807 F.3d 508 (2nd Cir. 2015), 14-2710-cr, United States v. Valle

Docket Nº:14-2710-cr 14-4396-cr
Citation:807 F.3d 508
Opinion Judge:BARRINGTON D. PARKER, Circuit Judge :
Party Name:UNITED STATES OF AMERICA, Appellant/Appellee, v. GILBERTO VALLE, Defendant-Appellee/Defendant-Appellant
Attorney:JUSTIN ANDERSON AND RANDALL W. JACKSON (Hadassa Waxman and Brooke Cucinella, of counsel), Assistant United States Attorneys for Preet Bharara, United States Attorney for the Southern District of New York, New York, New York, for Appellant/Appellee. EDWARD S. ZAS (Robert M. Baum and Julia L. Gatto...
Judge Panel:Before: STRAUB, PARKER, and CARNEY, Circuit Judges. Judge STRAUB dissents in a separate opinion. Straub, Circuit Judge, dissenting:
Case Date:December 03, 2015
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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807 F.3d 508 (2nd Cir. 2015)

UNITED STATES OF AMERICA, Appellant/Appellee,

v.

GILBERTO VALLE, Defendant-Appellee/Defendant-Appellant

Nos. 14-2710-cr 14-4396-cr

United States Court of Appeals, Second Circuit

December 3, 2015

Argued May 12, 2015.

As Amended December 4, 2015.

Page 509

[Copyrighted Material Omitted]

Page 510

Appeals from the United States District Court for the Southern District of New York. No. 12-cr-847 (PGG) -- Paul G. Gardephe, Judge.

Appeals from judgments of the United States District Court for the Southern District of New York (Paul G. Gardephe, Judge). The jury convicted Gilberto Valle of one count of conspiracy to kidnap and one count of improperly accessing a computer in violation of the Computer Fraud and Abuse Act (" CFAA" ). 18 U.S.C. § 1030. Valle moved for a judgment of acquittal, or, in the alternative, for a new trial, on both counts. The district court granted Valle's motion as to the conspiracy count, concluding that there was insufficient evidence to support the conviction, and denied the motion as to the CFAA count, concluding that Valle's conduct was covered by the statute.

The Government appeals from the district court's judgment of acquittal on the conspiracy count, and Valle separately appeals from the judgment of conviction on the CFAA count. Because we agree that there was insufficient evidence as to the existence of a genuine agreement to kidnap and of Valle's specific intent to commit a kidnapping, we AFFIRM the district court's judgment of acquittal on the conspiracy count. Because we find that the district court's construction of the CFAA violates the rule of lenity, we REVERSE the judgment of conviction on the CFAA count.

JUSTIN ANDERSON AND RANDALL W. JACKSON (Hadassa Waxman and Brooke Cucinella, of counsel), Assistant United States Attorneys for Preet Bharara, United States Attorney for the Southern District of New York, New York, New York, for Appellant/Appellee.

EDWARD S. ZAS (Robert M. Baum and Julia L. Gatto, of counsel), Federal Defenders of New York, Inc., New York, New York, for Defendant-Appellee/Defendant-Appellant Gilberto Valle.

Eugene Volokh (Hanni Fakhoury and Jamie Williams, Electronic Frontier Foundation, San Francisco, California, on the brief), Scott & Cyan Banister First Amendment Clinic, UCLA School of Law, Los Angeles, California, for Amici Curiae Electronic Frontier Foundation, Center for Democracy & Technology, Marion B. Brechner First Amendment Project, National Coalition Against Censorship, Pennsylvania Center for the First Amendment, and Law Professors.

Stephen L. Braga, Appellate Litigation Clinic, University of Virginia School of Law, Charlottesville, Virginia, for Amici Curiae Frederick S. Berlin, M.D., Ph.D., and Chris Kraft, Ph.D.

Hanni Fakhoury and Jamie Williams (Richard D. Willstatter, National Association of Criminal Defense Lawyers, White Plains, New York, and Harley Geiger, Center for Democracy & Technology, Washington, D.C., on the brief), Electronic Frontier Foundation, San Francisco, California, for Amici Curiae Electronic Frontier Foundation, Center for Democracy & Technology, National Association of Criminal Defense Lawyers, and Scholars.

Before: STRAUB, PARKER, and CARNEY, Circuit Judges. Judge STRAUB dissents in a separate opinion.

OPINION

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BARRINGTON D. PARKER, Circuit Judge :

This is a case about the line between fantasy and criminal intent. Although it is increasingly challenging to identify that line in the Internet age, it still exists and it must be rationally discernible in order to ensure that " a person's inclinations and fantasies are his own and beyond the reach of the government." Jacobson v. United States, 503 U.S. 540, 551-52, 112 S.Ct. 1535, 118 L.Ed.2d 174 (1992). We are loath to give the government the power to punish us for our thoughts and not our actions. Stanley v. Georgia, 394 U.S. 557, 565, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969). That includes the power to criminalize an individual's expression of sexual fantasies, no matter how perverse or disturbing. Fantasizing about committing a crime, even a crime of violence against a real person whom you know, is not a crime.

This does not mean that fantasies are harmless. To the contrary, fantasies of violence against women are both a symptom of and a contributor to a culture of exploitation, a massive social harm that demeans women. Yet we must not forget that in a free and functioning society, not every harm is meant to be addressed with the federal criminal law. Because " [t]he link between fantasy and intent is too tenuous for fantasy [alone] to be probative," United States v. Curtin, 489 F.3d 935, 961 (9th Cir. 2007) (en banc) (Kleinfeld, J., concurring), and because the remaining evidence is insufficient to prove the existence of an illegal agreement or Valle's specific intent to kidnap anyone, we affirm the district court's judgment of acquittal on the single count of conspiracy to kidnap.

In an issue of first impression that has sharply divided our sister circuits, we must also decide the meaning of " exceeds authorized access" in section 1030(a) of the Computer Fraud and Abuse Act (" CFAA" ), which imposes both criminal and civil liability. 18 U.S.C. § 1030. Specifically, we must determine whether an individual " exceeds authorized access" to a computer when, with an improper purpose, he accesses a computer to obtain or alter information that he is otherwise authorized to access, or if he " exceeds authorized access" only when he obtains or alters information that he does not have authorization to access for any purpose which is located on a computer that he is otherwise authorized to access. Because we conclude that the text, statutory history, and

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purpose of the CFAA permit both interpretations, we are required to apply the rule of lenity and adopt the latter construction. We therefore reverse the judgment of conviction as to the CFAA count.

BACKGROUND

Gilberto Valle is a native of Forest Hills, Queens. At the time of the events giving rise to his prosecution, he was an officer in the New York City Police Department living with his wife, Kathleen Mangan, and their infant daughter in Forest Hills. Valle has no prior criminal record and there is no evidence that he ever acted violently or threateningly towards anyone.

Valle was, however, an active member of an Internet sex fetish community called Dark Fetish Network (" DFN" ). He connected with individuals around the world whom he knew only by screen names such as " Moody Blues" or " Aly Kahn," or by email addresses. Valle communicated with these individuals by email or web chat, usually in the late evening and early morning hours after his work shift. Many of his Internet communications involved the transmission of photographs of women he knew -- including his wife, her colleagues from work, and some of his friends and acquaintances -- to other DFN users with whom he discussed committing horrific acts of sexual violence. These " chats" consisted of gruesome and graphic descriptions of kidnapping, torturing, cooking, raping, murdering, and cannibalizing various women.

Valle's online fantasy life was, to say the least, extremely active during this period. However, there is no evidence that he ever learned the real identities of the individuals with whom he chatted, nor is there any evidence that he ever made concrete plans to meet in person or speak by telephone or web camera with any of them.

In September 2012, Mangan became concerned about Valle's late-night Internet activities after she found several disturbing images of dead women on a laptop that the couple shared. She installed spyware on the computer, which recorded each website entered by the computer's users and captured screen shots every five minutes. With the use of the spyware, Mangan found more disturbing pictures and records of websites that Valle visited. These included detailed emails and chats where Valle discussed butchering her and raping and torturing other women whom they knew. After confronting Valle about his computer use and moving out of the home with their daughter, Mangan contacted federal authorities.

Valle was subsequently arrested and charged with a single conspiracy to kidnap several of the women who were the subject of his chats. Although he had chatted with numerous individuals he met on DFN, the Government identified three alleged co-conspirators: Michael VanHise, a man from New Jersey who was known to Valle as " mikevanhise81@aol.com" and " michael19902135@yahoo.com" ; an unidentified individual apparently located in Pakistan who used the screen name " Aly Khan" ; and Dale Bolinger, a man in England who was known to Valle only by his screen name, " Moody Blues." And although Valle had discussed up to one hundred different women in his chats, the indictment alleged five targets of the kidnapping conspiracy: Kathleen Mangan, his wife; Alisa Friscia, Mangan's former co-worker; Andria Noble; Kristen Ponticelli; and Kimberly Sauer, a former college classmate of Valle's who was living in the Baltimore area.

Valle was also charged with improperly accessing a government computer and obtaining information, in violation of section 1030(a)(2)(B) of the CFAA. As an NYPD

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officer, Valle had access to the Omnixx Force Mobile (" OFM" ), a computer program that allows officers to search various restricted databases, including the federal National Crime Information Center database, which contain sensitive information about individuals such as home addresses and dates of birth. It is undisputed that the NYPD's policy, known to Valle, was that these databases could only be accessed in the course of an officer's official duties and that accessing them for personal use violated Department rules. In May 2012, he accessed the OFM and searched for Maureen Hartigan, a woman he had known since high school and had discussed...

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