U.S. v. Rodriguez

• Decision Date: 27 December 2010
• Docket Number: No. 09-15265,09-15265
• Citation: 628 F.3d 1258
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Roberto RODRIGUEZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

628 F.3d 1258

UNITED STATES of America, Plaintiff-Appellee,

v.Roberto RODRIGUEZ, Defendant-Appellant.

No. 09-15265.

United States Court of Appeals, Eleventh Circuit.

Dec. 27, 2010.

Bernardo Lopez, Kathleen M. Williams, Fed. Pub. Defenders, Ft. Lauderdale, FL, for Defendant-Appellant.

Seth M. Schlessinger, Anne R. Schultz, Kathleen M. Salyer, Colan Jonathan, Lisa T. Rubio, Miami, FL, for Plaintiff-Appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before EDMONDSON, PRYOR and BARKSDALE,^* Circuit Judges.

PRYOR, Circuit Judge:

The main issue in this appeal is whether the prying by a former bureaucrat is criminal: that is, whether the defendant violated the Computer Fraud and Abuse Act, which prohibits "intentionally access[ing] a computer without authorization or exceed[ing] authorized access, and thereby obtain [ing] ... information from any department or agency of the United States." 18 U.S.C. § 1030(a)(2)(B). Roberto Rodriguez, a former employee of the Social Security Administration, appeals his conviction for violating the Act on the grounds that he did not exceed his authorized access to his former employer's databases and that he did not use the information to further another crime or to gain financially. The Administration prohibits accessing information on its databases for nonbusiness reasons, and Rodriguez at trial admitted that he accessed information for nonbusiness reasons when he obtained personal identifying information, such as birth dates and home addresses, of 17 persons he knew or their relatives. Rodriguez also appeals his sentence of 12 months of imprisonment on the ground that it is unreasonable. Because the record establishes that Rodriguez exceeded his authorized access and the Act does not require proof that Rodriguez used the information to further another crime or to gain financially, we affirm his conviction. We also conclude that Rodriguez's sentence is reasonable.

I. BACKGROUND

From 1995 to 2009, Roberto Rodriguez worked as a TeleService representative for the Social Security Administration. Rodriguez's duties included answering questions of the general public about social security benefits over the telephone. As a part of his duties, Rodriguez had access to Administration databases that contained sensitive personal information, including any person's social security number, address, date of birth, father's name, mother's maiden name, amount and type of social security benefit received, and annual income.

The Administration established a policy that prohibits an employee from obtaining information from its databases without a business reason. The Administration informed its TeleService employees about its policy through mandatory training sessions, notices posted in the office, and a banner that appeared on every computer screen daily. The Administration also required TeleService employees annually to sign acknowledgment forms after receiving the policies in writing. The Administration warned employees that they faced criminal penalties if they violated policies on unauthorized use of databases. From 2006 to 2008, Rodriguez refused to sign the acknowledgment forms. He asked a supervisor rhetorically, "Why give the government rope to hang me?" To monitor access and prevent unauthorized use, the Administration issued unique personal identification numbers and passwords to each TeleService employee and reviewed usage of the databases.

In August 2008, the Administration flagged Rodriguez's personal identification number for suspicious activity. Administration records established that Rodriguez had accessed the personal records of 17 different individuals for nonbusiness reasons. The Administration informed Rodriguez that it was conducting a criminal investigation into his use of the databases, but Rodriguez continued his unauthorized use. None of the 17 victims knew that Rodriguez had obtained their personal information without authorization until investigators informed them of his actions.

Most of Rodriguez's victims testified at trial. Cecilia Collins was married to Rodriguez from 1985 to 1990. In 2008 and 2009, Rodriguez used the Administration databases to determine how much Collinswas earning. Rodriguez also accessed the personal information of Collins's sister for nonbusiness reasons.

Sally Culver lived with Rodriguez from 2001 to 2005. She testified that she had not spoken with Rodriguez since 2005. Culver testified that on one occasion, when she complained to Rodriguez about pay disparities at her place of work, Rodriguez stated that, if Culver gave him the name, birth date, and approximate age of a coworker, then he could tell her how much that coworker earned. Culver declined Rodriguez's offer and did not provide him the coworker's name. Rodriguez also accessed the personal information of Culver's father for nonbusiness reasons. Rodriguez also told Culver that, if he was ever asked about his unauthorized searches, then he would make up an explanation. In 2008 and 2009, long after Culver and Rodriguez ended their relationship, Rodriguez accessed Culver's personal information 62 times.

Theresa Ivey had worked with Rodriguez at a post office, but Ivey had not spoken to Rodriguez since 1999. Ivey's daughter testified that she met Rodriguez in 1993 when she was a child. In 2008, Rodriguez accessed Ivey's personal information twice and her daughter's personal information 22 times.

Diamselis Rodriguez worked at a restaurant that Rodriguez frequently visited. Rodriguez gave Diamselis a pair of earrings on her birthday. In 2008, Rodriguez accessed Diamselis's personal information 20 times.

Dana Fennell, a professor of sociology from Mississippi, testified that she met Rodriguez at a Unitarian Universalist church study group when she was visiting her parents in Florida. Fennell interviewed Rodriguez for a study on the health effects of religion, but she did not consider him to be a friend. After Fennell returned to her home in Mississippi, she received flowers from Rodriguez on Valentine's Day even though she had not given Rodriguez her address. Rodriguez later arrived at Fennell's doorstep unannounced, and Fennell was surprised and frightened by his presence. On another occasion, Rodriguez mentioned Fennell's father's birthday to Fennell even though she had never mentioned her father to Rodriguez. Rodriguez also told Fennell that he had the ability to listen to the telephone conversations of others. Rodriguez later called Fennell to wish her a happy "half-birthday" although she did not recall telling Rodriguez her date of birth. Rodriguez accessed Fennell's personal information on Administration databases 65 times, and he accessed the personal information of Fennell's mother and father multiple times.

Jessica Fox also met Rodriguez at the church study group. Fox testified that she received a letter from Rodriguez at her home address and was shocked because she had not given Rodriguez her address, she ordinarily receives all her mail at a post office box, and her middle initial was on the envelope although she had not used it since grade school. Rodriguez accessed Fox's personal information 45 times.

Rodriguez accessed the personal information of several other women he met at the church study group. Annemarie Jiovenetta considered Rodriguez to be an acquaintance, and Rodriguez accessed Jiovenetta's personal information 23 times. Joan Ginnell considered Rodriguez to be her friend, and she testified that he seemed romantically interested in her. Rodriguez accessed Ginnell's personal information 30 times. Catherine Schuman avoided Rodriguez after it became apparent that he wanted a romantic relationship with her, and Rodriguez attempted to access her information 29 times. Rodriguezaccessed Marianne Silverstein's personal information seven times and Jane Dekovitch's personal information ten times. Nitza Dominguez did not testify at trial, but the government presented evidence that Rodriguez accessed Dominguez's personal information 34 times for nonbusiness reasons.

On April 2, 2009, a grand jury indicted Rodriguez with 17 misdemeanor counts of violating the Computer Fraud and Abuse Act. The indictment charged Rodriguez with "intentionally access[ing] a computer without authorization or exceed[ing] authorized access, and thereby obtain[ing] ... information from any department or agency of the United States." 18 U.S.C. § 1030(a)(2)(B). Trial commenced on July 27, 2009.

During his opening statement, Rodriguez's attorney conceded that Rodriguez had "access[ed] things that were unauthorized." Rodriguez also testified in his defense and admitted accessing the personal information of the victims. Rodriguez testified that he had accessed the personal information as part of a whistle-blowing operation to test whether his unauthorized use of the databases would trigger the attention of the Administration because he was conducting an investigation into improper denials of disability benefits. Rodriguez admitted that he did not access the victims' records as a part of his duties as a TeleService representative. On July 29, 2009, the jury rejected Rodriguez's argument about his conduct and returned a guilty verdict on all 17 counts.

The presentence investigation report provided a statutory maximum sentence of one year of imprisonment, 18 U.S.C. § 1030(c)(2)(A), and a sentencing guidelines range between zero and six months of imprisonment, U.S. Sentencing Guidelines Manual § 2B1.1(a)(2)(2008). Rodriguez did not object to the sentencing report. The government sought an upward variance from the guidelines range to 36 months of imprisonment. The government asked the district court to impose the statutory maximum of 12 months on some of the counts and order that the sentences run consecutively. The government argued that the guidelines range did not sufficiently account for the number of victims or the harm they suffered. The government also argued that an upward...