Commonwealth v. Piersall

853 N.E.2d 210, 67 Mass. App. Ct. 246, 2006 Mass. App. LEXIS 926
CourtMassachusetts Appeals Court
DecidedAugust 30, 2006
DocketNo. 05-P-1607
StatusPublished

This text of 853 N.E.2d 210 (Commonwealth v. Piersall) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Piersall, 853 N.E.2d 210, 67 Mass. App. Ct. 246, 2006 Mass. App. LEXIS 926 (Mass. Ct. App. 2006).

Opinion

Dreben, J.

After a jury trial, the defendant, who appeared pro se, was convicted of fifteen counts of unauthorized access to a computer system (G. L. c. 266, § 120F) and of one count of criminal harassment (G. L. c. 265, § 43A[a]). On appeal, now represented by counsel, the defendant does not contest the conviction for harassment. What he claims is that “[ajlthough the Commonwealth may have proved that unauthorized access to a computer system occurred on at least one occasion, the Commonwealth failed to prove that the elements of unauthorized access occurred fifteen separate times.” We agree that the [247]*247evidence presented to the jury did not warrant fifteen convictions.

Because of a lack of direct authority discussing how the number of offenses under G. L. c. 266, § 120F, is to be determined, we will address that issue prior to discussing the particular facts here involved. The statute describes the offense as follows:

“Whoever, without authorization, knowingly accesses a computer system by any means, or after gaining access to a computer system by any means knows that such access is not authorized and fails to terminate such access, shall be punished by imprisonment in the house of correction for not more than thirty days or by a fine of not more than one thousand dollars, or both.
“The requirement of a password or other authentication to gain access shall constitute notice that access is limited to authorized users.”1

G. L. c. 266, § 120F, inserted by St. 1994, c. 168, § 3.

The defendant and the Commonwealth agree on two principles: one, that each unauthorized “login”2 to a computer system constitutes a separate offense, and two, that the number of documents accessed upon any given “login” is not relevant in determining the number of convictions. We are in accord.

The first principle that each separate unauthorized “login” to a computer system is a separate offense finds support in Ebel-ing v. Morgan, 237 U.S. 625, 629 (1915). There, the defendant was charged with numerous counts under § 189 of the Criminal Code3 providing penalties for “[wjhoever shall tear, cut, or otherwise injure any mail bag, pouch, or other thing used or designed for use in the conveyance of the mail . . . .” The Supreme Court held that the offense as to each separate bag was complete when that bag was cut. Similarly, here, the of[248]*248fense is complete as to each separate act of gaming unauthorized access (e.g., by “login”) to a computer system.

The second principle is that each unauthorized “login” to a computer system must be distinguished from the subsequent accessing of individual documents during that “login.” In Commonwealth v. Donovan, 395 Mass. 20, 21-23 (1985) (Donovan), the defendants attached a “phony” night deposit box to a bank and received deposits from seven different bank customers. The jury found the defendants guilty on seven indictments for larceny. In reversing and holding that there was only one larceny, the Supreme Judicial Court quoted from State v. Myers, 407 A.2d 307, 309 (Me. 1979), in turn quoting from 2 Anderson, Wharton’s Criminal Law & Procedure § 451 (1957): “The stealing of property from different owners at the same time and at the same place constitutes but one larceny.” Donovan, 395 Mass, at 30. The Donovan court considered analogous the cases interpreting 18 U.S.C. § 1708 (1982), the Federal statute proscribing theft from the United States mail. Those cases, cited in Donovan, 395 Mass. at 30-31, hold that taking several letters from a mail depository simultaneously is one criminal act even though the letters are separate. Thus, whether a defendant should be charged with multiple counts of mail theft or a single count depends largely on whether the defendant stole multiple letters or packages at the same time or at different times. See Johnston v. Lagomarsino, 88 F.2d 86, 88 (9th Cir. 1937). We think the same reasoning applies here: when a defendant, without authorization, logs into a computer system and during that one “login” looks at, prints, copies, or otherwise accesses multiple documents, there is only one violation.

We now turn to the evidence elicited at the defendant’s trial. The defendant and his former wife, Doris, had gone through a bitter divorce, and at the time of trial were still contesting the question of custody of their daughter. As the harassment conviction is not being appealed, we need not detail the events that led to that conviction other than to state that relations between the defendant and Doris remained hostile.

The unauthorized access to Doris’s electronic mail messages (e-mail) was disclosed when the defendant, on August 6, 2003, sent an e-mail to Nancy, the former wife of Doris’s fiancé, David. That e-mail included the following:

[249]*249“I found you through emails shared by David to Doris. My daughter Lauren, informed me of my ex wife’s password which has now been changed. I have in my possession, three emails from you to David, that David shared with Doris. The original email and his edited reply. I would gladly share them with you but they are on paper, not in a file. If you wish to know more, I would gladly give you the dates and details of them.”

Nancy was a witness at trial. She testified that, at her request, she received from the defendant copies of numerous e-mails containing highly personal communications between David and Doris as well as one from her (Nancy’s) daughter to David, who is her daughter’s father.

Copies of the e-mails from the defendant to Nancy and of the eighteen e-mail printouts mailed to her by the defendant were exhibits at trial.4 On the bottom right-hand comer of each of the eighteen e-mail printouts appears a mechanically printed date. The earliest comer date is “3/30/03” and the latest is “7/14/ 03.” Several printouts have the same date in the bottom right-hand comer. Thirteen different comer dates appear on the copies of the eighteen printouts the defendant sent to Nancy.

The fifteen counts of the criminal complaint charging the defendant with violations of G. L. c. 266, § 120F, were identical and stated that the defendant

“on 11/07/2002 THRU 10/31/2003: (1) without authorization, did knowingly access a computer system; or (2) after gaining access to a computer system, and knowing that such access was not authorized, did fail to terminate such access, in violation of G. L. c. 266, § 120F. (PENALTY: house of correction not more than 30 days; or not more than $1000 fine; or both.)”

We note that the November 7, 2002, date is the date of the earliest e-mail between Doris and David that was sent to Nancy. The November 7, 2002, printout has “5/13/03” on the bottom right-hand comer.

[250]*250At trial the comer dates were never mentioned by the prosecutor, the defendant, the judge, or by any of the witnesses. The number of violations was hardly mentioned.

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Related

Ebeling v. Morgan
237 U.S. 625 (Supreme Court, 1915)
Johnston v. Lagomarsino
88 F.2d 86 (Ninth Circuit, 1937)
State v. Myers
407 A.2d 307 (Supreme Judicial Court of Maine, 1979)
Commonwealth v. Donovan
478 N.E.2d 727 (Massachusetts Supreme Judicial Court, 1985)

Cite This Page — Counsel Stack

Bluebook (online)
853 N.E.2d 210, 67 Mass. App. Ct. 246, 2006 Mass. App. LEXIS 926, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-piersall-massappct-2006.