Rossini v. United States
| Decision Date | 14 October 2014 |
| Docket Number | Magistrate Case No. 08-692 (JMF) |
| Parties | MARK THOMAS ROSSINI, Petitioner, v. UNITED STATES OF AMERICA, Respondent. |
| Court | U.S. District Court — District of Columbia |
Currently pending and ready for resolution is the petitioner's Petition in Support of a Writ of Error Coram Nobis [#17]. For the reasons stated below, the petition will be denied.
On December 1, 2008, the government filed an information, claiming that on five occasions between January 19, 2007 and July 5, 2007, the petitioner "intentionally and knowingly exceeded his authorized access to a protected computer belonging to the Federal Bureau of Investigation, an agency of the United States headquartered in the District of Columbia, and by such act obtained information from the Federal Bureau of Investigation that he was not permitted to receive," in violation of Title 18 of the United States Code, Section 1030(a)(2)(B), the Computer Fraud and Abuse Act ("CFAA"). See Information [#1]. On December 8, 2008, the petitioner entered a guilty plea as to all charges in the information. See Plea Agreement (November 24, 2008 Letter from Tejpal S. Chawla, Assistant United States Attorney, to Adam Hoffinger, petitioner's counsel) [#3].
Pursuant to the plea agreement, the petitioner conceded that the following facts were true:
Between January 3, 2007 and July 30, 2007, the defendant made over 40 searches of the ACS for FBI information that were for purely personal purposes, and not connected to FBI business. Each of these searches exceeded the defendant's authorized use of the ACS system, and were [sic] not part of any of his assigned work. As part of these searches, the defendant obtained information to which he was not entitled.
Statement of the Offense [#4] at 3.
On May 14, 2009, the petitioner was sentenced to 1) twelve months of probation for each of the five counts, to run concurrently; 2) a special assessment fee of $125; 3) a fine of $5,000 to be paid at a monthly rate of $250; and 4) 250 hours of community service. Judgment in a Criminal Case [#11] at 1, 3. Since judgment was imposed, the petitioner completed payment on the Court-imposed fines,1 his supervised release was terminated,2 and he completed his community service.3
"The writ of coram nobis is an ancient common-law remedy designed 'to correct errors of fact.'" U.S. v. Denedo, 556 U.S. 904, 910 (2009) (quoting U.S. v. Morgan, 346 U.S. 502, 507 (1954)). Originally, the writ was intended as a means of correcting "technical errors." Denedo, 556 U.S. at 911. Today it is used to correct "fundamental errors," when no other remedy is available. Id. Thus, "coram nobis . . . may collaterallyattack only constitutional or jurisdictional errors or serious defects in the trial either not correctible on direct appeal or where exceptional circumstances justify the failure to appeal on those grounds." U.S. v. McCord, 509 F.2d 334, 341 (D.C. Cir. 1974), cert. denied, 421 U.S. 930 (1975).
Writing in 2009, Judge Hogan indicated that "the D.C. Circuit's precedent in this area is thin." U.S. v. Williams, 630 F. Supp. 2d 28, 32 (D.D.C. 2009). He pointed to the leading case, United States v. Hansen, 906 F. Supp. 688 (D.D.C. 1990), in which Judge Joyce Hens Green of this Court, in the absence of D.C. Circuit authority for analyzing a petition for a writ of error coram nobis, looked to the practice of the Third, Fourth, Ninth and Tenth Circuits. Id. at 692. Under their precedents, relief by writ of coram nobis was only available when: "(1) a more usual remedy is not available; (2) valid reasons exist for not attacking the conviction earlier; (3) adverse consequences exist from the conviction sufficient to satisfy the case or controversy requirement of Article III; and (4) the error is of the most fundamental character." Id. at 692-93. Accord U.S. v. Akinsade, 686 F.3d 248, 252 (4th Cir. 2012); Klein v. U.S., 880 F.2d 250, 254 (10th Cir. 1989); Hirabayashi v. U.S., 828 F.2d 591, 604 (9th Cir. 1987).
I will follow Judge Hogan's and Judge Green's lead and apply those factors.
Both the petitioner and the government agree that because the petitioner waived his right to an appeal when he accepted the plea agreement, and because he has now completed the various elements of his sentence, the more usual remedies of either a direct appeal or a motion for habeas corpus relief pursuant to 28 U.S.C. § 2255, respectively,are not available. See [#17] at 13; United States['] Opposition to Defendant's Petition for Writ of Error Coram Nobis [#22] at 5. Thus, the petitioner has satisfied the first of the coram nobis requirements.
The petitioner argues that there was a valid reason why he did not attack his conviction earlier—because there was a change in the law governing his conviction. [#17] at 13-14. Specifically, the petitioner claims that it was not until this Court issued its decision in Lewis-Burke Assocs., LLC v. Widder, 725 F. Supp. 2d 187 (D.D.C. 2010) and the Ninth Circuit issued its decision in United States v. Nosal, 642 F.3d 781 (9th Cir. 2011), that he became aware that he had grounds to file a petition for a writ of coram nobis. [#17] at 17-18.
The government counters that the petitioner's argument is flawed because both the Widder and Nosal decisions adopted the Ninth Circuit's reasoning in LVRC Holdings LLC v. Brekka, 581 F.3d 1127 (9th Cir. 2009), a decision issued in 2009, well before the petitioner's current filing, which occurred five years later on June 6, 2014. [#22] at 5-7. The government also argues that the petitioner could have based his argument on the reasoning in Shamrock Foods Co. v. Gast, 535 F. Supp. 2d 962 (D. Ariz. 2008), a 2008 decision in which the court ruled on the application of the CFAA to conduct similar to that at issue in this case. Id. at 6-7. The government's arguments are persuasive because there was authority in existence well before the petitioner filed his current petition, authority which could have supported the argument he makes now.
First, even if this Court's decision in Widder had been deemed to apply retroactively,4 which it was not, the petitioner still lacked a valid reason for not attacking his conviction earlier because the argument he now advances has in fact previously been successfully asserted, albeit not in this circuit. On February 20, 2008, the District Court for the District of Arizona issued its decision in Shamrock. In that case, a civil action,5 the court unequivocally held that "[t]he general purpose of the CFAA 'was to create a cause of action against computer hackers (e.g., electronic trespassers).'" Id. To that end, the court concluded the following with respect to sections 1030(a)(2)6 and section (4)7 of the CFAA:
Given the plain language, legislative history, and principles of statutory construction, the restrictive view of authorization is adopted. [A] violation for accessing without authorization occurs only where initial access is not permitted. And a violation for exceeding authorized access occurs where initial access is permitted but the access of certain information is not permitted.
Id. at 967 (internal citations and quotations omitted).
Less than two years later, on September 15, 2009, the Ninth Circuit issued its decision in Brekka. In that case, a company sued a former employee for violating sections 1030(a)(2) and (4) of the CFAA by accessing its computer without authorization and in excess of authorizations. Brekka, 581 F.3d at 1132. First, the court noted that "anemployer gives an employee 'authorization' to access a company computer when the employer gives the employee permission to use it." Id. at 1133. Thus, the court concluded that because the company gave the employee permission to access its computer, he did not act "without authorization" when he acted for purposes contrary to the company's interest, both while employed by the company and then after he left the company. Id. at 1135. For the same reason, the court also concluded that the employee did not "exceed authorization." Id. In a footnote, the court further noted that "nothing in the CFAA suggests that a defendant's authorization to obtain information stored in a company computer is 'exceeded' [even] if the defendant breaches a state law duty of loyalty to an employer." Id. at 1135 n.7. The court clearly stated therefore that an individual violates the above two sections of the CFAA by accessing data for which he lacks authorization, not for using data that he is authorized to access for purposes contrary to the company's interest.
Finally, on July 28, 2010, this Court issued its decision in Widder. In that case, the issue before this Court was whether an employee violated the CFAA by taking confidential and proprietary computer data with him when he left the company where he used to work, in violation of section 1030(a)(2). As stated by the court in Shamrock, this Court also noted that the primary purpose of the CFAA was to deter computer hacking. Id. at 194. Then, following the Brekka line of cases, this Court noted that when an employer gives an employee permission to use its computer system, it is giving that employee authorization to access the data contained therein. Id. at 192. Ultimately, this Court concluded that "[w]hether [an employee] had permission to copy documents ontohis thumb drive or to subsequently use the data from a non-[work] computer, after he had left its employ, is not a question that relates to his liability under the CFAA." Id. at 194.
As noted above, in this case, the information against the petitioner was filed on December 1, 2008, almost ten months after the February 20, 2008 Shamrock decision was issued. Understandably, even if the petitioner had been aware of the Shamrock opinion, he may not have felt compelled to base his motion for a writ of coram nobis upon the...
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