Like a growing number of schools, hospitals, businesses, and other organizations around the country, UNC announced last week that all students and employees returning to campus would be required either to provide proof that they have been vaccinated against COVID-19 or agree to participate in weekly testing for the virus. For an update on other entities that are currently implementing similar mandates, their legal authority for taking such steps, and the status of some early court challenges to these measures, Jill Moore’s recent civil blog post on those topics is a great resource.
Rather than getting vaccinated or agreeing to be tested, some people have resorted to purchasing and submitting fake vaccination cards to their school or employer. Organizations like UNC have their own disciplinary procedures to address this kind of noncompliance or fraud, but I’ve had several people ask me recently whether it’s also a crime to possess or use one of these fake cards under North Carolina law, and if so what’s the offense?
Possessing or using a fraudulent COVID-19 vaccination card can be a crime under federal law or the laws of some other states, and there have been a handful of prosecutions for violations of those statutes. Under North Carolina law, it’s less clear to me that the possession of such a card, standing alone, would be a crime — but submitting or using the card for a fraudulent purpose might be.
Violation of Federal Law
There are at least two different federal laws that may be violated by possessing or using a fake vaccination card, and federal prosecutors have recently begun bringing charges against people who violate them.
First, as explained in this public service announcement from the FBI, most fake cards contain a reproduction of the official seal of the CDC or DHHS, and the unauthorized use of that seal is a violation of 18 U.S.C. 1017. This federal statute makes it a crime to wrongfully or fraudulently affix the seal of any federal department or agency to a certificate, document, or paper, and likewise makes it a crime to use, buy, sell, or transfer such a document knowing that it’s fraudulent. A violation of this statute is punishable by a fine or imprisonment of up to five years.
Second, if the card is fraudulently used in connection with the delivery of or payment for any “health care benefits, items, or services,” it also may be a violation of 18 U.S.C. 1035, which carries a similar potential punishment up to five years imprisonment. Health care benefits are defined by 18 U.S.C. 24(b) as “any public or private plan or contract, affecting commerce, under which any medical benefit, item, or service is provided to any individual, and includes any individual or entity who is providing a medical benefit, item, or service for which payment may be made under the plan or contract.”
Actual prosecutions under either statute have been rare so far, but the U.S. Attorney’s Office for the Northern District of California announced last month that it had charged “the first federal criminal fraud prosecution related to homeoprophylaxis immunizations and fraudulent Centers for Disease Control and Prevention (CDC) COVID-19 vaccination record cards.” According to the announcement, a naturopathic doctor was arrested for “peddling fake treatments that put people’s lives at risk” and “even worse, the defendant allegedly created counterfeit COVID-19 vaccination cards and instructed her customers to falsely mark that they had received a vaccine, allowing them to circumvent efforts to contain the spread of the disease.” The defendant was charged with making false statements related to health care under 18 U.S.C. 1035 for her actions, as well as wire fraud charges.
Other States’ Laws
The case above may be the first federal prosecution for fake vaccine cards, but state prosecutors in California actually beat them to the courthouse by a couple months. In this case from May, a bar owner allegedly selling phony vaccination cards was arrested and charged with several counts of falsifying a medical record, falsifying a seal, identity theft, and a separate firearm charge. The charges related to the fake cards were brought under statutes including California Penal Code 471.5 (“any person who alters or modifies the medical record of any person, with fraudulent intent, or who, with fraudulent intent, creates any false medical record, is guilty of a misdemeanor”) and 472 (any person who “with intent to defraud another, forges, or counterfeits the seal of this State […] or any other public seal authorized or recognized by the laws of this State, or of any other State, Government, or country […] is guilty of forgery”).
Some other states have concluded that their current statutes do not sufficiently address the issue of fraudulent vaccination records and are making efforts to amend their laws to more directly cover the conduct. For example, this bill currently working its way through the New York legislature would amend two existing laws to clarify that a vaccination card constitutes a writing within the scope of the existing forgery statute found in Section 170.00, and that falsely entering a vaccination record into a database is a violation of the computer tampering statute in Section 156.25.
What About North Carolina?
North Carolina does have some statutes that address vaccination records (Chapter 130A, Article 6) and counterfeit trademarks (Chapter 80, Article 1), but I have been unable to find any direct criminal law parallels to the federal or California statutes cited above. Nevertheless, I think there are a few criminal offenses in North Carolina that could apply, although there is room for disagreement on these.
1. Forgery and Uttering: Forgery is a common law offense that applies when a person makes a false writing, apparently capable of effecting a fraud, with the intent to defraud. The common law offense of uttering applies to knowingly passing or delivering a false writing with the intent to defraud. The forgery case law clarifies that the false writing must be one that has a legal effect or subjects a person to liability. In modern cases, these charges are usually based on something like a forged signature on a check or other fraudulent financial instrument.
We don’t yet have an amendment like the one pending in New York to specifically include vaccination cards within the scope of this offense, but there is historical precedent for applying the law to a fake “railroad pass” that purported to authorize its holder to ride the train from Hillsborough to Graham and back. See State v. Weaver, 94 N.C. 836 (1884). Along the same lines, if a fake vaccine card is used (or intended to be used) to enable a person to enter a building, attend class, come to work, or dine at a restaurant by misrepresenting that he or she has been vaccinated, I think an argument could be made that the conduct supports a forgery or uttering charge. These offenses are Class 1 misdemeanors, but if done with deceit and intent to defraud they can be elevated to Class H felonies. See G.S. 14-3(b).
2. Obtaining Property by False Pretenses: This Class H felony applies when a person makes a false representation about a past or existing fact, that is calculated to (and does) deceive, and the person thereby obtains or attempts to obtain money, goods, property, or “any other thing of value.” G.S. 14-100. Therefore, if a person uses a fake card to falsely represent that he or she has been vaccinated in order to obtain something of value — even if it’s just a free doughnut — the elements of the offense appear to be satisfied.
However, our case law has clarified that a false pretense used only to retain something of value is not enough to satisfy the elements of the offense. See, e.g., State v. Mathis, 261 N.C. App. 263 (false representation that allowed defendant to retain his existing bail bondsman license was not “obtaining” under the statute). On the other hand, the Mathis court mentioned that the indictment could have alleged that the defendant obtained a “renewal” of his license, but it did not. Assuming arguendo that this alternate version of that charge would have sufficed, the question still remains: is a student or employee who submits a fake vaccination card to a school or business actually obtaining something of value, such as another year of education or gainful employment? Or is that person only retaining his or her existing enrollment or position, or perhaps simply avoiding something else entirely, such as a requirement to be regularly tested? As I said above, the answer may depend on the particular facts of the case, and I anticipate some disagreement on this one.
3. Accessing Computers: Yesterday, my colleague Brittany Williams announced the release of her new bulletin covering North Carolina computer crimes. One of those offenses is found in G.S. 14-454(a), which makes it a crime to access a computer or network, directly or indirectly, for the purpose of “devising or executing any scheme or artifice to defraud.” The offense is a Class 1 misdemeanor, unless the damages or property or services obtained exceed $1,000, in which case it is a Class G felony. G.S. 14-453(1) broadly defines “access” as meaning “to instruct, communicate with, cause input, cause output, cause data processing, or otherwise make use of any resources of a computer, computer system, or computer network.”
Obviously this offense would not apply to a person who only flashes a fake vaccination card to gain access to a store or restaurant. But what about when a school, hospital, or business has set up a computer system to record and track vaccination status, as UNC has done? If a person enters false information about his or her vaccination status into an online portal and then uploads a photograph of a fake vaccination card, that strikes me as “causing input” on the system, or at the very least making use of the computer resources in some way, and doing so for a fraudulent purpose. But once again, we are in uncharted waters here in terms of case law guidance, and it’s questionable whether an attempt to avoid weekly testing rises to the level of being “a scheme or artifice to defraud” since there is no financial gain involved. See generally Vail v. Vail, 233 N.C. 109 (1951):
Fraud has no all-embracing definition. Because of the multifarious means by which human ingenuity is able to devise means to gain advantages by false suggestions and concealment of the truth, and in order that each case may be determined on its own facts, it has been wisely stated ‘that fraud is better left undefined,‘ lest as Lord Hardwicke put it, ‘’the craft of men should find a way of committing fraud which might escape such a rule or definition.’‘ Furst & Thomas v. Merritt, 190 N.C. 397 at page 404, 130 S.E. 40, 44. However, in general terms fraud may be said to embrace ‘all acts, omissions, and concealments involving a breach of legal or equitable duty and resulting in damage to another, or the taking of undue or unconscientious advantage of another.‘ 37 C.J.S., Fraud, s 1, p. 204.
Your Mileage May Vary
The three offenses summarized above are the ones that have come up in my recent discussions with attorneys as the most likely charging options. Under the right circumstances, and depending on what other conduct may have occurred in connection with the use of the fake card, there are certainly other charges that might apply. A few that come to mind include making a false statement to procure insurance benefits under G.S. 58-2-161, violating executive orders or health control measures related to COVID-19 (see related discussions in prior blog posts here and here), or possibly even identity theft under G.S. 14-113.
I set this post up with two simple questions: is it a crime under our state law, and if so which one? The best answer I can offer is “it very well might be,” so I’ll have to settle for offering a prediction instead. If the use of these fake cards continues, and if it results in new infections or deaths caused by unvaccinated students, employees, or health care workers who evade testing and spread the virus undetected, we can expect to have better answers to those questions in the near future.