U.S. v. Czubinski

• Decision Date: 07 October 1996
• Docket Number: No. 96-1317,96-1317
• Citation: 106 F.3d 1069
• Parties: -1664, 65 USLW 2571, 97-2 USTC P 50,622 UNITED STATES, Appellee, v. Richard W. CZUBINSKI, Defendant--Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1069

106 F.3d 1069

79 A.F.T.R.2d 97-1664, 65 USLW 2571,

97-2 USTC P 50,622

UNITED STATES, Appellee, v. Richard W. CZUBINSKI, Defendant--Appellant.

No. 96-1317.

United States Court of Appeals, First Circuit.

Heard Oct. 7, 1996.

Decided Feb. 21, 1997.

Susan B. Hanmer, with whom Oliver C. Mitchell, Jr., Louis J. Scerra, Jr., Boston, MA, and Goldstein & Manello, P.C., were on brief, for defendant-appellant.

S. Theodore Merritt, Assistant United States Attorney, with whom Donald K. Stern, United States Attorney, Boston, MA, and Amy B. Lederer, Assistant United States Attorney, Washington, DC, were on brief, for appellee.

Before TORRUELLA, Chief Judge, BOWNES, Senior Circuit Judge, and STAHL, Circuit Judge.

TORRUELLA, Chief Judge.

Defendant-appellant Richard 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

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 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 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 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 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.

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.

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 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

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" 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.

does not deprive the IRS of any property and because section 1346, the intangible 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.

We reverse on the ground that the district court erred in denying Czubinski's motion for acquittal, and therefore bypass Czubinski's other claims.

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, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); see also United States v. Valle, 72 F.3d 210, 216 (1st Cir.1995). The scope...