613 F. App'x 618
9th Cir.2015Background
- Masters was convicted on four counts of possession of 15 or more counterfeit or unauthorized access devices, one count of conspiracy to possess such devices, and one count of aggravated identity theft.
- The district court admitted and authenticated a chat log linking user Veovis to Masters via references to Masters and veovis@gmail.com under Rule 901(a).
- Evidence showed Masters obtained card numbers from Whitaker Bank and Account Now, with emails indicating many cards had positive balances and Newsome resold them.
- The district court applied multiple sentencing enhancements based on loss, number of victims, and sophisticated means, and calculated restitution totaling approximately $191,906.26.
- The district court found Masters was in the business of receiving and selling stolen property, which the panel later reversed on that specific enhancement.
- Newsome, a co-participant, had a plea agreement; the court imposed a slightly downward variance for Masters due to mild social and emotional impairments.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was the chat log properly authenticated? | Masters | Masters | Yes; reasonable juror could find Veovis equals Masters. |
| Was there sufficient evidence to prove possession of 15+ unauthorized devices? | Masters | Masters | Yes; emails and testimony supported capable devices despite some being expired. |
| Did conspiracy findings withstand scrutiny? | Masters | Masters | Yes; implicit agreement and overt acts supported conspiracy to commit credit card fraud. |
| Did the district court properly apply loss and other sentencing enhancements? | Masters | Masters | Yes for loss and victims enhancements; reversed for business-transaction enhancement. |
Key Cases Cited
- United States v. Tank, 200 F.3d 627 (9th Cir. 2000) (authentication by circumstantial evidence of user identity)
- Jackson v. Virginia, 443 U.S. 307 (Supreme Court 1979) (sufficiency review standard)
- United States v. Onyesoh, 674 F.3d 1157 (9th Cir. 2012) (evidence of usable access devices supports possession)
- United States v. Sullivan, 522 F.3d 967 (9th Cir. 2008) (intent to defraud does not require success of scheme)
- United States v. Utz, 886 F.2d 1148 (9th Cir. 1989) (relevance of scheme intent standard per curiam)
- United States v. Horob, 735 F.3d 866 (9th Cir. 2013) (sophisticated means emphasis in § 2B1.1(b)(10)(C))
- United States v. Tanke, 743 F.3d 1296 (9th Cir. 2014) (complexity of fraudulent production relevant to enhancement)
- United States v. Hinkson, 585 F.3d 1247 (9th Cir. 2009) (en banc restitution standards and evidentiary support)
- United States v. Vasquez-Cruz, 692 F.3d 1001 (9th Cir. 2012) (procedural versus substantive reasonableness of departures)
- United States v. Kimbrew, 406 F.3d 1149 (9th Cir. 2005) (not in the business of receiving and selling stolen property)