 8 RCW 9.94A.515 and 2002 c 340 s 2, 2002 c 324 s 2, 2002 c
290 s 7, 2002 c 253 s 4, 2002 c 229 s 2, 2002 c 134 s 2, and 2002 c 133
s 4 are each reenacted and amended to read as follows:
| TABLE 2 | ||
| CRIMES INCLUDED WITHIN EACH SERIOUSNESS LEVEL | ||
| XVI | ||
| XV | ||
| XIV | ||
| XIII | ||
| XII | ||
| XI | ||
| X | ||
| IX | ||
| VIII | ||
| VII | ||
| VI | ||
| V | ||
| IV | ||
| III | ||
| Escape 2 (RCW 9A.76.120) | ||
| II | ||
| I | ||
NEW SECTION. Sec. 9 Section 7 of this act expires July 1, 2004.
NEW SECTION. Sec. 10 Section 8 of this act takes effect July 1,
2004.