United States v. Mikhy Farrera-Brochez

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 20a0556n.06

No. 19-6152

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED UNITED STATES OF AMERICA ) Sep 29, 2020 ) DEBORAH S. HUNT, Clerk Plaintiffs-Appellee, ) ) v. ) ON APPEAL FROM THE ) UNITED STATES DISTRICT MIKHY FARRERA-BROCHEZ ) COURT FOR THE EASTERN ) DISTRICT OF KENTUCKY Defendant-Appellant. ) )

Before: GUY, CLAY, and KETHLEDGE, Circuit Judges.

KETHLEDGE, Circuit Judge. Mikhy Farrera-Brochez began his crusade against the

Singaporean Government over eight years ago. It culminated in two threatening emails to

Singaporean officials and three criminal convictions in the United States—two for extortion and

one for misuse of the identification of others. Farrera-Brochez argues that insufficient evidence

supported his convictions and that his sentence was unreasonable. We reject his arguments and

affirm.

I.

In 2008, Farrera-Brochez moved to Singapore, where he lived with his husband, Dr. Ler

Teck Siang. Dr. Ler worked for the Singaporean Ministry of Health and led its National Public

Health Unit. The Unit maintained an HIV registry that collected the names, birthdates, and other

identifying information of any person diagnosed with HIV in Singapore. The Ministry closely No. 19-6152, United States v. Farrera-Brochez

guarded the information and used it primarily to control the spread of HIV. Only 11 employees

had regular access to the database; Dr. Ler was one of them.

In 2012, Farrera-Brochez gained access to the registry, which then contained the

information of over 14,000 persons with HIV. Farrera-Brochez thought the Singaporean “regime”

was using the information for “nefarious reasons”—specifically, to discriminate against gay men

like him and his husband. Over the course of four years, Farrera-Brochez contacted various

Ministry officials, who purportedly denied the registry’s existence. Farrera-Brochez also tried,

without success, to shut down the database.

In 2016, Farrera-Brochez sent screenshots of the database to Singaporean government

officials. They reported the matter to the police, who began investigating his possession of the

registry information. Farrera-Brochez also sent a copy of the files to his mother in Kentucky and

instructed her to download them, telling her that his request “meant life or death.” Singaporean

police soon raided his residence and seized his computer. Farrera-Brochez was arrested and

convicted on several drug and fraud offenses, and sentenced to 28 months’ imprisonment. His

husband was convicted on different charges and was still serving his term when Farrera-Brochez

was released in 2018.

Farrera-Brochez then moved to Kentucky, where he retrieved the HIV-registry files from

his mother. He also contacted the Lexington Police, the FBI, the State Department, and Congress

to complain about Singapore’s registry and its “politically motivated” criminal prosecution of him.

Those complaints spurred no action, so Farrera-Brochez took matters into his own hands.

In January 2019, Farrera-Brochez emailed the Singaporean Supreme Court and Prime Minister, an

American diplomat stationed in Singapore, and a CNN reporter, among others. The email included

three links that led to copies of the HIV database and its confidential personal information; two

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links were not password-protected. In his email, Farrera-Brochez stated, “I demand that the

Supreme Court reopen my case” and certain “information needs to be made available to the court

and my husband’s judge.” He also asked whether “the courts [were] going to act and hold these

two prosecutors in contempt of court[.]”

A month later, in February 2019, Farrera-Brochez sent a second email, again addressed to

Singapore’s Prime Minister and other government officials, as well as to a dozen Singaporean and

American reporters. In this email, Ferrera-Brochez warned, “I will continue releasing . . .

evidence” about the compromised database “until the [Singaporean] regime stops the HIV Registry

and releases my husband Dr. Ler Teck Siang from the unlawful imprisonment based on false

charges.” The next day, Farrera-Brochez called the FBI and said, “They will never get [the breach]

covered up without my cooperation . . . [which] depends on them releasing my husband, not

touching his medical license, and giving me back my cats.”

A federal grand jury thereafter indicted Farrera-Brochez on two counts of using interstate

and foreign commerce to extort (one count for each email), in violation of 18 U.S.C. § 875(d), and

one count of possessing and transferring personal identifying information through interstate and

foreign commerce, in violation of 18 U.S.C. § 1028(a)(7).

The case later went to trial, where most of the facts were undisputed. Farrera-Brochez

reiterated that his goal in sending the emails was “to get the case reopened and hopefully get these

charges . . . overturned and [his] husband released from them.” Dr. Vernon Lee, the director of

communicable diseases at the Singaporean Ministry of Health, testified that Farrera-Brochez’s

actions forced the Ministry to issue a press release about the data breach and attempt to contact

every person on the registry. Many of the persons reached, Dr. Lee testified, were “extremely

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fearful” and “expressed a lot of anxiety” that their information might fall into the wrong hands.

Some feared losing their jobs, and others became “depressed or were suicidal because of this.”

After two days of testimony, a jury convicted Farrera-Brochez on all charges. The district

court sentenced Farrera-Brochez to 24 months’ imprisonment. This appeal followed.

II.

A.

Farrera-Brochez challenges the sufficiency of the evidence supporting each conviction.

We must uphold his convictions if, “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) (emphasis in original).

The parties agree, and we will assume, that extortion in violation of 18 U.S.C. § 875(d) has

the following elements: first, that the defendant knowingly sent a communication in interstate or

foreign commerce; second, that the communication contained a “wrongful” and “true” threat to

injure the property or reputation of another; and third, that the defendant intended to extort

something “of value.” See United States v. Coss, 677 F.3d 278, 283-85 (6th Cir. 2012).

Farrera-Brochez concedes the first element—i.e., that he knowingly sent the two emails

from Kentucky in interstate or foreign commerce. As to the second element—whether Farrera-

Brochez made a wrongful and true threat—Farrera-Brochez disputes only that his threats were

“wrongful.” A threat is “wrongful” if it has “no nexus to a claim of right.” Coss, 677 F.3d at 286.

Farrera-Brochez had no rightful claim to the things he demanded here, namely the release of his

husband, the reopening of their criminal cases, and the return of his cats from the

Singaporean government in exchange for his silence about the HIV registry and agreement not to

publish its information. Nor was he legally entitled to possess the information on the registry.

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Farrera-Brochez’s threat to injure the Singaporean government’s reputation by publicizing its

registry information was therefore wrongful.

That leaves the third element, whether Farrera-Brochez intended to extort something “of

value” by means of his threats. Farrera-Brochez says the government failed to prove this element

because, he says, he acted for the greater public good rather than for any financial benefit to

himself. But “value” is not measured in only dollars; it is enough that the thing demanded has

subjective value to the person making the threat. See United States v. Gorman, 807 F.2d 1299,

1304-05 (6th Cir. 1986). Farrera-Brochez’s demands had obvious subjective value to him, which

meant the government presented sufficient proof of this element.

Farrera-Brochez likewise argues that the evidence did not support his conviction for the

use of another person’s identity to commit a felony. The identifying information at issue here was

the personal information of the approximately 14,000 people on the registry. Farrera-Brochez

disputes only that the government proved that he used this information with “the intent to commit,

or to aid or abet, or in connection with, any unlawful activity that constitutes a violation of Federal

law.” 18 U.S.C. § 1028(a)(7). Specifically, he denies that he used this information with the intent

to commit the crime of extortion. That argument is thus derivative of his arguments with respect

to his extortion convictions, and fails for the same reasons. The evidence was therefore sufficient

to support this conviction.

B.

Farrera-Brochez challenges his sentence. In considering that challenge, we review the

district court’s legal conclusions de novo, its factual findings for clear error, and the sentence’s

substantive reasonableness for an abuse of discretion. United States v. Volkman, 797 F.3d 377,

398-99 (6th Cir. 2015).

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Farrera-Brochez argues that, in determining his guidelines range, the district court wrongly

applied a “multiple-victims” enhancement. See USSG § 2B1.1(b)(2)(A)(i). Specifically, Farrera-

Brochez maintains that none of the 14,000 people on the HIV registry were “victims” because, he

says, they did not suffer economic or physical harm. But Farrera-Brochez overlooks Application

Note 4(E) to § 2B1.1(b)(2), which provides that, in cases (like this one) “involving means of

identification,” a victim can be “any individual whose means of identification was used unlawfully

or without authority.” That definition comprises the 14,000 people whose identifying information

Farrera-Brochez used to commit the crime of extortion. The evidence therefore supported this

enhancement.

Farrera-Brochez finally argues that his sentence was substantively

unreasonable. Although Farrera-Brochez’s guidelines range was 6 to 12 months’ imprisonment,

the district court imposed a sentence of 24 months. A district court is well within its discretion “to

vary from the advisory Guidelines” when the sentencing judge finds that the case falls “outside

the ‘heartland’” or “mine-run” of cases “to which the Commission intends individual Guidelines

to apply.’” Kimbrough v. United States, 552 U.S. 85, 109 (2007) (quoting Rita v. United States,

551 U.S. 338, 351 (2007)). This case is far removed from the mine-run of extortion and identity

theft cases. As the court observed, Farrera-Brochez’s guidelines range was “not sufficient to

reflect the harm to the victims, the type of harm that has occurred to these individuals,” and the

“great number of individuals that are victims as defined by the guidelines.” The district court thus

found Farrera-Brochez’s range was “woefully inadequate” and that a sentence of 24 months of

imprisonment was therefore “absolutely necessary to meet all of the statutory factors” recited in

18 U.S.C. § 3553(a), including “the seriousness of the offense,” “the defendant’s history and his

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characteristics, lack of remorse, and his willingness to harm any person that . . . would disagree

with him.” Suffice it to say that the district court did not abuse its discretion.

The district court’s judgment is affirmed.

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