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Expired Accounts May Help Credit Card Thief

(CN) - A man convicted of stealing 500 credit cards should have faced a lighter sentence because the cards were expired, the 9th Circuit ruled.

Leslie Onyesoh pleaded guilty in 2009 to access-device fraud after postal agents found a spreadsheet containing 500 stolen credit card numbers during a search of his home. Onyesoh, who had stolen credit cards and mail in his home as well, also pleaded guilty to possession of stolen mail.

Estimating a potential loss of $500 per card, which would exceed $300,000, a presentencing report recommended a tough sentence.

Onyesoh argued on appeal that the District Court, in enhancing his sentence, had neglected to consider the "usability" of the expired numbers. A three-judge panel in Pasadena, Calif., agreed and vacated Onyesoh's sentence in a ruling from Pasadena.

The federal statute that defines access-device fraud clearly states that the access device in question must be used to obtain something of value, the panel found.

"Presented at appellate oral argument with a hypothetical of credit card numbers that had expired 35 years ago and were useless, the government conceded such numbers would not be covered under the statute," wrote U.S. District Judge Jack Zouhary, sitting on the panel by designation from the Northern District of Ohio in Toledo.

"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," Zouhary added. "We have carefully 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. In short, the government needed to show some usability of these expired numbers."

The appellate court vacated Onyesoh's 46-month sentence and remanded the case back to the Central District of California, directing the court to hear evidence of the card's usability.

"Of course, the amount of proof necessary will depend upon the access device at issue," Zouhary wrote. "For some types of access devices - e.g., credit card and bank account numbers - usability may be self-evident. But while a working credit card can clearly be used to obtain value, the usability of other types of access devices may not be readily apparent."

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