United States v. Nicholas Middleton

231 F.3d 1207, 2000 Daily Journal DAR 12198, 2000 Cal. Daily Op. Serv. 9194, 2000 U.S. App. LEXIS 29131, 2000 WL 1707925
CourtCourt of Appeals for the Ninth Circuit
DecidedNovember 16, 2000
Docket99-10518
StatusPublished
Cited by51 cases

This text of 231 F.3d 1207 (United States v. Nicholas Middleton) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Nicholas Middleton, 231 F.3d 1207, 2000 Daily Journal DAR 12198, 2000 Cal. Daily Op. Serv. 9194, 2000 U.S. App. LEXIS 29131, 2000 WL 1707925 (9th Cir. 2000).

Opinion

GRABER, Circuit Judge:

Defendant Nicholas Middleton challenges his conviction for intentionally causing damage to a “protected computer” without authorization, in violation of 18 U.S.C. § 1030(a)(5)(A). Defendant asks us to interpret the statute, which prohibits conduct causing damage to “one or more individuals,” 18 U.S.C. § 1030(e)(8)(A), to exclude damage to a corporation. Defendant also argues that the trial court incorrectly instructed the jury on the “damage” element of the offense and that the government presented insufficient evidence of the requisite amount of damage. We disagree with each of Defendant’s contentions and, therefore, affirm the conviction.

FACTUAL AND PROCEDURAL BACKGROUND 1

Defendant worked as the personal computer administrator for Slip.net, an Internet service provider. His responsibilities included installing software and hardware on the company’s computers and providing technical support to its employees. He had extensive knowledge of Slip-net’s internal systems, including employee and computer program passwords. Dissatisfied with his job, Defendant quit. He then began to write threatening e-mails to his former employer.

Slip.net had allowed Defendant to retain an e-mail account as a paying customer after he left the company’s employ. Defendant used this account to commit his first unauthorized act. After logging in to Slip.net’s system, Defendant used a computer program called “Switch User” to switch his account to that of a Slip.net receptionist, Valerie Wilson. This subterfuge allowed Defendant to take advantage of the benefits and privileges associated with that employee’s account, such as creating and deleting accounts and adding features to existing accounts.

*1209 Ted Glenwright, Slip.net’s president, discovered this unauthorized action while looking through a “Switch User log,” which records all attempts to use the Switch User program. Glenwright crosschecked the information with the company’s “Radius Log,” which records an outside user’s attempt to dial in to the company’s modem banks. The information established that Defendant had connected to Slip.net.’s computers and had then switched to Wilson’s account. Glenwright immediately terminated Defendant’s email account.

Nevertheless, Defendant was able to continue his activities. Three days later, he obtained access to Slip.net’s computers by logging in to a computer that contained a test account and then using that test account to gain access to the company’s main computers. Once in Slip.net’s main system, Defendant accessed the account of a sales representative and created two new accounts, which he called “TERPID” and “SANTOS.” Defendant used TERPID and SANTOS to obtain access to a different computer that the company had named “Lemming.” Slip.net used Lemming to perform internal administrative functions and to host customers’ websites. Lemming also contained the software for a new billing system. After gaining access to the Lemming computer, Defendant changed all the administrative passwords, altered the computer’s registry, deleted the entire billing system (including programs that ran the billing software), and deleted two internal databases.

Glenwright discovered the damage the next morning. He immediately contacted the company’s system administrator, Bruno Connelly. Glenwright and Connelly spent an entire weekend repairing the damage that Defendant had caused to Slip, net’s computers, including restoring access to the computer system, assigning new passwords, reloading the billing software, and recreating the deleted databases. They also spent many hours investigating the source and the extent of the damage. Glenwright estimated that he spent 93 hours repairing the damage; Connelly estimated that he spent 28 hours; and other employees estimated that they spent a total of 33 hours. Additionally, Slip.net bought new software to replace software that Defendant had deleted, and the company hired an outside consultant for technical support.

Defendant was arrested and charged with a violation of 18 U.S.C. § 1030(a)(5)(A). He moved to dismiss the indictment, arguing that Slip.net was not an “individual” within the meaning of the statute. The district court denied the motion, holding that “the statute encompasses damage sustained by a business entity as well as by a natural person.” United States v. Middleton, 35 F.Supp.2d 1189, 1192 (N.D.Cal.1999).

The case was then tried to a jury. Defendant filed motions for acquittal, arguing that the government had failed to prove that Shp.net suffered at least $5,000 in damage. The district court denied the motions. Defendant requested a jury instruction on the meaning of “damage.” This request, too, was denied, and the court gave a different instruction.

The jury convicted Defendant. The district court sentenced him to three years’ probation, subject to the condition that he serve 180 days in community confinement. The court also ordered Defendant to pay $9,147 in restitution. This timely appeal ensued.

STANDARDS OF REVIEW

We review de novo the district court’s interpretation of a statute. United States v. Frega, 179 F.3d 793, 802 n. 6 (9th Cir.1999). We also review de novo whether a jury instruction misstates the elements of a statutory crime. Id. at 806 n. 16. We review a challenge to the sufficiency of the evidence by examining the evidence in the light most favorable to the prosecution and determining whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, *1210 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

DISCUSSION

A. “One or More Individuals ”

Title 18 U.S.C. § 1030(a)(5)(A) prohibits a person from knowingly transmitting “a program, information, code, or command, and as a result of such conduct, intentionally causing] damage without authorization, to a protected computer.” A “protected computer” is a computer “which is used in interstate or foreign commerce or communication.” 18 U.S.C. § 1030(e)(2)(B). Defendant concedes that Slip.net’s computers fit within that definition. The statute defines “damage” to mean “any impairment to the integrity or availability of data, a program, a system, or information, that causes loss aggregating at least $5,000 in value during any 1-year period to one or more individuals.” 18 U.S.C. § 1030(e)(8)(A). Defendant argues that Congress intended the phrase “one or more individuals” to exclude corporations. We disagree.

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231 F.3d 1207, 2000 Daily Journal DAR 12198, 2000 Cal. Daily Op. Serv. 9194, 2000 U.S. App. LEXIS 29131, 2000 WL 1707925, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-nicholas-middleton-ca9-2000.