U.S. v. Cioni, 09–4321.

• Citation: 649 F.3d 276
• Decision Date: 20 April 2011
• Docket Number: No. 09–4321.,09–4321.
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.Elaine Robertson CIONI, Defendant–Appellant.Electronic Frontier Foundation; National Association of Criminal Defense Lawyers, Amici Supporting Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

649 F.3d 276

UNITED STATES of America, Plaintiff–Appellee,

v.Elaine Robertson CIONI, Defendant–Appellant.Electronic Frontier Foundation; National Association of Criminal Defense Lawyers, Amici Supporting Appellant.

No. 09–4321.

United States Court of Appeals, Fourth Circuit.

Argued: Jan. 28, 2011.Decided: April 20, 2011.

ARGUED: Jenifer Wicks, Washington, D.C., for Appellant. Jay V. Prabhu, Office of the United States Attorney, Alexandria, Virginia, for Appellee. ON BRIEF: Josh Goldfoot, Senior Counsel, United States Department of Justice, Washington, D.C.; Neil H. MacBride, United States Attorney, Alexandria, Virginia, for Appellee. Thomas K. Maher, North Carolina Office of Indigent Services, Durham, North Carolina; Lee Tien, Jennifer Stisa Granick, Marcia Hofmann, Electronic Frontier Foundation, San Francisco, California, for Amici Supporting Appellant.Before NIEMEYER, KING, and GREGORY, Circuit Judges.Affirmed in part, vacated in part, and remanded for further proceedings by published opinion. Judge NIEMEYER wrote the opinion, in which Judge KING and Judge GREGORY joined.

OPINION

NIEMEYER, Circuit Judge:

Elaine Cioni was convicted of five electronic communications offenses. In Count 1, she was convicted of conspiracy to commit the offenses charged in the remaining four counts and other related electronic communications offenses, in violation of 18 U.S.C. § 371. In Counts 2 and 4, she was convicted of obtaining information through unauthorized access to computers, in violation of 18 U.S.C. § 1030(a)(2)(C). Her convictions on Counts 2 and 4 also included charges of committing the offenses “in furtherance of” a violation of 18 U.S.C. § 2701(a) (obtaining access to communications in electronic storage), thus elevating her convictions on those counts from misdemeanors to felonies. In Count 5, she was convicted of making harassing telephone calls, in violation of 47 U.S.C. § 223(a)(1)(C). And in Count 6 she was convicted of obtaining access to communications in electronic storage, in violation of 18 U.S.C. § 2701. Again in this count, her conviction included charges of committing the offense “in furtherance of” a violation of 47 U.S.C. § 223(a)(1)(C) (making harassing telephone calls), thus elevating her conviction from a misdemeanor to a felony. The government dismissed Count 3 before trial.

The district court sentenced Cioni to a 15–month term of imprisonment, followed by 2 years of supervised release.

Cioni challenges her convictions and sentence on numerous grounds. As we more fully explain in our opinion, with respect to Counts 2 and 4, we agree with Cioni that the offenses were improperly elevated from misdemeanors to felonies, and we vacate the convictions on those two counts and remand for entry of misdemeanor convictions. In view of that conclusion, we also vacate Cioni's sentence and remand for resentencing. With respect to her other challenges, we affirm the judgment of the district court.

I

Beginning in the summer of 2005, Cioni began having an affair with Bruce Enger, her former supervisor at Long & Foster Realty in Northern Virginia. Both Cioni and Enger were married at the time. During the affair, which continued for approximately two years, Cioni suspected that she was not the only one with whom Enger was having an affair. Nonetheless, after Cioni relocated to the Chattanooga, Tennessee area to take a new job and after the affair ended, Cioni and Enger remained on speaking terms, and occasionally communicated by telephone or e-mail.

Beginning in March 2007, however, Cioni began an anonymous electronic campaign of harassment against Enger, that lasted more than a year and that was uncovered only after an extensive investigation.

Initially, Enger started receiving harassing telephone calls from an unknown source. The calls were made to several of Enger's telephone numbers, including those of his office, mobile telephone, his wife Maureen's telephone, and the telephones of several of his business associates. In each case, the person making the call spoke in a distorted male voice and revealed private information regarding Enger's work and personal life. For example, on August 24, 2007, the unidentified person called Enger on his Blackberry and said, “I know where you are ... [be]cause I'm there too. I followed you.” At other times, the caller recited the contents of Enger's password protected e-mail accounts and told Enger that “we're watching every move you make” and that copies of damaging e-mails would be sent to Enger's family while he was travelling. Occasionally the calls also made threats toward Enger, telling him, for example, that he “need[ed] to get on out of Dodge.” Caller identification indicated that the calls originated from telephone numbers familiar to Enger, such as his home telephone number or his daughter's cell phone number, but in fact they originated from other telephones. Although Enger sought to avoid the calls by changing his telephone numbers several times, these efforts were unsuccessful, and the harassing calls continued through May 2008.

At Enger's prompting, the harassment campaign was investigated by Long & Foster, which sought to identify the caller's identity. Long & Foster's investigation focused on Craig Scott, a former employee who Long & Foster believed had a motive for retaliating against company officials, as well as the technical knowledge necessary to carry out the campaign. Between March and September 2007, Long & Foster gathered evidence relating to the calls, to prior computer network intrusions, and to Scott's whereabouts. Long & Foster then provided that information to local authorities, who charged Scott with making the harassing telephone calls and improperly accessing Enger's e-mail. The charges, however, were later dismissed because of a lack of supporting evidence. The investigation nonetheless had a catastrophic impact on Scott, who lost both his job and his marriage in the process.

Frustrated with its lack of progress in the investigation, Long & Foster turned to the FBI, which conducted an extensive investigation and ultimately determined that the harassing calls were made not by Scott but by Cioni and her long-time friend, Sharon Thorn. The FBI learned that Cioni and Thorn had used a service known as “Spoofcard,” which enabled them to mask their telephone numbers and voices, and make downloadable audio recordings of their calls. Spoofcard's billing records, which the FBI subpoenaed, indicated that over 300 calls were made from Cioni's telephones using some or all of Spoofcard's features, and more than 220 of the calls were made to Enger's various telephone numbers. Inspired by actress Paris Hilton's reported use of similar technology to access rival Lindsay Lohan's voicemail, Cioni also used Spoofcard to access Enger's voicemail, during which time she listened to new messages, played old messages, deleted messages, and left her own disguised messages. Payment for many of the Spoofcard calls was made electronically from computers at Cioni's home and workplace, using a credit card belonging to Cioni.

The FBI's investigation also revealed that Cioni had accessed or attempted to access numerous e-mail accounts belonging to Bruce Enger, his wife, Maureen Enger, their children, and several of Enger's business associates, including Patricia Freeman, Enger's former assistant. These intrusions were documented in log files kept by AOL, Google, and other Internet service providers, which indicated that computers with Internet Protocol addresses linked to Cioni's home and office had accessed or had attempted to access each of the accounts noted. All of the accounts were password protected, and none of the account holders had shared their passwords with Cioni. The FBI discovered that Cioni had gained access to many of these e-mail accounts by using an online service known as “yourhackerz.com,” which, for a fee, acquired third-parties' e-mail passwords surreptitiously. Some of the payments to yourhackerz.com were made by Cioni using Thorn's credit card, with Thorn's permission, so as to “hide the paper trail.”

Finally, on May 22, 2008, FBI agents obtained a warrant to search both Cioni's office and residence. These searches uncovered additional evidence linking Cioni to the e-mail intrusions and harassing telephone calls. In particular, the agents discovered on Cioni's computers images of e-mail inboxes belonging to two of Enger's acquaintances, fragments of e-mail communications between Enger family members, and a confirmation e-mail from yourhackerz.com for the purchase of Enger's e-mail password.

Cioni was indicted for her electronic communications crimes, and, following a four-day trial, was convicted on all counts. She testified at trial and corroborated much of the evidence. Specifically, she acknowledged that she had called Enger and his wife via the Spoofcard service on numerous occasions; that she had listened to Enger's voicemail messages without his permission; that she had accessed without authorization e-mail accounts held by Enger, his wife, Patricia Freeman, and several other individuals; and that she had sent printouts of some of the purloined e-mails to Enger's residence via the U.S. Postal Service. But Cioni denied having viewed any unread e-mail messages or having had any intention to intimidate Enger through these communications.

At the sentencing hearing, during which Cioni represented herself following a disagreement with her attorney, the district court reviewed the presentence report and ruled on objections raised by both sides. The court determined that Cioni's offense level was 14 which, with her criminal history category I, yielded a recommended Sentencing Guidelines range of 15 to 21 months' imprisonment. After hearing extensively from the parties, the court sentenced Cioni to a concurrent 15–month sentence on each of the 5 counts of conviction, followed by 2 years of supervised release.

This appeal...