stipulated, defendants have not "fraudulently obtained" credit cards within the meaning of 15 U.S.C. §§ 1644(a) or (b).
The fallacy of the government's argument is that it confuses or equates "fraudulently obtained" and obtaining with "fraudulent intent." Fraudulent obtaining and fraudulent intent are two separate and distinct elements of this offense. The requirement of a false act distinct from a fraudulent intent is implicit in the texts of §§ 1644(a) and (b), which state "fraudulent intent" and "fraudulently obtained" as separate elements. It is an elementary rule of statutory construction that Congress would not have used different phrases had it not intended different meanings. See, Colautti v. Franklin, 439 U.S. 379, 392, 99 S. Ct. 675, 58 L. Ed. 2d 596 (1979).
Courts which have examined the meaning of "fraudulently obtained" in § 1644 have uniformly found some deceitful or false action by the obtainer with regard to the one from whom the card was actually obtained. United States v. Chapman, 591 F.2d 1287 (9th Cir. 1979) (false statements of financial status on application for credit cards); United States v. Kay, 545 F.2d 491 (5th Cir. 1977), cert. denied, 434 U.S. 833, 98 S. Ct. 119, 54 L. Ed. 2d 94 (1977) (defendant made false representations on applications for credit cards, including a false representation that he intended to pay for charges); United States v. Mikelberg, 517 F.2d 246 (5th Cir. 1975), cert. denied, 424 U.S. 909, 96 S. Ct. 1104, 47 L. Ed. 2d 313 (1976) (false information as to names, jobs, and the like given at time of application for cards by some defendants with knowledge of the other co-conspirators that cards were so obtained). In each of these cases, the card was fraudulently obtained by the cardholder directly from the issuer.
In cases where the card was obtained by third parties from the original cardholder, some deception of or theft from the original cardholder has been deemed necessary for conviction. In United States v. Lomax, 598 F.2d 582 (10th Cir. 1979), the third parties "surreptitiously obtained" or stole the credit card from the cardholder to whom it had been issued. In the only other case we have found considering a card obtained from a cardholder instead of an issuer, the court assumed no culpability under § 1644(b) if the defendant had not stolen the credit card but had been given it by a bona fide cardholder (even if the defendant had obtained the card from the cardholder with the intent not to pay the issuer for its use); United States v. Colyer, 571 F.2d 941 (5th Cir. 1978). The Court, holding that certain limitations imposed upon the defendant's cross-examination of a witness at trial constituted harmless error because the testimony would have been irrelevant, and affirming a conviction under 15 U.S.C. § 1644(b), stated "the crucial question" to be whether the defendant had been given the credit card or had stolen it; 571 F.2d, at 946-947 n.7.
Construction of a statute requires that the Court look first to the language of the statute to determine if there is any ambiguity. Where there is ambiguity in a criminal statute, doubts are resolved in favor of the defendant; Adamo Wrecking Co. v. United States, 434 U.S. 275, 98 S. Ct. 566, 54 L. Ed. 2d 538 (1978). It is not for the Court to expand the scope of a statute; criminal statutes are to be strictly construed and any ambiguity must be resolved in favor of lenity. United States v. Enmons, 410 U.S. 396, 399, 93 S. Ct. 1007, 35 L. Ed. 2d 379 (1973); Rewis v. United States, 401 U.S. 808, 812, 91 S. Ct. 1056, 28 L. Ed. 2d 493 (1971); United States v. Allen, 566 F.2d 1193, 1195 (3d Cir. 1977). As the Supreme Court stated in United States v. Maze,
(if) the Federal Government is to engage in combat against fraudulent schemes not covered by the statute, it must do so at the initiative of Congress and not of this Court.