United States v. Onyesoh

The government must show some proof of the usability of an unauthorized access device, such as expired credit card numbers, when its use is not readily apparent.

In May 2009, federal agents searched Defendant-Appellant Onyseoh’s home and found spreadsheets containing five hundred expired credit card numbers. Onyseoh pled guilty to access device fraud, including the knowing possession of “fifteen or more…unauthorized access devices” with intent to defraud. 19 U.S.C. §1029(a)(3). The pre-sentence report recommended an enhancement based on the amount of money potentially lost from the use of the expired credit card numbers. During the sentencing hearing Onyseoh objected to the loss calculation. She argued that the expired credit cards could only be characterized as unauthorized access devices if their usability was proven. The Government argued usability need not be proven if evident and contended that the numbers could be used to find credit history and establish new accounts. The district court, accepting the Government’s argument, applied the enhancement. Onyseah appealed. The Ninth Circuit disagreed. The Court held an unauthorized access device with usability is not readily apparent, such as an expired credit card number, requires some proof of usability by the government. Especially when the defendant does not concede the fact or challenges its usability. VACATED and REMANDED.