USCA1 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.

TORRUELLA, Chief Judge.
___________

Defendant-appellant

Richard

Czubinski

("Czubinski")

appeals

his jury

counts of wire fraud, 18 U.S.C.

computer

fraud,

computer fraud

18 U.S.C.

prosecution that

Given the broad

on

nine

1343, 1346, and four counts of

1030(a)(4).

serious challenges put forward

motions.

conviction

The wire

led to the

fraud and

conviction survived

by Czubinski in various pre-trial

scope of the

motions charging insufficient pleadings or

generally deserve careful consideration.

federal fraud statutes,

selective prosecution

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

and

the government was insufficient

hold that the

to support a guilty verdict,

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.
I.

Pertinent Facts
Pertinent Facts

On

an appeal

relevant facts

from a

in the light

jury conviction,

most favorable

we review

to the

government.

United States v. Tierney, 760 F.2d 382, 384 (1st Cir. 1985).
_____________
_______

evidence

in this case,

so presented,

is inadequate

the

The

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

Division of the Internal Revenue Service ("IRS").

official duties, which

Integrated

Data

password given

To perform his

mainly involved answering questions

taxpayers regarding their

information from one of

Services

returns, Czubinski routinely

accessed

the IRS's computer systems known

Retrieval

System

("IDRS").

Using

from

as the

valid

to Contact Representatives, certain search codes,

and

taxpayer

retrieve, to

social security

his terminal

numbers,

screen in

Czubinski

Boston, income

information regarding virtually any taxpayer

is

permanently

stored in

the

Martinsburg, West Virginia.

IDRS

was able

to

tax return

-- information that

"master file"

located

in

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

____________________

In 1987 Czubinski

signed an acknowledgment of receipt

IRS Rules of Conduct, which contained the following rule:

Employees

must

assure security
disclosure of

make

every

effort

to

and prevent unauthorized

protected information data

of the

in the

use of Government owned or leased

computers.
not use any

In addition,

employees may

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

looking

of IDRS files.

at

He knowingly disregarded

confidential

information

obtained

IRS rules by

by

performing

computer searches that were outside of the scope of his duties as

Contact Representative,

searches

listed in the

internal

IRS auditors

information

but not

indictment.2

Audit

IDRS in 1992.

regarding:

the

limited to,

the

trails performed by

establish that Czubinski

unauthorized accesses on

accessed

including,

frequently made

For example,

tax

returns

Czubinski

of

two

individuals involved in the David Duke presidential campaign; the

joint

tax return of an assistant district attorney (who had been

prosecuting

and his

Czubinski's father on

wife;

Kelly's Campaign

the

tax

return of

an unrelated

Boston

felony offense)

City Counselor

Committee (Kelly had defeated

Jim

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

the officer's wife; and the

dated a few times.

Czubinski

one of Czubinski's

brothers, and

tax return of a woman

Czubinski had

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

The indictment charged ten

return

information

of

counts of wire fraud for accessing

ten different

entities;

the

four

computer fraud counts (counts eleven through fourteen) identified

unauthorized searches

that also

underlay four of

fraud counts (counts one, two, eight and nine).

the ten

wire

-4-

does

the

government

contend,

confidential information he

government's only

confidential

that

Czubinski

participated in

parties.

The

for

nefarious

any intent to

ends

testimony of William A. Murray, an acquaintance

briefly

the

accessed to any third

evidence demonstrating

information

disclosed

was

the

use the

trial

of Czubinski who

Czubinski's local Invisible

Knights of

the Ku Klux Klan ("KKK") chapter and worked with him on the David

Duke campaign.

at a social

Murray testified that Czubinski had

gathering in "early

once stated

1992" that "he intended

to use

some of that information to build dossiers on people" involved in

"the white

supremacist movement."

170,

There is, however, no evidence that Czubinski created

188.

dossiers, took steps

or recording the information

the

information he

to Murray.

knowledge of

2 at

toward making dossiers (such as by printing

out

comment

Trial Transcript, Vol.

accessed in

No

he browsed), or

shared any of

the years following

other witness

testified to

Czubinski's alleged intent to

the single

having any

create "dossiers" on

KKK members.

The

record shows

that Czubinski

unauthorized searches after 1992.

did not

perform any

He continued to be employed as

Contact Representative

returned

until

June 1995,

when

a grand

jury

an indictment against him on ten counts of federal wire

fraud under 18

U.S.C.

1343, 1346, and

interest computer fraud under 18 U.S.C.

The

portion

of

the

states that Czubinski defrauded

four counts of federal

1030(a)(4).

indictment

alleging wire

fraud

the IRS of confidential property

-5-

and defrauded the IRS

using

his

valid

information

and the public

password

as part

of

to

of his honest services

acquire

a scheme

to:

confidential

1) build

by

taxpayer

"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

therefore,

Councilor

seat.

The

articulated particular

unauthorized

access

to

wire

personal

confidential

fraud

ends

indictment,

to which

information

the

through

interstate wires was allegedly a means.

The

portion

computer fraud charges

of

the

indictment

stated that Czubinski

setting

forth

the

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.
II.

Proceedings Below
Proceedings Below

After

indictment

Czubinski filed a motion

and

arraignment

in

to dismiss the indictment, a

June

1995,

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

rejected all of these motions.

Specifically,

rejected

that counts

Czubinski's argument

indictment must be dismissed

the

court

the district court

1 through 10

of the

because "browsing" does not deprive

IRS of any property and because section 1346, the intangible

-6-

right to honest

statutes, was

December

services amendment

unconstitutionally vague

1995,

essentially

to the mail

Czubinski

sought

to

filed

prevent

as applied

motions

references

trial.

This motion

was also denied,

to him.

in
limine
___________

to

supremacist activities, such as his membership in

during

and wire

certain

fraud

In

which

white

a KKK chapter,

although the trial

court

gave a

limiting

Czubinski's KKK

instruction regarding

membership

to

finding

the relevance

of

wire

fraud

of

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

Czubinski challenges

all thirteen remaining

the

indictment, including

claim,

of

denial of

the rejection

the finding that he had not

selective prosecution,

inflammatory

activities, the

evidence

denial of

his motion

of a

Czubinski's

his

On

appeal,

to dismiss

the

selective prosecution

made out a prima facie case

the admission

of

counts.

motion for

at trial

of allegedly

white

supremacist

acquittal, the

instructions, and the sentencing determination.

jury

We reverse on the ground that the district

court erred

in denying Czubinski's motion for acquittal, and therefore bypass

Czubinski's other claims.

____________________

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.

and Procedure:

judgment

Crim. 2d

See 2 C. Wright, Federal Practice

___

467 (1982). The denial of a motion for

of acquittal presents a question of law, and our review

is de novo. See United States

________ ___ _____________

v. Staula, 80 F.3d
______

Cir.

anew

1996).

We

determine

sufficient to sustain a conviction."

whether

"the

596, 604 (1st

evidence

is

Fed. R. Crim. P. 29(a).

In determining the evidentiary sufficiency

of a guilty

verdict,

"the relevant

question is

viewing the

evidence

in the

most favorable

light

whether, after

to the

prosecution, any
___

rational trier of fact could have found the essential elements of

the crime beyond a

U.S.

reasonable doubt."

Jackson v.
_______

307, 319 (1979); see also United States

_________ _____________

210, 216

(1st Cir.

totality of

"take

1995).

the evidence,

a hard look at

interpretations

The

scope of

both direct and

the record" and

and

illations

Virginia, 443
________

v. Valle, 72 F.3d
_____

review

is over

the

circumstantial:

we

"reject those evidentiary

that

insupportable, or overly speculative."

are

unreasonable,

United States v. Spinney,

_____________
_______

65 F.3d 231, 234 (1st Cir. 1995).

DISCUSSION
DISCUSSION

I.
I.

The Wire Fraud Counts

The Wire Fraud Counts

We

turn first

to Czubinski's

conviction on

the nine

-8-

wire fraud counts.4

government

To support a conviction for wire fraud,

must prove

two elements

beyond a

the

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

the scheme.

United States v.
_____________

1996) (citing United States

_____________

Cir.

wire communications in furtherance

1993)).

Although

of

Sawyer, 85 F.3d 713, 723 (1st Cir.

______

v. Cassiere, 4 F.3d 1006,

________

defendant's

motion

for

1011 (1st

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

scheme

that the defendant willfully

participated in a

to defraud within the meaning of the wire fraud statute.5

____________________

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

means of false

or property

or fraudulent

representations,
or causes

money

or

by

pretenses,

promises, transmits

to be transmitted by

means of

wire . . . communication in interstate or

foreign

commerce,

signals,
purpose

any writings,

pictures,
of

or

executing

sounds
such

signs,
for

the

scheme

or

artifice, shall be fined under this title

or imprisoned

not more than

five years,

or both.

We

do not find that it was irrational

conclude

beyond

reasonable doubt

that

for a trier of fact to

Czubinski's searches

caused information from the IDRS master file in Martinsburg, West

Virginia, to
element
evidence.

be sent to his terminal

could
See,
___

reasonably
e.g.,
____

be

inferred

Testimony of

-9-

in Boston.
from

Edward

The interstate

circumstantial

Makaskill,

Trial

That

is, assuming

searches

of

the counts

taxpayer

accurately describe

returns

through

transmissions, there is insufficiant

rational

jury to conclude that

unauthorized

interstate

wire

record evidence to permit a

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,

section

under

information for

1343,

by

acquiring

certain intended personal uses;

confidential

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.
A.

Scheme to Defraud IRS of Property

Scheme to Defraud IRS of Property

The

government

correctly

notes

that

confidential

____________________

Transcript, Vol. 3

at 82 (explaining that

used by Czubinski generally

certain command codes

access information from out-of-state

computer).

The district

court's jury

instructions

on the

counts repeat both of the scheme to defraud theories:

In

this case, the government has charged

Mr. Czubinski
artifice,

with devising a

that

is, a

plan,

scheme or
to do

two

things:
(1) to defraud the IRS, the United States
Government,
taxpayers

and
of

the
the

United

depriving them of their

to

his

honest

employee; and

citizens
States

and
by

intangible right

services

as

an

IRS

wire fraud

(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"

unauthorized dissemination or other use

its

property rights.

See
___

and that

its

may deprive the owner of

Carpenter v. United States, 484 U.S.

_________
______________

19, 26

(1987) ("Confidential business information

recognized as property. . . .

in

keeping

publication,

column.).

or

the

confidential

of

the

[A newspaper] had a property right

and

making exclusive

schedule

and contents"

Where such deprivation is

use,

of

prior

to

particular

effected through dishonest

deceitful means, a "scheme to defraud," within the meaning of

wire fraud

statute, is

shown.

necessary step toward satisfying

in

has long been

this

context

is

showing

See id.
___ __

at

27.

Thus, a

the "scheme to defraud" element

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

information, without doing, or clearly intending

confidential

to do, more, is

tantamount

statute.

to a deprivation of IRS property under the wire fraud

In Carpenter, for example, the confidential information

_________

regarding the contents of a newspaper column was converted to the

defendants's use to

their substantial

(defendants participated in "ongoing

trading in anticipation" of

that

intent

authorized

searches,

browsing, even

into thinking he

constitutes

meaning of the federal fraud statutes.

-11-

See
___

id. at
__

27

scheme to share profit from

newspaper column).

Czubinski's unauthorized

to deceive the IRS

benefit.

We do

not think

if done

with the

was performing only

"deprivation"

within

the

Binding

conclusion

that

precedents,

to

"deprive"

and

good

sense,

person

of

support

their

the

intangible

property interest in confidential information under section 1343,

either some

articulable

harm

information

as a result

of the defendant's

gainful

use

information,

must

be

whether

economic sense.7

intended

or

not

must befall

by

this

the

the

of

the

activities, or some

person

use is

holder

accessing

profitable

in

the

the

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"

that

of the information.

Accordingly, without evidence

Czubinski used or intended to

(beyond mere browsing),

use the taxpayer information

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

support our

a deprivation of

property in fact

holding today, for they all involve, at a minimum, a

finding of a further intended use of the confidential information

accessed by the defendants.

from

1978),

United States v.
______________

in which

The government's best support comes

Seidlitz, 589
________

a former

employee of

F.2d

152, 160

a computer

(4th Cir.

systems firm

secretly accessed its files, but never was shown to have sold

or

____________________

For

example, had

the government

disclosed or intended to

established that

Czubinski

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

raided a

found

competitor's computer

that, at

the

time the

system, he intended

defendant

to retrieve

information that would be helpful for his own start-up, competing

computer

firm.

confidential

appeared to

In the instant case, Czubinski did indeed access

information

through

be performing his

fraudulent

duties when

passwords to perform unauthorized searches.

not proven that

pretenses

in fact he

--

he

used IRS

Nevertheless, it was

he intended to deprive the IRS of their property

interest through either disclosure or use of that information.

The resolution

it

is

of the instant case

well-established that

to be

is complex because

convicted

fraud, the defendant need not successfully carry

scheme to defraud.

of mail

or wire

out an intended

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,

confidential information need not be shown).

not contend

that

he

either that

accomplished

information.

required

to

deprivation

of interstate

It need

prove

actual use of

The government does

Czubinski actually created

some

other

not do so.

was the

intent
______

end

through

All that

to

dossiers or

use

of

the

the government was

follow

through with

of the IRS's property and the use or foreseeable use

wire transmissions pursuant

-13-

to the accomplishment

of the scheme

812 F.2d

to defraud.

754, 760

See, e.g.,
___ ____

(1st Cir.

1987).

United States v. Silvano,

_____________
_______

In

the case

at bar,

the

government failed to make even this showing.

The

not

fatal flaw in the government's case is that it has

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

Czubinski

to create

intended either

sufficient proof that

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

information.

to make

its

property

interest

in

confidential

The government's case regarding Czubinski's intent

any

testimony

of

use of

the

information he

browsed rests

on

the

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,

that Czubinski did indeed make such a comment.

fact that during

during

the

the months

period

searches -- he

in

did not

on this appeal,

Nevertheless, the

following this remark

which Czubinski

made

create dossiers (there

his

-- that

is,

unauthorized

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

____________________

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

single piece

shared taxpayer

have

evidence suggests

that

information with others, no

found beyond

browsing

of

a reasonable

taxpayer files,

he was

rational jury could

doubt that, when

doing so

Czubinski ever

Czubinski was

in furtherance

of a

scheme to use the information he browsed for private purposes, be

they

nefarious or otherwise.

that

Czubinski

disclosed,

In addition, there was no evidence

or

used

to

his

advantage,

any

information regarding political opponents or regarding the person

prosecuting his father.

Mere

browsing of the records

might have a particular

enough

to sustain a wire

of people about whom one

interest, although reprehensible, is not

fraud conviction on

a "deprivation of

intangible property" theory.

officer may

lead

Curiosity

to dismissal,

but

on the part

curiosity alone

of an

IRS

will

not

sustain a finding of participation in a felonious criminal scheme

to deprive the IRS of its property.

B.
B.

Honest Services Fraud (Section 1346)

Honest Services Fraud (Section 1346)

In

McNally v. United States, 483 U.S. 350 (1987),

_______
_____________

Supreme Court held that

the mail and wire fraud statutes

the

do not

prohibit schemes to defraud individuals of their intangible, non-

property

right to

honest government

services. Id.
___

at 359-60.9

____________________

Before McNally, however, the fraud statutes had been

_______

a broad
example,

shield"

by

this

and

other

circuits,

"read as

applying,

for

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
term

the purposes
"scheme

includes

or

of

this chapter,

artifice

to

the

defraud"

a scheme or artifice to deprive

another of the intangible right of honest

services.

18 U.S.C.

1346 (effective Nov.

11, 1988).

considering the relevant legislative

We have held, after

history, that section

1346

effectively

restores to

statutes10

their

pre-McNally
_______

officials'

schemes

to defraud

right

to honest

the scope

services.

of the

mail and

applications

individuals of

See
___

Grandmaison,
___________

to

wire fraud

government

their intangible

77 F.3d

at

566

(collecting cases).11

We

length,

the

recently had

proper

the opportunity

application

of

the

to discuss,

section

1346

at some

honest

services amendment to the wrongful acts of public officials.

Sawyer, 85 F.3d at 722-26.

______

See
___

The discussion and holding in Sawyer

______

____________________

had used
public

the mails

in furtherance

of its intangible right

of a

scheme to defraud

to honest services.

the

See, e.g.,
___ ____

Silvano,
_______

812 F.2d

754 (1st

Cir. 1987)

(applying, pre-McNally,
_______

mail fraud statute to local political corruption);

United States v. Grandmaison, 77
______________
___________

F.3d 555, 565

see generally
_____________

(1st Cir. 1996)

(discussing change wrought by McNally).

_______

10

Identical standards

defraud"

apply

in determining

the

"scheme to

element under the mail and wire fraud statutes.

States v. Boots, 80
______
_____

F.3d 580, 586

n.11 (1st Cir. 1996)

United
______

(citing

Carpenter, 484 U.S. at 25 n.6).

_________

11

Finding insufficient evidence to convict, we do not reach the

issue of
concerns.

whether the honest services

amendment raises vagueness

Cf. United States v. Waymer, 55 F.3d 564, 568-69 (11th

___ _____________
______

Cir. 1995) (rejecting facial vagueness and overbreadth

to section 1346).

-16-

challenge

directly guide

our disposition of the instant

as

a general matter, we noted in

to

honest

services "eludes

convictions

of

corruption,

such as

public

public

officials, or

disclose certain

cautioned

easy

officials

First,

Sawyer that although the right

______

definition,"

typically

honest services

involve

serious

embezzlement

of public

funds, bribery

the failure

of public

decision-makers to

conflicts of interest.

that "[t]he

appeal.12

broad scope

of

Id. at 724.
___

the mail

of

Second, we

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

must not

importantly, Sawyer
______

merely indicate wrongdoing

holds that

by a

the government

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

pre-McNally
_______

officials

servant's official

precedent

to

demonstrate that

violated state laws,

defraud citizens of

duties.

Id.
___

at 725

even

their actions were

their right to honest

where

In other

engage

reprehensible

in

____________________

words, "although

misconduct

public

not found to

services, because the

officials did not actually fail to perform their official

properly).

(citing

a public

related

duties

official might

to

an

official

12

In Sawyer, we
______

the mail

vacated and remanded

for further factfinding

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

violation of

conviction

statute,

was vacated

because the

in itself, was held insufficient

the gift

to establish a scheme

to defraud the public of its intangible right to honest services.

See id.
___ ___

-17-

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."

Applying these

principles to Czubinski's

clear that his conviction

outside

of

Czubinski

the

core

cannot stand.

of

was not bribed

decision-making capacity.

receive, nor

tangible

can it

benefit.

honest

First, this

services

precedents.

in any public

Nor did he embezzle funds.

official

he intended to

duty

was

He did not

receive, any

to

respond

informational requests from taxpayers regarding their returns,

relatively straightforward

specter

of

secretive,

task that

simply does not

self-interested

is

case falls

fraud

or otherwise influenced

be found that

His

acts, it

Id.
___

action,

as

to

raise the

does

discretionary,

decision-making

McNieve, 536 F.2d

_______

fraud

violation

1245, 1251

where

city

role.

Cf.
___

United States
______________

(8th Cir. 1976)

employee

(finding no

accepted

v.

mail

gratuities

in

language

of

connection with non-discretionary duty).

Second,

Sawyer is
______

we believe

particularly

that

appropriate

the cautionary

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

searches

--

would

be

-- the performance of unauthorized

punishable

-18-

by

anything

more

than

dismissal.13

"To allow every transgression of state governmental

obligations to amount to mail

such

violation

countenanced."

into

fraud would effectively turn every

federal

felony;

Sawyer, 85 F.3d at 728.

______

this

Here, the

of transforming governmental workplace violations

cannot

be

threat is one

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

conviction that

scheme to

us as

in this

doubts

as to

can be outweighed

defraud.

instructing

defraud

raise

The third

to

conclusive consideration

propriety

by sufficient

of

requirements

settles any

is that

this

evidence of

principle identified in

the basic

context,

the

of a

remaining

Sawyer,
______

scheme

doubts.

the government simply

to

The

did not

prove that Czubinski deprived, or intended to deprive, the public

or his

he

employer of their right to his honest services.

clearly

committed

information, there is no

wrongdoing

in

searching

Although

confidential

suggestion that he failed to

carry out

his official tasks adequately, or intended to do so.

The government alleges that,

the

public of his

in addition to defrauding

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

taxpayer

penalty

for

"unauthorized

accessing"

information ranges from "Reprimand" to "Removal").

-19-

of

IRS

as

well.

contention

Czubinski

The

IRS

sufficiently

did not

is

a public

answered

defraud

entity,

by

our

the public

rendering

holding

of his

above

this

that

honest services.

Even if the IRS were a private employer, however, the pre-McNally

_______

honest

services

indicate that

employer

more

convictions

there must be a

that involves

serious

involving

fraud

breach of a fiduciary

self-dealing of

than the

private

misconduct at

an

issue

victims

duty to an

order significantly

here.

See, e.g.,
___ ____

United States v. Lemire, 720 F.2d 1327, 1332-34 (D.C. Cir. 1983)
______________
______

(employee took bribes

and did not

overcharging); United States v.

_____________

1983)

(employees

used

disclose that contractor

Seigel, 717 F.2d 9, 14

______

corporate

funds

for

was

(2d Cir.

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).

Czubinski

Once again, the

intended to

private purposes, and

do not

government has failed

use

the IRS

files

he browsed

hence his actions, however

rise to the level of a

to prove that

for

any

reprehensible,

scheme to defraud his employer of

his honest services.

II.
II.

The Computer Fraud Counts

The Computer Fraud Counts

Czubinski

was convicted

on all

fraud counts on which he was indicted;

unauthorized searches that also

ten

wire fraud counts in

convicted

of

violating

the computer

these counts arise out of

formed the basis of four

the indictment.

18

four of

U.S.C.

of the

Specifically, he was

1030(a)(4),

provision

enacted in the Computer Fraud and Abuse Act of 1986.

-20-

1030(a)(4) applies to:

whoever .

. . knowingly and

with intent

to defraud, accesses

a Federal

computer

authorization,

without

exceeds authorized access,

of

such

fraud

and

unless the

conduct
obtains

interest

and by

furthers the
anything

object of the

thing obtained consists

or
means

intended
of

value,

fraud and

the

only of the

use

Section

of the computer.

We

have never

before addressed

unquestionably exceeded

computer.14

of

section 1030(a)(4).

authorized access to a

Czubinski

Federal interest

On appeal he argues that he did not obtain "anything

value."

We

agree, finding

that

his searches

of taxpayer

return information did not satisfy the statutory requirement that

he

obtain

"anything of

relative to one's

to show that the

Czubinski

The

value of

information is

needs and objectives; here, the government had

information was valuable to Czubinski

of a fraudulent scheme.

that

value."

intended

in light

The government failed, however, to prove

anything

more than

to

satisfy

idle

curiosity.

The

that more

plain language

than mere

of

unauthorized

section 1030(a)(4)

use is

emphasizes

required: the

"thing

obtained"

showing

may not

of some

merely be the

additional

access is a means -- that is

show that Czubinski's end

unauthorized use.

end --

to

which the

lacking here.

It

is the

unauthorized

The evidence did not

was anything more than to

satisfy his

____________________

14

"[T]he

term 'exceeds

authorized access' means

computer with authorization and

alter

information

in the

to access

to use such access to

computer

entitled so to obtain or alter."

that

18 U.S.C.

-21-

the

obtain or

accesser is

1030(e)(6).

not

curiosity

and

by viewing

information about

political rivals.

recorded, or used the

use

or

No evidence suggests that he printed out,

information he browsed.

could conclude beyond a

to

friends, acquaintances,

disclose

No

rational jury

reasonable doubt that Czubinski intended

that

information cannot be deemed

information,

and

merely

viewing

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."

interpretation, statutory language

"In

the

game

of

statutory

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).

19

F.3d 685, 699

Rhode Island v.
____________

(1st Cir. 1994) (citing

Bell, 465
____

U.S. 555,

comments

suggest that

punish

attempts

Narragansett Indian Tribe,

_________________________

567 (1984)).

Here,

a Senate

Congress intended

to steal

Grove City College v.

__________________

co-sponsor's

section 1030(a)(4)

valuable data,

and

did not

to

wish to

punish mere unauthorized access:

The

acts

of

proposed
thefts

fraud

we

are

section 1030(a)(4)
in

which

someone

addressing

in

are essentially
uses

federal

____________________

15

The

computer
indictment

district
fraud

court, in
counts

in

denying a
the

sufficiently alleged

motion

indictment,
that the

to dismiss
found

that

the

the

confidential taxpayer

information was itself a "thing of value" to Czubinski, given his

ends.

The indictment,

information, such

of course, alleged specific uses

for the

as creating dossiers on KKK members, that were

not proven at trial.

In light of the trial evidence -- which, as

we have said, indicates

or

that there was no

further use of the

Czubinski

did

not

recording, disclosure

confidential information --

obtain

"anything

of

value"

we find that
through

his

unauthorized searches.

-22-

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,

misdemeanor.

132 Cong.

Rec. 7128,

7129, 99th Cong.,

2d. Sess. (1986).

The

Senate Committee

section

should

Report further

apply to

underscores the fact

those

who

that this

steal information

through

unauthorized access as part of an illegal scheme:

The

Committee

must be a

remains convinced

clear distinction between computer

theft, punishable as a felony

1030(a)(4)],
punishable

and
in

misdemeanor
The

that there

element in

computer

the

[under

[under section

first

instance

a different

the

new

trespass,
a

provision].

paragraph

requiring a showing of an intent to

is meant to preserve

as

(a)(4),
defraud,

that distinction, as is

the requirement that the

obtained via computer

property wrongfully

furthers the

intended

fraud.

S.

Rep. No.

U.S.C.C.A.N.

evidence

132,

2479.

99th

Cong.,

For the

2d

Sess.,

same reasons

reprinted in
_____________

we deemed

1986

the trial

could not support a finding that Czubinski deprived the

IRS of its property,

see discussion of wire fraud

under section

___

1343 supra,
_____

we find

information

in

that

Czubinski has

furtherance

of

not obtained

fraudulent

scheme

valuable

for

the

purposes of section 1030(a)(4).

CONCLUSION
CONCLUSION

We

mail

curse.

fall

add a cautionary note.

and wire fraud statutes

The broad

are both their

language of the

blessing and their

They can address new forms of serious crime

within more

specific legislation.

-23-

that fail to

See United States v.

___ ______________

Maze,
____

414 U.S. 395, 405-06 (1974) (observing that the mail fraud

statute serves "as a

to tackle

new types of frauds

is developed)

they

cannot

basis of

to the

reasonably

insistence,

before

Also

trial,

On the other

The

by the

on

federal prosecutors,

instigators to

case at bar

discomforting

the

hand,

behavior that, albeit

aesthetics of

be expected

a federal felony.

category.

dissenting).

prosecute kinds of

morals or

"stopgap device"

before particularized legislation

(Burger, C.J.,

might be used to

offensive

latter

first line of defense" or

is

admission

form the

falls within

the

of

the

prosecution's

inflammatory

evidence

regarding

supremacist

defraud,

the

defendant's

groups purportedly as a

when, on appeal, it

itself is

sufficient ground

membership

in

means to prove

white

a scheme to

argues that unauthorized access in

for

conviction on

all

counts.

Finally, we caution that the wire fraud statute must not serve as

a vehicle for

against the

prosecuting only

tide, no

those citizens

matter how incorrect

whose views

or uncivilized

run

such

views are.

For

district

the reasons

court's denial

acquittal on counts 1, 2,

stated in this

of defendant's

opinion, we

motion for

hold the

judgment of

and 4 through 14, to be in error.

defendant's conviction is thus reversed on all counts.

reversed
________

The

-24-