A gift card stolen from a retail store counts the same as a stolen credit card for purposes of determining a criminal sentence, a federal appeals court in San Francisco ruled today.
The 9th U.S. Circuit Court of Appeals this morning upheld a 10-year sentence imposed in federal court in Sacramento last year for Timothy Truong, 44, for using cloned gift cards to hijack Wal-Mart gift card accounts.
When Truong was arrested in 2006 after a high-speed chase that began outside a Yuba City Wal-Mart, officers found 3,884 gift cards from nine retail stores, including Wal-Mart, in his Cadillac Escalade, the court said.
He pleaded guilty to the crime of fraudulent possession of 15 or more access devices. The term access device usually refers to credit cards, and the law on access device fraud is generally used in cases of stolen credit and ATM cards.
Prosecutors said Truong had an elaborate scheme to steal gift cards from stores, create duplicates and put the duplicates back in stores for customers to buy. He would then check the accounts online and spend down their balances before the rightful owners could do so.
Because Truong pleaded guilty, he could not appeal his conviction, but he appealed his sentence. He claimed the term “access device” did not apply to gift cards and that the wrong guidelines were used to calculate the loss caused by his crime.
But a three-judge panel of the appeals court said gift cards qualify as access devices because they provide access to store accounts.
The panel wrote, “What matters is that Truong’s stolen retail gift cards were a means of account access by which he obtained money, goods or services.”
Prosecutors said at the time of the sentencing that Truong had an extensive history of card fraud in six other states, dating back to 1992.
In sentencing him to the maximum 10-year term, U.S. District Judge Frank Damrell called Truong “a menace to society.”
