Deception Without Financial Loss: The Eleventh Circuit Clarifies “Intent to Defraud” under 18 U.S.C. § 1029(a)(1)

Introduction

In United States v. Alfred Davis, the Eleventh Circuit confronted a familiar white-collar crime—use of a counterfeit access device—but in an unusual factual posture: the defendant paid his rent in full and caused no direct monetary loss to anyone. Despite that, a jury found him guilty of violating 18 U.S.C. § 1029(a)(1) after he used a counterfeit driver’s licence to pass condominium background checks.

Davis appealed on four grounds: (1) insufficiency of the evidence on the “intent to defraud” element, (2) faulty jury instructions on that element, (3) improper admission of a prior similar act under Rule 404(b), and (4) improper admission of two prior convictions. The Eleventh Circuit (Judges Rosenbaum, Newsom, and Marcus, per curiam) affirmed across the board.

Key Issue:

Whether “intent to defraud” under § 1029(a)(1) requires a contemplated financial loss or gain—i.e., “cheating” in addition to “deception.”

Summary of the Judgment

The Court made four principal rulings:

Sufficiency of the evidence. “Intent to defraud” means intent “to deceive or cheat”; no financial loss or gain is required. Davis’s false identity, which enabled him to obtain something of value (residency approval), satisfied the element.
Jury instructions. The pattern instruction—defining intent to defraud as intent to deceive or cheat “usually” for financial gain or to inflict loss—accurately stated the law; Davis’s requested “deceive and cheat” instruction misstated it.
Rule 404(b) evidence. The 2018 application for another unit with the same counterfeit licence was admissible both as intrinsic evidence and, alternatively, under Rule 404(b) to prove identity and modus operandi; its probative value outweighed any prejudice.
Prior convictions. Certified copies of Davis’s 2004 federal and 2011 state convictions were properly authenticated under Rules 901/902 and relevant to establish the accuracy of the background-check testimony.

Analysis

1. Precedents Cited and Their Influence

United States v. Klopf, 423 F.3d 1128 (11th Cir. 2005) — The linchpin. Klopf interpreted “intent to defraud” in § 1029(a)(2) as intent “to deceive or cheat.” The panel extends that interpretation to § 1029(a)(1), emphasizing the provisions’ “parallel nature.”
United States v. Saini, 23 F.4th 1155 (9th Cir. 2022) — Cited by Davis for a stricter “deceive and cheat” reading. The Eleventh Circuit found Saini merely persuasive and unavailing; even under Saini, Davis deceived someone into transferring valuable property rights (a leasehold).
Other Eleventh Circuit authority (e.g., Clay, Holmes, Edouard, Kapordelis) — Applied for standard-of-review, Rule 404(b)/403 analysis, and evidentiary authentication.

2. The Court’s Legal Reasoning

a. Meaning of “Intent to Defraud.”

Textual foundation: § 1029(e)(1) covers devices enabling the obtaining of “money, goods, services, or any other thing of value.” The breadth of “thing of value” undercuts a financial-loss requirement.
Precedent synthesis: Because Klopf used the disjunctive “or,” the panel holds it would be incoherent to read “intent to defraud” differently in § 1029(a)(1).
Application: The background-check “green light” was itself a valuable benefit; Davis deceived the condominium board, satisfying the element regardless of rent payments.

b. Jury Instruction.

The pattern instruction’s qualifier—“usually for personal financial gain or to cause financial loss”—leaves room for non-pecuniary deception; that flexibility mirrors statutory text and Klopf.
Davis’s proposed “deceive and cheat” instruction would have impermissibly narrowed the statute.

c. Rule 404(b) Evidence.

Intrinsic vs. extrinsic: The panel hints the 2018 act was intrinsic because it “completed the story.”
Edouard three-part test: High similarity (same name, same licence, same building); reasonable temporal proximity (5 years not excessive); government’s identity need great; Rule 403 balance favored admission, bolstered by a limiting instruction.

d. Authentication of Prior Convictions.

Self-authenticating under Rule 902(4) (certified public records) and circumstantially authenticated via FBI agent’s testimony under Rule 901.
No fingerprint match required; “some competent evidence” suffices.

3. Impact of the Decision

Broadens prosecutorial reach. Prosecutors in the Eleventh Circuit can now rely on deception alone, even if the defendant ultimately pays or causes no monetary loss, so long as the deception secures “any thing of value.”
Alignment with Pattern Jury Instructions. The court’s express approval of the pattern language provides clarity and shields trial courts using it.
Guidance on Rule 404(b). The opinion re-emphasises that nearly identical prior uses of the very same fraudulent device are admissible to prove identity and modus operandi, even if years apart.
Authentication relaxed. Reinforces that certified court judgments plus circumstantial linking testimony are enough; fingerprint evidence is unnecessary.

Complex Concepts Simplified

Access Device. Anything—card, code, driver’s licence—that lets someone obtain money or services. A fake ID qualifies.
Intent to Defraud. The mental state of meaning to trick someone. In the Eleventh Circuit, it’s enough to want to deceive; you don’t also have to plan to steal money.
Intrinsic vs. Extrinsic Evidence. Intrinsic evidence is part of the story of the charged crime itself; extrinsic evidence is separate but might show things like motive. Only the latter is limited by Rule 404(b).
Rule 404(b). Bars using prior bad acts merely to show the defendant’s bad character, but allows them for identity, intent, plan, etc.
Self-Authenticating Document. A document that “proves itself” (e.g., a sealed court judgment) without extra testimony.

Conclusion

United States v. Alfred Davis cements an expansive reading of “intent to defraud” for access-device fraud: deception alone, without any intended or actual financial harm, suffices when the defendant obtains a valuable benefit. By harmonising § 1029(a)(1) with Klopf’s reading of § 1029(a)(2), the Eleventh Circuit forecloses defence arguments premised on the absence of monetary loss and validates the existing pattern jury instruction. The ruling also offers authoritative guidance on Rule 404(b) admissibility and evidence authentication, further arming prosecutors and trial courts in white-collar cases. Going forward, defendants in the Eleventh Circuit can expect little refuge in arguments that they “paid the bill”; when deception paves the way, liability under § 1029(a)(1) follows.