U.S. v. Barrington

• Decision Date: 11 August 2011
• Docket Number: No. 09–15295.,09–15295.
• Citation: 648 F.3d 1178,270 Ed. Law Rep. 524,23 Fla. L. Weekly Fed. C 201
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.Marcus BARRINGTON, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

648 F.3d 1178

270 Ed. Law Rep. 524

23 Fla. L. Weekly Fed. C 201

UNITED STATES of America, Plaintiff–Appellee,

v.Marcus BARRINGTON, Defendant–Appellant.

No. 09–15295.

United States Court of Appeals, Eleventh Circuit.

Aug. 11, 2011.

Richard C. Klugh, Jr, Miami, FL, for Appellant.Terry Flynn, E. Bryan Wilson, U.S. Atty., Tallahassee, FL, for Appellee.Appeal from the United States District Court for the Northern District of Florida.Before HULL and MARCUS, Circuit Judges, and WHITTEMORE,^* District Judge.WHITTEMORE, District Judge:

Marcus Barrington appeals his convictions for conspiracy to commit wire fraud using a protected computer, accessing a protected computer without authorization with intent to defraud, and three counts of aggravated identity theft. Barrington also appeals his sentence, contending that his 84 month prison sentence is procedurally and substantively unreasonable.¹

Barrington challenges the admission of Rule 404(b) evidence at trial, the district court's restriction on cross-examination of a cooperating co-defendant, and the sufficiency of the evidence supporting his aggravated identity theft convictions. Additionally, he contends the conspiracy count in the indictment was duplicative and the jury instructions on conspiracy and aggravated identity theft were erroneous.

As for his sentence, he contends that the district court erred in calculating his base offense level, infringed on his right against self-incrimination at sentencing, erred in calculating loss, and erred in applying Guidelines enhancements for use of sophisticated means, leadership role, device-making equipment, and production of unauthorized access devices.

For the reasons discussed below, we affirm Barrington's convictions and sentence.

I

Barrington and his co-defendants, Christopher Jacquette and Lawrence Secrease, all undergraduate students at Florida A&M University (“FAMU”), were indicted and charged in a five count indictment with conspiracy to commit wire fraud using a protected computer in violation of 18 U.S.C. §§ 371 and 1349; fraud using a protected computer in violation of 18 U.S.C. §§ 1030(a)(4) and (c)(3)(A) and 2; and three counts of aggravated identity theft in violation of 18 U.S.C. §§ 1028A and 2. Jacquette and Secrease pleaded guilty pursuant to plea agreements, received substantial assistance departures pursuant to U.S.S.G. § 5K1.1, and were each sentenced to 22 months in prison and 3 year terms of supervised release.

The offense conduct

Barrington's convictions arose from a scheme he and his co-conspirators concocted to access FAMU's internet-based grading system. The scheme was developed after Secrease and Barrington, roommates at the time, began discussing how to change grades for friends who were applying to graduate school. During the summer of 2007, Barrington changed grades for himself, Jacquette and several fraternity brothers using forged University grade change slips. When that method became ineffective in part because they ran out of blank grade change slips, they developed a plan to access the system using keylogger software.²

Secrease was with Barrington in the Registrar's Office in August 2007 when they attempted to install the first keylogger. They eventually installed keylogger software on various University computers, including an office computer used by a Registrar employee and four terminals placed in the University's grand ballroom during registration. The keyloggers covertly recorded the keystrokes made by Registrar employees as they signed onto their computers, capturing their usernames and passwords. That data was automatically transmitted to various email accounts, including Barrington's personal email address.

Using the surreptitiously obtained usernames and passwords, the conspirators accessed FAMU's grading system, changed grades, added credits for courses which had been failed or not taken, and changed the residencies of several non-resident students to qualify them for in-state tuition.³ The changes were made via the Internet from the conspirators' home computers, campus computers at FAMU and Florida State University, and from several wireless laptops.

A joint investigation by FAMU's Police Department and the FBI determined that FAMU's protected grading system had been accessed by unauthorized means. The investigation was triggered after a FAMU professor discovered that one of his students, Barrington's sister, had received two unauthorized grade changes. The University subsequently discovered that between August and October 2007, approximately 30 to 35 unauthorized changes were made to Barrington's grades, all but one from a lower grade to an A. Barrington's sister received 5 grade changes from F or C to A. Jacquette received approximately 43 grade changes and Secrease received approximately 36. Ultimately, the investigation revealed that in excess of 650 unauthorized grade changes had been made, involving at least 90 students. As a result of the grade changes and residency changes, the University incurred a loss of $137,000 in tuition it otherwise would have received.

In September 2007, Barrington and his sister were questioned by FAMU police. Barrington denied any knowledge of the grade changes. Within hours, and after learning that the University had reversed the grade changes, Barrington organized a meeting at his house with Jacquette, Secrease, and some of the students whose grades had been changed. Barrington instructed them to deny all knowledge of the scheme if questioned by police. They agreed to re-install keyloggers on the Registrar's computers so that the grades could be changed a second time. Barrington drew a map and directed students where to go to carry out the plan. Some of them went to the Registrar's Office where they distracted employees so that others could install keyloggers using flash drive devices. Afterwards, the group celebrated at a local Chili's restaurant.

At some point, Secrease was terminated from his job at the University, losing access to the University's computer lab. Barrington provided funds to Jacquette for the purchase of a laptop computer. Notwithstanding that law enforcement had discovered the scheme and the University was reversing the grade changes, the conspirators continued to make grade changes using the laptop.

In an effort to conceal their involvement, the conspirators made random grade changes for students who had not been involved originally. Jacquette explained that this was done to “throw things off by broadening the list of names” of students whose grades had been changed. Barrington told Jacquette that random grade changes would indicate that either there was a “flaw or hiccup” in the computer system, or that another group of students was responsible. According to Jacquette, Barrington's “logic was, if grade changes continue[d], there [was] no way the police would think that [he did it because] he had to be an absolute idiot to continue doing it after they've already contacted him. But if it continued, they would think that it must be someone else.”

In November 2007, search warrants were executed at the conspirators' residences, resulting in the seizure of documents containing the usernames and passwords of seven FAMU Registrar employees, handwritten notes outlining classes and grades and directing certain grade changes, FAMU student transcripts, restricted student enrollment documents, and student class information and ID numbers. In Barrington's room, the officers found an index card with usernames and passwords of Registrar employees written on it. They did not find the laptop that had been used to make the grade and residency changes. It was later determined that Barrington had taken it for safekeeping to the home of another student, who ultimately turned it over to the police. An analysis of the laptop confirmed that it had been used to effect grade and residency changes.

Jacquette consented to a search of his cell phone. On his phone were the usernames and passwords of several Registrar employees. Jacquette testified that this information came from an index card written by Barrington.

Barrington testified at trial. He essentially denied any involvement in the scheme, claiming that he was merely present during the installation of the keyloggers, the grade changing and the concealment activities. In rebuttal, an FBI agent who took Barrington's Rule 11 proffer testified that Barrington admitted to having participated in the scheme to obtain the usernames and passwords, acting as a lookout while Secrease and Jacquette installed the keyloggers on Registrar computers, having used the passwords, and having asking to have his sister's and another female student's grades changed. The Government also called Sheerie Edwards, a friend of Barrington's. She testified that after discussing with Barrington that she had not done well in certain classes, he told her that her grades could be “fixed.” She gave him a list of the classes. Later, Barrington called her and told her to look at her grades online. When she did, she saw that her grades had been changed.

Barrington was convicted on all counts.

II

Barrington first contends that the district court erred in admitting into evidence testimony from Jacquette describing how Barrington had previously changed grades using forged instructor signatures on University grade change slips. Barrington contends that this testimony was inadmissible under Fed.R.Evid. 404(b). We disagree. Such rulings are reviewed for abuse of discretion. See United States v. Jernigan, 341 F.3d 1273, 1280 (11th Cir.2003); United States v. West, 898 F.2d 1493, 1499 (11th Cir.1990).

Prior to trial, the Government filed a notice of its intent to introduce testimony that Barrington had fraudulently changed student grades by “forging legitimate student grade change forms and submitting them for processing.” Barrington objected and before Jacquette testified, the district court considered the...