U.S. v. Sutcliffe

• Citation: 505 F.3d 944
• Decision Date: 11 October 2007
• Docket Number: No. 04-50189.,04-50189.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Steven William SUTCLIFFE, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

505 F.3d 944

UNITED STATES of America, Plaintiff-Appellee, v. Steven William SUTCLIFFE, Defendant-Appellant.

No. 04-50189.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 7, 2007.

Filed October 11, 2007.

Sung B. Park, Van Nuys, CA, for the defendant-appellant.

Debra Wong Yang, Thomas P. O'Brien, and Elena J. Duarte (argued), United States Attorney's Office, Los Angeles, CA, for the plaintiff-appellee.

Appeal from the United States District Court for the Central District of California, A. Howard Matz, District Judge, Presiding. D.C. No. CR-02-00350-AHM.

Before: MONROE G. McKAY,^* ALEX KOZINSKI, and STEPHEN S. TROTT, Circuit Judges.

McKAY, Circuit Judge:

Following a three-week jury trial, Defendant was convicted of three counts of making interstate threats to injure in violation of 18 U.S.C. § 875(c) and five counts of transferring social security numbers with the intent to aid and abet unlawful activity in violation of 18 U.S.C. § 1028(a)(7). He raises numerous issues on appeal.

BACKGROUND

Defendant, a computer technician, was hired by Global Crossing Development Company in August 2001. Shortly thereafter, however, his employment was terminated because he refused to provide the Human Resources Department with his social security number, Global Crossing discovered that he had failed to disclose past criminal convictions on his job application, and he threatened the director of Human Resources. After his termination, Defendant began picketing outside the Global Crossing building with a sign referring to a website he had created. On this website, Defendant displayed Global Crossing employees' personal information, including payroll information, social security numbers, birth dates, and residential addresses, with some of this information hyperlinked to an article about identity theft.

When Global Crossing's manager of policy enforcement was informed of the website he began periodically archiving copies of the website. These copies were turned over to the FBI, which also archived screen-shots of the website on three occasions. As they visited the website, Global Crossing officials and the FBI saw increasing amounts of personal information posted online. Specifically, the number of Global Crossing employees whose social security numbers were displayed online increased from approximately fifteen on October 24, 2001, to well over a thousand on December 3, 2001. Global Crossing obtained a temporary restraining order against Defendant in October 2001. A process server drove to Defendant's California residence to serve the order on him in a vehicle bearing South Dakota license plates. As she was leaving his residence after serving the papers on him, she observed Defendant writing something on a piece of paper. That night, she saw that her name and the vehicle's license plate number had been posted on the website. During subsequent visits to the website, she read several statements addressed to her. On October 24, 2001, one week after she served the order on Defendant, a page on the website stated:

Do you really think I am just some computer geek? You are not even close!

If you don't like seeing your license plate on this website, here is some advice next time you attempt to stake-out my home, get a rental-car! . . .

By the way, I was planning on taking a trip to South Dakota real soon to visit Mt. Rushmore, maybe we can "hook-up." Then maybe we could talk about this sudden rage and anger you have about seeing your license plate number published on this site? You think seeing that number is bad . . . trust us when we say [it] can get much, much, worse.

To close, [Process Server], if you call this house again and threaten me, or my family, or ever appear near me, or my family, I will personally send you back to the hell from where you came.

(E.R. at 92).¹

On January 31, 2002, a page on the website read:

[Process Server], have you ever been stabbed with a knife? I have. A real big one, punctured my lung. . . . Anyhow, the reason I am telling you this is to let you know I understand you were just doing your job, just like I was just trying to do my job. Just as that man was doing his job, which at the time was to try to kill me. As I forgave him, I can forgive you. This does not mean however I want to see or meet this man again.

I really don't take kindly to people threatening me or lying to the courts that they served me with a T.R.O. . . .

Our paths are now crossed and we are forever joined . . . to deal with that I am going to make you a one time offer. If I never see or hear from or of you again, I will forget you . . . . However, if I do ever hear your name mentioned against me ever again I will personally add you to my domain list. I think you understand the issues now enough to understand what this means. If I ever see you near my family again, and I know how to stalk too, I will kill you. That's my offer.

Now, go in the peace and lie about me no more.

(G.E.R. at 495.)

Defendant also used the website to express his dissatisfaction with Global Crossing's former assistant general counsel. On March 17, 2002, the website included a page stating that it was "Dead-icated" to this attorney. (E.R. at 100.) This page was accompanied by a sound file of frightening music and a voice stating: "Welcome to my domain. This is all far from over." (E.R. at 100; G.E.R. at 295.) A link on this page led to a page displaying personal information about the attorney, including her home address, home phone number, social security number, signature, and date of birth. This page was linked to a detailed map showing the location of her home. Another link on the page opened a file displaying a photograph of her with her young daughter, while a voiceover stated: "I can outrun you. I can outthink you. I can outphilosophize you, and I'm going to outlast you." (G.E.R. at 301.) The voiceover came from Cape Fear, a film in which an ex-convict stalks and attempts to kill an attorney and his daughter.

Another individual specifically targeted on the website was the then-chairman of Global Crossing. Defendant posted the chairman's personal information, including his social security number and home address, on the website in February 2002. Defendant also posted a message telling him, "Keep your dogs @ bay . . . I'm now armed." (E.R. at 94.) Defendant was arrested and indicted on four counts of transmitting in interstate commerce threats to injure, in violation of 18 U.S.C. § 875(c), and five counts of transferring social security numbers with intent to aid and abet the false use of a social security number, in violation of 18 U.S.C. § 1028(a)(7). After a three-week trial, the jury found Defendant guilty on all but one count of the indictment.² The court sentenced Defendant to a forty-six-month term of imprisonment, at the top of the applicable Sentencing Guidelines range, and a three-year term of supervised release. Having served his forty-six-month sentence, Defendant is now on supervised release. He appeals numerous aspects of his prosecution, trial, and sentence.

DISCUSSION

A. Jurisdiction

Defendant argues that the district court lacked subject matter jurisdiction because there is no evidence that the charged offenses had the required nexus to interstate commerce. Because the jurisdictional question here is intertwined with the merits, we consider "whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found that the government proved a sufficient connection to interstate commerce beyond a reasonable doubt." United States v. Morgan, 238 F.3d 1180, 1185-86 (9th Cir.2001).

"The Internet is an international network of interconnected computers," Reno v. ACLU, 521 U.S. 844, 849, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997), similar to-and often using-our national network of telephone lines, see Nat'l Cable & Telecomm. Ass'n v. Brand X Internet Servs., 545 U.S. 967, 125 S.Ct. 2688, 162 L.Ed.2d 820 (2005). We have previously agreed that "[i]t can not be questioned that the nation's vast network of telephone lines constitutes interstate commerce," United States v. Holder, 302 F.Supp. 296, 298 (D.Mont.1969), aff'd and adopted, 427 F.2d 715 (9th Cir.1970) (per curiam), and, a fortiori, it seems clear that use of the internet is intimately related to interstate commerce. As we have noted, "[t]he Internet engenders a medium of communication that enables information to be quickly, conveniently, and inexpensively disseminated to hundreds of millions of individuals worldwide." United States v. Pirello, 255 F.3d 728, 729 (9th Cir.2001). It is "comparable . . . to both a vast library including millions of readily available and indexed publications and a sprawling mall offering goods and services," ACLU, 521 U.S. at 853, 117 S.Ct. 2329, and is "a valuable tool in today's commerce," Pirello, 255 F.3d at 730. We are therefore in agreement with the Eighth Circuit's conclusion that "[a]s both the means to engage in commerce and the method by which transactions occur, `the Internet is an instrumentality and channel of interstate commerce.'" United States v. Trotter, 478 F.3d 918, 921 (8th Cir.2007) (per curiam) (quoting United States v. MacEwan, 445 F.3d 237, 245 (3d Cir.2006)); see also United States v. Hornaday, 392 F.3d 1306, 1311 (11th Cir.2004) ("Congress clearly has the power to regulate the internet, as it does other instrumentalities and channels of interstate commerce . . . .").

Here, the government introduced evidence that Defendant was living in California at the time the website was first established and that in November 2001 he moved to New Hampshire, where he continued to post threats and social security numbers on the website. The government also presented evidence that, during the relevant time period, the website was uploaded to various servers located in Louisiana, North Carolina, and Virginia. Taken in the light most favorable to the...