Defendant overdrew his account and received an explanation from a teller that his account would be closed by the date of the next bank statement unless he deposited money. When defendant did not put money into the account, it was closed as promised. The bank believed his account to be closed and his atm card disabled. Defendant found out that his old atm card could be used to take out cash at local stores. There was an error in the card verification system implemented by Wells Fargo, which allowed his withdrawals to continue. At the time of arrest, defendant admitted to having known his atm account was closed. He continuously withdrew cash and was convicted on four counts of grand theft by false pretenses.
Theft by false pretenses: “every person who knowingly and designedly, by any false or fraudulent representation or pretense, defrauds any other person of money, labor, or property, whether real or personal.”
Whether the element of reliance on the false representation is satisfied where the defendant’s atm card is verified by a 3rd party verification system and the victim relies on this 3rd party verification.
No. Defendant falsely represented the validity of his card when he presented it to the store. Defendant argues that the store relied on the verification system, not his misrepresentation. Evidence shows, however, that when defendant swiped his card there was a non-response from Wells Fargo verification, which in turn gives a “stand in” response. The stand in response simply tells the store that it will verify at a later date, but that no decision regarding verification has been made, because verification is taking too long. At that point it’s the store’s managerial decision to grant the cash or not. The stores at issue decided to grant the cash. The store did not rely on Wells Fargo’s misrepresentation. Instead, they relied on the defendant’s misrepresentation in order to grant the cash. The store “had nothing to rely upon except defendant’s implicit representation that his atm card was valid.”