April 18, 2012

The Ninth Circuit On Expired Credit Cards

Like many Americans, Leslie Onyesoh had a credit card problem. His problem, however, wasn't maxing out her cards or making the minimum payment.

His problem was that when postal inspectors raided his home, they found a spreadsheet containing 500 expired credit card numbers.

One can assume that they were someone else's expired credit card numbers.

Mr. Onyesoh pled guilty to the knowing possession of more than 15 unauthorized access devices, in violation of 18 U.S.C. 1029(a)(3).

1176251_cut_expenses_1.jpgAn unauthorized access device is "any access device that is lost, stolen, expired, revoked, canceled, or obtained with intent to defraud."

The statute further defines "access device" - it includes credit cards - to require that the device must be capable of obtaining "money, goods, services, or any other thing of value." See section 1029(e)(1).

Under the federal sentencing guidelines, if a person is guilty of an economic crime like fraud, or possession of someone else's credit card information, their sentence becomes more severe as the amount of money at stake increases.

How much money is at stake, though, when you're talking about an expired credit card?

At sentencing, the government urged the court to sentence Mr. Onyesoh using a sentencing guidelines calculation that included a loss amount for each credit card on the spreadsheet at $500.

Under a note to the relevant part of the sentencing guidelines, the presumed minimum loss for someone else's credit card is $500 (though presumably it could be higher). It's note 3(F)(i) to guideline 2B1.1.

The question is, do expired credit cards count?

The district court, following the government, said that they do.

The Ninth Circuit, in United States v. Onyesoh, said not so fast.

The court of appeals focused on the requirement in section 1029 that for something to be an access device, it has to be capable of obtaining "money, goods, services, or any other thing of value."

Based on that, the court of appeals held that an expired credit card has to be useable for it to count as an access device. A working credit card, the court said, is clearly useable, and the government doesn't have to put on much evidence to show that a working credit card is an access device. (Though how would the government show it's working? Do they have to run a test charge?)

As the Ninth Circuit explained it,

Here, Defendant's credit card numbers had been expired for some three years, yet the Government argued these numbers required no further proof of usability because the evidence was "overwhelming" Defendant used, or could have used, these numbers. We have care- fully reviewed the record in this case and found no evidence of usability, let alone "overwhelming" evidence. There was no crossover between Defendant's victims and the list of expired numbers, and there was no showing Defendant ever took steps or attempted to use the expired numbers, or that Defendant possessed them before their expiration.

So, with "no evidence" that these credit cards were usable, the Ninth Circuit remanded for resentencing.

Though, if there's no evidence that these expired credit cards were "unauthorized access devices", what did Mr. Onyesoh plead guilty to?

Finally, gentle reader, you may wonder whether Mr. Onyesoh is a man or a woman - Leslie, as you know, can go both ways. According to the BOP, Leslie Onyesoh is a guy. That's the kind of rigorous fact-checking you can rely on here at the Federal Criminal Appeals Blog.

See also:
The Tenth Circuit On Credit Cards, Loss, and the Sentencing Guidelines

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The Federal Criminal Appeals Blog is published by The Kaiser Law Firm PLLC in Washington, DC. The Kaiser Law Firm represents people who have been charged with federal crimes, are under federal investigation, or have a federal criminal appeal.

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