1313
National Stolen Property ActSecurities
|
The definition of "securities" is set forth in 18 U.S.C. §
2311.
It is beneficial in understanding its scope to divide it into several
groupings.
Accordingly, the term "securities" includes:
- any note, stock certificate, bond, debenture,
check, draft, warrant, traveler's check, letter of credit, warehouse
receipt,
negotiable bill of lading, evidence of indebtedness;
- certificate of interest or participation in any profit-sharing
agreement, collateral-trust certificate, preorganization certificate or
subscription, transferable share, investment contract, voting-trust
certificate;
- valid or blank motor vehicle title;
- certificate of interest in property, tangible or intangible;
- instrument or document or writing evidencing ownership of goods,
wares,and merchandise, or transferring or assigning any right, title, or
interest
in or to goods, wares, and merchandise;
- in general, any instrument commonly known as a "security," or any
certificate of interest or participation in, temporary or interim
certificate
for, receipt for, warrant, or right to subscribe to or purchase any of the
foregoing; or
- any forged, counterfeited, or spurious representation of any of
the
foregoing.
Except for the change in 1984 relating to motor vehicle titles, the
definition has remained the same since its original enactment in 1934 when
the
National Stolen Property Act consisted of what is only the first paragraphs
of
present 18 U.S.C. §§ 2314 and 2315. The use of the word
"includes"
indicates the great breadth which should be given to the term. Group (g)
seems
to have been intended to relieve the government of any requirement to prove
that
the stolen securities were in fact genuine (e.g., a theft victim may have
been
holding unbeknownst to himself counterfeit or forged securities.)
Group (a) represents the forms of securities that are most commonly
encountered under 18 U.S.C. 2314 and 2315. The term "evidence of
indebtedness"
appears to be the most elastic but the courts have been reluctant to expand
its
scope to such things as credit card charge slips, United States v.
Canton,
470 F.2d 861 (2d Cir. 1972); airline tickets, United States v. Jones,
450
F.2d 523 (5th Cir. 1971); or department store scrip certificates, United
States v. Dunlap, 573 F.2d 1092 (9th Cir. 1978). Money orders, which
are not
specifically mentioned in the definition, are covered. United States v.
Rochon, 575 F.2d 191 (8th Cir. 1978); United States v. Buckles,
562
F.2d 967 (5th Cir. 1977). Sight drafts are deemed securities and, thus, are
covered. United States v. Bass, 562 F.2d 967 (5th Cir. 1977).
Therefore, the definition is not limited to securities normally
considered securities by the commercial and financial community and is
broader
than the definition of security under the Securities and Exchange Act (15
U.S.C.
§ 77b). For example, blank traveler's checks are securities because
they
have all the indicia of bearer instruments. See United States v.
Petti, 168 F.2d 221 (2d Cir. 1948); Peoples Savings Bank v. American
Surety Co., 15 F. Supp. 911 (W.D.Mich. 1936). By the 1984
amendment,
blank motor vehicle titles are now securities. As a general rule, most
other
blank forms for securities, however, are not in themselves securities.
See United States v. Jackson, 576 F.2d 749 (8th Cir.
1978)(blank
stock certificates are not securities). However, a blank form for a
security may
become a security, even though not fully filled out, when sufficient
attributes
of that type of instrument have been placed thereon. See United
States
v. Webb, 443 F.2d 308 (5th Cir. 1971)(unsigned payroll check); United
States v. Anderson, 359 F. Supp. 61 (D.Ark. 1973) (counterfeit corporate
bonds). The Department takes the position that a stolen or fraudulently
obtained
credit card is not a security. However, the misuse of such credit cards may
be
covered by 15 U.S.C. § 1644 or 18 U.S.C. §§ 1029, 1341
or 1344
(see USAM 9-43.100 and USAM 9-49.000 et seq.).
Under 18 U.S.C. §§ 2314 and 2315 a security, once it has
been
generated, must remain a security during the activity prohibited by these
sections. Hence, any cancellation or voiding of a security by the issuer or
its
agent, evidenced on the document itself, would terminate its status as a
"security." See United States v. Teresa, 420 F.2d 13 (4th
Cir.
1969).
Although there appears to be a split in authority, the safer rule
seems
to be that whether a particular document is a security under 18 U.S.C.
§§
2314 and 2315 is a factual question for the trier of fact and not a legal
question for the court. See United States v. Johnson,
718
F.2d 1317 (5th Cir. 1983)(en banc), reversing prior panel decision at 700
F.2d
163.
[cited in Criminal Resource Manual 1303; USAM 9-61.200; USAM 9-61.244] | |