United States v. Onyesoh
2012 U.S. App. LEXIS 6723
| 9th Cir. | 2012Background
- Police/search of Onyesoh's home yielded stolen mail, credit cards, and a spreadsheet with ~500 expired credit card numbers.
- Defendant pled guilty to possession of stolen mail and access device fraud including possession of 15+ unauthorized devices.
- Statute defines access device as any device capable of obtaining money, goods, or value; an unauthorized access device includes expired or revoked cards.
- PSR concluded the 500 expired numbers were unauthorized devices and recommended a 12-level enhancement for loss >$200,000.
- The district court adopted the enhancement without proving usability of the expired numbers, increasing the loss and sentencing Onyesoh to 46 months.
- On appeal, the issue is whether usability must be proven for expired numbers to support the enhancement.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Usability requirement for expired numbers | Government: numbers could be used; usability not required | Onyesoh: usability must be shown for expired numbers | Usability must be proven for expired numbers |
| Preponderance standard for usability | Government: standard not specified, evidence enough | Onyesoh: must prove usability by preponderance | Usability must be shown by a preponderance of the evidence |
| Statutory interpretation of 'unauthorized access device' | Government: expired numbers fall within the device definition | Onyesoh: requires usability of the numbers | Unauthorized access devices must be usable |
| Evidence to prove usability (what suffices) | Government: overwhelming evidence of useability | Onyesoh: no proof of usability provided | Not enough evidence of usability; remand for proof |
| Remedy | Maintain enhanced sentence | Vacate and remand for usability proof | Sentence vacated and remanded for usability evidence |
Key Cases Cited
- United States v. Nguyen, 81 F.3d 912 (9th Cir. 1996) (holding blank cards usable when able to be used)
- United States v. Bailey, 41 F.3d 413 (9th Cir. 1994) (requires user to be able to obtain goods or services)
- United States v. Cazares, 121 F.3d 1241 (9th Cir. 1997) (preponderance standard for sentence enhancements)
- United States v. Yellowe, 24 F.3d 1110 (9th Cir. 1994) (expert testimony can establish usability)
- United States v. Jones, 557 F.Supp.2d 630 (E.D. Pa. 2008) (expired numbers may be unauthorized devices; usability required)
- Dabbs v. United States, 134 F.3d 1071 (11th Cir. 1998) (legislative history cited on scope of statute)
- Brewer, 835 F.2d 550 (5th Cir. 1987) (discussed definitional issues of access devices)