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=== Opinion ===
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 96-1317
UNITED STATES,
Appellee,
v.
RICHARD W. CZUBINSKI,
Defendant - Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge]
[Hon. Robert B. Collings, U.S. Magistrate Judge]
Before
Torruella, Chief Judge,
Bownes, Senior Circuit Judge,
and Stahl, Circuit Judge.
Susan B. Hanmer, with whom Oliver C. Mitchell, Jr., Louis J.
Scerra, Jr. and Goldstein & Manello, P.C. were on brief for
appellant.
S. Theodore Merritt, Assistant United States Attorney, with
whom Donald K. Stern, United States Attorney, and Amy B. Lederer,
Assistant United States Attorney, were on brief for appellee.
February 21, 1997
TORRUELLA, Chief Judge. Defendant-appellant Richard
TORRUELLA, Chief Judge.
Czubinski ("Czubinski") appeals his jury conviction on nine
counts of wire fraud, 18 U.S.C. 1343, 1346, and four counts of
computer fraud, 18 U.S.C. 1030(a)(4). The wire fraud and
computer fraud prosecution that led to the conviction survived
serious challenges put forward by Czubinski in various pre-trial
motions. Given the broad scope of the federal fraud statutes,
motions charging insufficient pleadings or selective prosecution
generally deserve careful consideration. We need not scrutinize
the lower court's rejection of the defendant's arguments in favor
of dismissing the indictment, however, because we reverse the
conviction on the clearer ground that the trial evidence mustered
by the government was insufficient to support a guilty verdict,
and hold that the defendant's motion for judgment of acquittal
should have been granted on all counts. Unauthorized browsing of
taxpayer files, although certainly inappropriate conduct, cannot,
without more, sustain this federal felony conviction.
BACKGROUND
BACKGROUND
I. Pertinent Facts
I. Pertinent Facts
On an appeal from a jury conviction, we review the
relevant facts in the light most favorable to the government.
United States v. Tierney, 760 F.2d 382, 384 (1st Cir. 1985). The
evidence in this case, so presented, is inadequate to support
convictions on either the wire fraud or computer fraud charges.
For all periods relevant to the acts giving rise to his
conviction, the defendant Czubinski was employed as a Contact
-2-
Representative in the Boston office of the Taxpayer Services
Division of the Internal Revenue Service ("IRS"). To perform his
official duties, which mainly involved answering questions from
taxpayers regarding their returns, Czubinski routinely accessed
information from one of the IRS's computer systems known as the
Integrated Data Retrieval System ("IDRS"). Using a valid
password given to Contact Representatives, certain search codes,
and taxpayer social security numbers, Czubinski was able to
retrieve, to his terminal screen in Boston, income tax return
information regarding virtually any taxpayer -- information that
is permanently stored in the IDRS "master file" located in
Martinsburg, West Virginia. In the period of Czubinski's employ,
IRS rules plainly stated that employees with passwords and access
codes were not permitted to access files on IDRS outside of the
course of their official duties.1
In 1992, Czubinski carried out numerous unauthorized
1 In 1987 Czubinski signed an acknowledgment of receipt of the
IRS Rules of Conduct, which contained the following rule:
Employees must make every effort to
assure security and prevent unauthorized
disclosure of protected information data
in the use of Government owned or leased
computers. In addition, employees may
not use any Service computer system for
other than official purposes.
See Government's Exhibit 1. In addition, Czubinski received
separate rules regarding use of the IDRS, one of which states:
Access only those accounts required to
accomplish your official duties.
See Government's Exhibit 3.
-3-
searches of IDRS files. He knowingly disregarded IRS rules by
looking at confidential information obtained by performing
computer searches that were outside of the scope of his duties as
a Contact Representative, including, but not limited to, the
searches listed in the indictment.2 Audit trails performed by
internal IRS auditors establish that Czubinski frequently made
unauthorized accesses on IDRS in 1992. For example, Czubinski
accessed information regarding: the tax returns of two
individuals involved in the David Duke presidential campaign; the
joint tax return of an assistant district attorney (who had been
prosecuting Czubinski's father on an unrelated felony offense)
and his wife; the tax return of Boston City Counselor Jim
Kelly's Campaign Committee (Kelly had defeated Czubinski in the
previous election for the Counselor seat for District 2); the tax
return of one of his brothers' instructors; the joint tax return
of a Boston Housing Authority police officer, who was involved in
a community organization with one of Czubinski's brothers, and
the officer's wife; and the tax return of a woman Czubinski had
dated a few times. Czubinski also accessed the files of various
other social acquaintances by performing unauthorized searches.
Nothing in the record indicates that Czubinski did
anything more than knowingly disregard IRS rules by observing the
confidential information he accessed. No evidence suggests, nor
2 The indictment charged ten counts of wire fraud for accessing
the return information of ten different entities; the four
computer fraud counts (counts eleven through fourteen) identified
unauthorized searches that also underlay four of the ten wire
fraud counts (counts one, two, eight and nine).
-4-
does the government contend, that Czubinski disclosed the
confidential information he accessed to any third parties. The
government's only evidence demonstrating any intent to use the
confidential information for nefarious ends was the trial
testimony of William A. Murray, an acquaintance of Czubinski who
briefly participated in Czubinski's local Invisible Knights of
the Ku Klux Klan ("KKK") chapter and worked with him on the David
Duke campaign. Murray testified that Czubinski had once stated
at a social gathering in "early 1992" that "he intended to use
some of that information to build dossiers on people" involved in
"the white supremacist movement." Trial Transcript, Vol. 2 at
170, 188. There is, however, no evidence that Czubinski created
dossiers, took steps toward making dossiers (such as by printing
out or recording the information he browsed), or shared any of
the information he accessed in the years following the single
comment to Murray. No other witness testified to having any
knowledge of Czubinski's alleged intent to create "dossiers" on
KKK members.
The record shows that Czubinski did not perform any
unauthorized searches after 1992. He continued to be employed as
a Contact Representative until June 1995, when a grand jury
returned an indictment against him on ten counts of federal wire
fraud under 18 U.S.C. 1343, 1346, and four counts of federal
interest computer fraud under 18 U.S.C. 1030(a)(4).
The portion of the indictment alleging wire fraud
states that Czubinski defrauded the IRS of confidential property
-5-
and defrauded the IRS and the public of his honest services by
using his valid password to acquire confidential taxpayer
information as part of a scheme to: 1) build "dossiers" on
associates in the KKK; 2) seek information regarding an assistant
district attorney who was then prosecuting Czubinski's father on
an unrelated criminal charge; and 3) perform opposition research
by inspecting the records of a political opponent in the race for
a Boston City Councilor seat. The wire fraud indictment,
therefore, articulated particular personal ends to which the
unauthorized access to confidential information through
interstate wires was allegedly a means.
The portion of the indictment setting forth the
computer fraud charges stated that Czubinski obtained something
of value, beyond the mere unauthorized use of a federal interest
computer, by performing certain searches -- searches representing
a subset of those making up the mail fraud counts.
II. Proceedings Below
II. Proceedings Below
After indictment and arraignment in June 1995,
Czubinski filed a motion to dismiss the indictment, a motion to
strike surplusage from the indictment, and a motion for discovery
from the government relating to a claim of selective prosecution.
In separate orders, a magistrate judge and the district court
rejected all of these motions. Specifically, the district court
rejected Czubinski's argument that counts 1 through 10 of the
indictment must be dismissed because "browsing" does not deprive
the IRS of any property and because section 1346, the intangible
-6-
right to honest services amendment to the mail and wire fraud
statutes, was unconstitutionally vague as applied to him. In
December 1995, Czubinski filed motions in limine which
essentially sought to prevent references to certain white
supremacist activities, such as his membership in a KKK chapter,
during trial. This motion was also denied, although the trial
court gave a limiting instruction regarding the relevance of
Czubinski's KKK membership to a finding of wire fraud and
computer fraud.
On December 15, 1995, the district court denied
Czubinski's motion for judgment of acquittal on all counts except
for count 3,3 and on that day the jury returned a verdict finding
Czubinski guilty on all thirteen remaining counts. On appeal,
Czubinski challenges the denial of his motion to dismiss the
indictment, including the rejection of a selective prosecution
claim, the finding that he had not made out a prima facie case
of selective prosecution, the admission at trial of allegedly
inflammatory evidence of Czubinski's white supremacist
activities, the denial of his motion for acquittal, the jury
instructions, and the sentencing determination.
We reverse on the ground that the district court erred
in denying Czubinski's motion for acquittal, and therefore bypass
Czubinski's other claims.
3 On count 3, the district court ruled that there was
insufficient proof showing that the search alleged in count 3 was
not requested by the taxpayer whose files were browsed.
-7-
STANDARD OF REVIEW
STANDARD OF REVIEW
A motion for judgment of acquittal under Federal Rule
of Criminal Procedure 29 is the proper vehicle for a defendant to
make a sufficiency challenge. See 2 C. Wright, Federal Practice
and Procedure: Crim. 2d 467 (1982). The denial of a motion for
judgment of acquittal presents a question of law, and our review
is de novo. See United States v. Staula, 80 F.3d 596, 604 (1st
Cir. 1996). We determine anew whether "the evidence is
sufficient to sustain a conviction." Fed. R. Crim. P. 29(a).
In determining the evidentiary sufficiency of a guilty
verdict, "the relevant question is whether, after viewing the
evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt." Jackson v. Virginia, 443
U.S. 307, 319 (1979); see also United States v. Valle, 72 F.3d
210, 216 (1st Cir. 1995). The scope of review is over the
totality of the evidence, both direct and circumstantial: we
"take a hard look at the record" and "reject those evidentiary
interpretations and illations that are unreasonable,
insupportable, or overly speculative." United States v. Spinney,
65 F.3d 231, 234 (1st Cir. 1995).
DISCUSSION
DISCUSSION
I. The Wire Fraud Counts
I. The Wire Fraud Counts
We turn first to Czubinski's conviction on the nine
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wire fraud counts.4 To support a conviction for wire fraud, the
government must prove two elements beyond a reasonable doubt:
(1) the defendant's knowing and willing participation in a scheme
or artifice to defraud with the specific intent to defraud, and
(2) the use of interstate wire communications in furtherance of
the scheme. United States v. Sawyer, 85 F.3d 713, 723 (1st Cir.
1996) (citing United States v. Cassiere, 4 F.3d 1006, 1011 (1st
Cir. 1993)). Although defendant's motion for judgment of
acquittal places emphasis on shortcomings in proof with regard to
the second element, by arguing that the wire transmissions at
issue were not proved to be interstate, we find the first element
dispositive and hold that the government failed to prove beyond a
reasonable doubt that the defendant willfully participated in a
scheme to defraud within the meaning of the wire fraud statute.5
4 The federal wire fraud statute, 18 U.S.C. 1343, provides in
pertinent part:
Whoever, having devised or intending to
devise any scheme or artifice to defraud,
or for obtaining money or property by
means of false or fraudulent pretenses,
representations, or promises, transmits
or causes to be transmitted by means of
wire . . . communication in interstate or
foreign commerce, any writings, signs,
signals, pictures, or sounds for the
purpose of executing such scheme or
artifice, shall be fined under this title
or imprisoned not more than five years,
or both.
5 We do not find that it was irrational for a trier of fact to
conclude beyond a reasonable doubt that Czubinski's searches
caused information from the IDRS master file in Martinsburg, West
Virginia, to be sent to his terminal in Boston. The interstate
element could reasonably be inferred from circumstantial
evidence. See, e.g., Testimony of Edward Makaskill, Trial
-9-
That is, assuming the counts accurately describe unauthorized
searches of taxpayer returns through interstate wire
transmissions, there is insufficiant record evidence to permit a
rational jury to conclude that the wire transmissions were part
of a criminal scheme to defraud under sections 1343 and 1346.
The government pursued two theories of wire fraud in
this prosecution: first, that Czubinski defrauded the IRS of its
property, under section 1343, by acquiring confidential
information for certain intended personal uses; second, that he
defrauded the IRS and the public of their intangible right to his
honest services, under sections 1343 and 1346.6 We consider the
evidence with regard to each theory, in turn.
A. Scheme to Defraud IRS of Property
A. Scheme to Defraud IRS of Property
The government correctly notes that confidential
Transcript, Vol. 3 at 82 (explaining that certain command codes
used by Czubinski generally access information from out-of-state
computer).
6 The district court's jury instructions on the wire fraud
counts repeat both of the scheme to defraud theories:
In this case, the government has charged
Mr. Czubinski with devising a scheme or
artifice, that is, a plan, to do two
things:
(1) to defraud the IRS, the United States
Government, and the citizens and
taxpayers of the United States by
depriving them of their intangible right
to his honest services as an IRS
employee; and
(2) to defraud the IRS and to obtain its
property, that is, confidential taxpayer
information, by false pretenses,
representations and promises.
Trial Transcript, Vol. 4 at 76-77.
-10-
information may constitute intangible "property" and that its
unauthorized dissemination or other use may deprive the owner of
its property rights. See Carpenter v. United States, 484 U.S.
19, 26 (1987) ("Confidential business information has long been
recognized as property. . . . [A newspaper] had a property right
in keeping confidential and making exclusive use, prior to
publication, of the schedule and contents" of a particular
column.). Where such deprivation is effected through dishonest
or deceitful means, a "scheme to defraud," within the meaning of
the wire fraud statute, is shown. See id. at 27. Thus, a
necessary step toward satisfying the "scheme to defraud" element
in this context is showing that the defendant intended to
"deprive" another of their protected right.
The government, however, provides no case in support of
its contention here that merely accessing confidential
information, without doing, or clearly intending to do, more, is
tantamount to a deprivation of IRS property under the wire fraud
statute. In Carpenter, for example, the confidential information
regarding the contents of a newspaper column was converted to the
defendants's use to their substantial benefit. See id. at 27
(defendants participated in "ongoing scheme to share profit from
trading in anticipation" of newspaper column). We do not think
that Czubinski's unauthorized browsing, even if done with the
intent to deceive the IRS into thinking he was performing only
authorized searches, constitutes a "deprivation" within the
meaning of the federal fraud statutes.
-11-
Binding precedents, and good sense, support the
conclusion that to "deprive" a person of their intangible
property interest in confidential information under section 1343,
either some articulable harm must befall the holder of the
information as a result of the defendant's activities, or some
gainful use must be intended by the person accessing the
information, whether or not this use is profitable in the
economic sense.7 Here, neither the taking of the IRS' right to
"exclusive use" of the confidential information, nor Czubinski's
gain from access to the information, can be shown absent evidence
of his "use" of the information. Accordingly, without evidence
that Czubinski used or intended to use the taxpayer information
(beyond mere browsing), an intent to deprive cannot be proven,
and, a fortiori, a scheme to defraud is not shown.
All of the cases cited by the government in support of
their contention that the confidentiality breached by Czubinski's
search in itself constitutes a deprivation of property in fact
support our holding today, for they all involve, at a minimum, a
finding of a further intended use of the confidential information
accessed by the defendants. The government's best support comes
from United States v. Seidlitz, 589 F.2d 152, 160 (4th Cir.
1978), in which a former employee of a computer systems firm
secretly accessed its files, but never was shown to have sold or
7 For example, had the government established that Czubinski
disclosed or intended to disclose taxpayer information, then the
deprivation or intended deprivation of property rights would have
been shown.
-12-
used the data he accessed, and was nevertheless convicted of wire
fraud. The affirming Fourth Circuit held, however, that a jury
could have reasonably found that, at the time the defendant
raided a competitor's computer system, he intended to retrieve
information that would be helpful for his own start-up, competing
computer firm. In the instant case, Czubinski did indeed access
confidential information through fraudulent pretenses -- he
appeared to be performing his duties when in fact he used IRS
passwords to perform unauthorized searches. Nevertheless, it was
not proven that he intended to deprive the IRS of their property
interest through either disclosure or use of that information.
The resolution of the instant case is complex because
it is well-established that to be convicted of mail or wire
fraud, the defendant need not successfully carry out an intended
scheme to defraud. See, e.g., United States v. Serrano, 870 F.2d
1, 6 (1st Cir. 1989) (defendant need only participate in a scheme
to defraud with the intent to achieve its illicit objectives);
Seidlitz, 589 F.2d at 160 (where circumstantial evidence suffices
to prove intent to accomplish scheme to defraud, actual use of
confidential information need not be shown). The government does
not contend either that Czubinski actually created dossiers or
that he accomplished some other end through use of the
information. It need not do so. All that the government was
required to prove was the intent to follow through with a
deprivation of the IRS's property and the use or foreseeable use
of interstate wire transmissions pursuant to the accomplishment
-13-
of the scheme to defraud. See, e.g., United States v. Silvano,
812 F.2d 754, 760 (1st Cir. 1987). In the case at bar, the
government failed to make even this showing.
The fatal flaw in the government's case is that it has
not shown beyond a reasonable doubt that Czubinski intended to
carry out a scheme to deprive the IRS of its property interest in
confidential information. Had there been sufficient proof that
Czubinski intended either to create dossiers for the sake of
advancing personal causes or to disseminate confidential
information to third parties, then his actions in searching files
could arguably be said to be a step in furtherance of a scheme to
deprive the IRS of its property interest in confidential
information. The government's case regarding Czubinski's intent
to make any use of the information he browsed rests on the
testimony of one witness at trial who stated that Czubinski once
remarked at a social gathering that he intended to build dossiers
on potential KKK informants.8 We must assume, on this appeal,
that Czubinski did indeed make such a comment. Nevertheless, the
fact that during the months following this remark -- that is,
during the period in which Czubinski made his unauthorized
searches -- he did not create dossiers (there was no evidence
that he created dossiers either during or after the period of his
unauthorized searches); given the fact that he did not even take
steps toward creating dossiers, such as recording or printing out
the information; given the fact that no other person testifying
8 Testimony of William J. Murray. See Background, supra.
-14-
as to Czubinski's involvement in white supremacist organizations
had any knowledge of Czubinski's alleged intent to create
dossiers or use confidential information; and given the fact that
not a single piece of evidence suggests that Czubinski ever
shared taxpayer information with others, no rational jury could
have found beyond a reasonable doubt that, when Czubinski was
browsing taxpayer files, he was doing so in furtherance of a
scheme to use the information he browsed for private purposes, be
they nefarious or otherwise. In addition, there was no evidence
that Czubinski disclosed, or used to his advantage, any
information regarding political opponents or regarding the person
prosecuting his father.
Mere browsing of the records of people about whom one
might have a particular interest, although reprehensible, is not
enough to sustain a wire fraud conviction on a "deprivation of
intangible property" theory. Curiosity on the part of an IRS
officer may lead to dismissal, but curiosity alone will not
sustain a finding of participation in a felonious criminal scheme
to deprive the IRS of its property.
B. Honest Services Fraud (Section 1346)
B. Honest Services Fraud (Section 1346)
In McNally v. United States, 483 U.S. 350 (1987), the
Supreme Court held that the mail and wire fraud statutes do not
prohibit schemes to defraud individuals of their intangible, non-
property right to honest government services. Id. at 359-60.9
9 Before McNally, however, the fraud statutes had been "read as
a broad shield" by this and other circuits, applying, for
example, to cases of corruption on the ground that the defendant
-15-
Congress responded to McNally in 1988 by enacting section 1346,
the honest services amendment, which provides:
For the purposes of this chapter, the
term "scheme or artifice to defraud"
includes a scheme or artifice to deprive
another of the intangible right of honest
services.
18 U.S.C. 1346 (effective Nov. 11, 1988). We have held, after
considering the relevant legislative history, that section 1346
effectively restores to the scope of the mail and wire fraud
statutes10 their pre-McNally applications to government
officials' schemes to defraud individuals of their intangible
right to honest services. See Grandmaison, 77 F.3d at 566
(collecting cases).11
We recently had the opportunity to discuss, at some
length, the proper application of the section 1346 honest
services amendment to the wrongful acts of public officials. See
Sawyer, 85 F.3d at 722-26. The discussion and holding in Sawyer
had used the mails in furtherance of a scheme to defraud the
public of its intangible right to honest services. See, e.g.,
Silvano, 812 F.2d 754 (1st Cir. 1987) (applying, pre-McNally,
mail fraud statute to local political corruption); see generally
United States v. Grandmaison, 77 F.3d 555, 565 (1st Cir. 1996)
(discussing change wrought by McNally).
10 Identical standards apply in determining the "scheme to
defraud" element under the mail and wire fraud statutes. United
States v. Boots, 80 F.3d 580, 586 n.11 (1st Cir. 1996) (citing
Carpenter, 484 U.S. at 25 n.6).
11 Finding insufficient evidence to convict, we do not reach the
issue of whether the honest services amendment raises vagueness
concerns. Cf. United States v. Waymer, 55 F.3d 564, 568-69 (11th
Cir. 1995) (rejecting facial vagueness and overbreadth challenge
to section 1346).
-16-
directly guide our disposition of the instant appeal.12 First,
as a general matter, we noted in Sawyer that although the right
to honest services "eludes easy definition," honest services
convictions of public officials typically involve serious
corruption, such as embezzlement of public funds, bribery of
public officials, or the failure of public decision-makers to
disclose certain conflicts of interest. Id. at 724. Second, we
cautioned that "[t]he broad scope of the mail fraud statute,
however, does not encompass every instance of official misconduct
that results in the official's personal gain." Id. at 725.
Third, and most importantly, Sawyer holds that the government
must not merely indicate wrongdoing by a public official, but
must also demonstrate that the wrongdoing at issue is intended to
prevent or call into question the proper or impartial performance
of that public servant's official duties. Id. at 725 (citing
pre-McNally precedent to demonstrate that even where public
officials violated state laws, their actions were not found to
defraud citizens of their right to honest services, because the
officials did not actually fail to perform their official duties
properly). In other words, "although a public official might
engage in reprehensible misconduct related to an official
12 In Sawyer, we vacated and remanded for further factfinding
the mail and wire fraud conviction of a private lobbyist who was
found to have violated Massachusetts' gift and gratuity statutes
in the course of his lobbying activities. See 85 F.3d at 730-31.
The conviction was vacated because the violation of the gift
statute, in itself, was held insufficient to establish a scheme
to defraud the public of its intangible right to honest services.
See id.
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position, the conviction of that official cannot stand where the
conduct does not actually deprive the public of its right to her
honest services, and it is not shown to intend that result." Id.
Applying these principles to Czubinski's acts, it is
clear that his conviction cannot stand. First, this case falls
outside of the core of honest services fraud precedents.
Czubinski was not bribed or otherwise influenced in any public
decision-making capacity. Nor did he embezzle funds. He did not
receive, nor can it be found that he intended to receive, any
tangible benefit. His official duty was to respond to
informational requests from taxpayers regarding their returns, a
relatively straightforward task that simply does not raise the
specter of secretive, self-interested action, as does a
discretionary, decision-making role. Cf. United States v.
McNieve, 536 F.2d 1245, 1251 (8th Cir. 1976) (finding no mail
fraud violation where city employee accepted gratuities in
connection with non-discretionary duty).
Second, we believe that the cautionary language of
Sawyer is particularly appropriate here, given the evidence
amassed by the defendant at trial indicating that during his span
of employment at IRS, he received no indication from his employer
that this workplace violation -- the performance of unauthorized
searches -- would be punishable by anything more than
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dismissal.13 "To allow every transgression of state governmental
obligations to amount to mail fraud would effectively turn every
such violation into a federal felony; this cannot be
countenanced." Sawyer, 85 F.3d at 728. Here, the threat is one
of transforming governmental workplace violations into felonies.
We find no evidence that Congress intended to create what amounts
to a draconian personnel regulation. We hesitate to imply such
an unusual result in the absence of the clearest legislative
mandate.
These general considerations, although serious, are not
conclusive: they raise doubts as to the propriety of this
conviction that can be outweighed by sufficient evidence of a
scheme to defraud. The third principle identified in Sawyer,
instructing us as to the basic requirements of a scheme to
defraud in this context, settles any remaining doubts. The
conclusive consideration is that the government simply did not
prove that Czubinski deprived, or intended to deprive, the public
or his employer of their right to his honest services. Although
he clearly committed wrongdoing in searching confidential
information, there is no suggestion that he failed to carry out
his official tasks adequately, or intended to do so.
The government alleges that, in addition to defrauding
the public of his honest services, Czubinski has defrauded the
13 See Appendices to Czubinski's Motion to Dismiss (including
February 8, 1994 IRS memorandum to employees indicating that the
probable penalty for "unauthorized accessing" of taxpayer
information ranges from "Reprimand" to "Removal").
-19-
IRS as well. The IRS is a public entity, rendering this
contention sufficiently answered by our holding above that
Czubinski did not defraud the public of his honest services.
Even if the IRS were a private employer, however, the pre-McNally
honest services convictions involving private fraud victims
indicate that there must be a breach of a fiduciary duty to an
employer that involves self-dealing of an order significantly
more serious than the misconduct at issue here. See, e.g.,
United States v. Lemire, 720 F.2d 1327, 1332-34 (D.C. Cir. 1983)
(employee took bribes and did not disclose that contractor was
overcharging); United States v. Seigel, 717 F.2d 9, 14 (2d Cir.
1983) (employees used corporate funds for non-corporate
purposes); United States v. Boffa, 688 F.2d 919, 931 (3d Cir.
1982) (union official bribed into accepting lower wages for union
members). Once again, the government has failed to prove that
Czubinski intended to use the IRS files he browsed for any
private purposes, and hence his actions, however reprehensible,
do not rise to the level of a scheme to defraud his employer of
his honest services.
II. The Computer Fraud Counts
II. The Computer Fraud Counts
Czubinski was convicted on all four of the computer
fraud counts on which he was indicted; these counts arise out of
unauthorized searches that also formed the basis of four of the
ten wire fraud counts in the indictment. Specifically, he was
convicted of violating 18 U.S.C. 1030(a)(4), a provision
enacted in the Computer Fraud and Abuse Act of 1986. Section
-20-
1030(a)(4) applies to:
whoever . . . knowingly and with intent
to defraud, accesses a Federal interest
computer without authorization, or
exceeds authorized access, and by means
of such conduct furthers the intended
fraud and obtains anything of value,
unless the object of the fraud and the
thing obtained consists only of the use
of the computer.
We have never before addressed section 1030(a)(4). Czubinski
unquestionably exceeded authorized access to a Federal interest
computer.14 On appeal he argues that he did not obtain "anything
of value." We agree, finding that his searches of taxpayer
return information did not satisfy the statutory requirement that
he obtain "anything of value." The value of information is
relative to one's needs and objectives; here, the government had
to show that the information was valuable to Czubinski in light
of a fraudulent scheme. The government failed, however, to prove
that Czubinski intended anything more than to satisfy idle
curiosity.
The plain language of section 1030(a)(4) emphasizes
that more than mere unauthorized use is required: the "thing
obtained" may not merely be the unauthorized use. It is the
showing of some additional end -- to which the unauthorized
access is a means -- that is lacking here. The evidence did not
show that Czubinski's end was anything more than to satisfy his
14 "[T]he term 'exceeds authorized access' means to access a
computer with authorization and to use such access to obtain or
alter information in the computer that the accesser is not
entitled so to obtain or alter." 18 U.S.C. 1030(e)(6).
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curiosity by viewing information about friends, acquaintances,
and political rivals. No evidence suggests that he printed out,
recorded, or used the information he browsed. No rational jury
could conclude beyond a reasonable doubt that Czubinski intended
to use or disclose that information, and merely viewing
information cannot be deemed the same as obtaining something of
value for the purposes of this statute.15
The legislative history further supports our reading of
the term "anything of value." "In the game of statutory
interpretation, statutory language is the ultimate trump card,"
and the remarks of sponsors of legislation are authoritative only
to the extent that they are compatible with the plain language of
section 1030(a)(4). Rhode Island v. Narragansett Indian Tribe,
19 F.3d 685, 699 (1st Cir. 1994) (citing Grove City College v.
Bell, 465 U.S. 555, 567 (1984)). Here, a Senate co-sponsor's
comments suggest that Congress intended section 1030(a)(4) to
punish attempts to steal valuable data, and did not wish to
punish mere unauthorized access:
The acts of fraud we are addressing in
proposed section 1030(a)(4) are essentially
thefts in which someone uses a federal
15 The district court, in denying a motion to dismiss the
computer fraud counts in the indictment, found that the
indictment sufficiently alleged that the confidential taxpayer
information was itself a "thing of value" to Czubinski, given his
ends. The indictment, of course, alleged specific uses for the
information, such as creating dossiers on KKK members, that were
not proven at trial. In light of the trial evidence -- which, as
we have said, indicates that there was no recording, disclosure
or further use of the confidential information -- we find that
Czubinski did not obtain "anything of value" through his
unauthorized searches.
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interest computer to wrongly obtain something
of value from another. . . . Proposed section
1030(a)(4) is intended to reflect the
distinction between the theft of information,
a felony, and mere unauthorized access, a
misdemeanor.
132 Cong. Rec. 7128, 7129, 99th Cong., 2d. Sess. (1986). The
Senate Committee Report further underscores the fact that this
section should apply to those who steal information through
unauthorized access as part of an illegal scheme:
The Committee remains convinced that there
must be a clear distinction between computer
theft, punishable as a felony [under section
1030(a)(4)], and computer trespass,
punishable in the first instance as a
misdemeanor [under a different provision].
The element in the new paragraph (a)(4),
requiring a showing of an intent to defraud,
is meant to preserve that distinction, as is
the requirement that the property wrongfully
obtained via computer furthers the intended
fraud.
S. Rep. No. 132, 99th Cong., 2d Sess., reprinted in 1986
U.S.C.C.A.N. 2479. For the same reasons we deemed the trial
evidence could not support a finding that Czubinski deprived the
IRS of its property, see discussion of wire fraud under section
1343 supra, we find that Czubinski has not obtained valuable
information in furtherance of a fraudulent scheme for the
purposes of section 1030(a)(4).
CONCLUSION
CONCLUSION
We add a cautionary note. The broad language of the
mail and wire fraud statutes are both their blessing and their
curse. They can address new forms of serious crime that fail to
fall within more specific legislation. See United States v.
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Maze, 414 U.S. 395, 405-06 (1974) (observing that the mail fraud
statute serves "as a first line of defense" or "stopgap device"
to tackle new types of frauds before particularized legislation
is developed) (Burger, C.J., dissenting). On the other hand,
they might be used to prosecute kinds of behavior that, albeit
offensive to the morals or aesthetics of federal prosecutors,
cannot reasonably be expected by the instigators to form the
basis of a federal felony. The case at bar falls within the
latter category. Also discomforting is the prosecution's
insistence, before trial, on the admission of inflammatory
evidence regarding the defendant's membership in white
supremacist groups purportedly as a means to prove a scheme to
defraud, when, on appeal, it argues that unauthorized access in
itself is a sufficient ground for conviction on all counts.
Finally, we caution that the wire fraud statute must not serve as
a vehicle for prosecuting only those citizens whose views run
against the tide, no matter how incorrect or uncivilized such
views are.
For the reasons stated in this opinion, we hold the
district court's denial of defendant's motion for judgment of
acquittal on counts 1, 2, and 4 through 14, to be in error. The
defendant's conviction is thus reversed on all counts.
reversed
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