IOWA V. BERG
We have another Iowa Supreme Court opinion that needs some discussion. I know that what the Supreme Court says is the law of the State, but discussion isn't necessarily forbidden simply because the Supreme Court has made a pronouncement. This case appears to be another of those instances which require some additional attention.
We have an employee of Casey's who authorized some gift cards to herself without paying for them. She was originally charged with theft in the 4th degree (stealing more than $300). She used the Casey's card to buy some gas and groceries at her place of employment (Casey's) the next day; it was her employer's gift card. The State did not file the required trial information in time and the case was dismissed. Having no intention of not prosecuting a citizen when given the chance, the State filed the charge of unauthorized use of a credit card.
Now the crime under which Ms. Berg was charged the second time is found at 715A.6(1)(a)(3) of the Iowa Code: "A person commits a public offense by using a credit card for the purpose of obtaining property or services with knowledge of any of the following: (1) The credit card is stolen or forged or (3) For any other reason the use of the credit card is unauthorized. She used the credit card the next day for a purchase of $59.67. She issued three gift cards to herself for a total of $700.
The Court said she couldn't be prosecuted for 4th degree theft because you have to steal more than $300 for that charge (even though people are convicted of lesser included offenses all the time). So the State was simply out of luck on that one. It would seem to me, that by stating it in this manner, the court is acquiescing in the view that Ms. Berg stole $59.67. The cards issued were a Casey's card for $75, a Visa card for $200, and an Amazon card for $425. Only the Casey's card was used.
Just how do gift cards work? I can only assume that when a person buys a gift card from Casey's, Casey's receives the payment and then transfers that amount digitally less any fee for the sale to the issuer of the card. This would have occurred in two of the instances, both not used. The Casey's card, apparently, was used to purchase the gas and groceries at Casey's. Again, one would assume, that at the point that Casey's transfers $200 to Visa and $425 to Amazon, Casey's is out $625 less fees. Casey's has at that point lost $625 without reimbursement. These transactions presumably are done automatically via algorithms. Presumably, again, once it is determined that the gift cards were issued without payment, Visa and Amazon are notified and cancel the cards and return the money to Casey's, again by some algorithm automatically. The $625 has been returned. Interestingly, Casey's would have been out $625 whether the gift cards for Visa and Amazon were used or not and Ms. Berg would not have committed a crime by issuing them to herself without ever using them.
Now the gas and groceries were obviously obtained from Casey's without payment; i.e., a theft. But apparently the Supreme Court says not, even though they make the statement that the 4th degree theft charge couldn't stand anyway because she only used it to purchase $59.67 worth of merchandise. The Casey's gift card was authorized and used the next day. The theft, it would seem to me, occurred the next day when Ms. Berg used the Casey's card to purchase $59.67 worth of gas and groceries at Casey's - - a simple misdemeanor. Clearly Casey's was not harmed in any way when Ms. Berg authorized the Casey's gift card to herself without payment. Casey's was only at a loss when the card was used, contrary to what would have been the case with the issuance of the cards to Visa and Amazon. This raises another issue not addressed by the court: How do we determine the card was stolen or unauthorized?
Casey's cards belong to Casey's but this is not the theft alleged. Section 715.6(2)(c) provides that it is the amount of "property . . . sought to be secured by the credit card" that is determinative of the level of crime. So one doesn't actually have to use the amount of the card to commit the level of crime: Class C Felony, Class D Felony, Aggravated Misdemeanor. One only has to use the card: $1 will suffice even if the card had been issued for $1,499 (anything under $1,500 being an aggravated misdemeanor). If she would have authorized the Casey's card for more than $10,000 it would have been a Class C Felony, over $1,500 it would have been a Class D Felony, again, even if she would have used them for only a $1 purchase. If Ms. Berg had used each of the three gift cards she did issue to herself to make purchases of $1 each, she would be facing six years in prison for a $3 theft. If, for the higher amounts,15 years in prison for Class D Felonies, and 30 years in prison for Class C Felonies.
Apparently, intent is now a crime; especially when dealing with gift cards. If I authorize a gift card to myself in the amount of $75 without paying for it, clearly I am intending on using it to purchase $75 worth of merchandise without having shelled out the $75 for the purchase of the gift card - - normally a simple misdemeanor. But because I used this gift card which I didn't pay for (but authorized) in the amount of $75, I have committed an aggravated misdemeanor subject to two years in prison rather than a simple misdemeanor subject to 30 days in jail.
I'm not the Supreme Court of Iowa, but it would seem to me that the Court may want to give this situation a little more thought even though Justice Oxley wrote the opinion and all other justices joined in it, it seems to miss the crux of the matter. Simply because you used your employer's gift card to steal $59.67 worth of merchandise from your employer rather than take it out of the cash register, it is an aggravated misdemeanor rather than a simple misdemeanor. Something is askew here. Apparently it depends on how you steal something rather than how much you steal that determines the punishment you face.
Richard E H Phelps II
Mingo
