U.S. v. Lee
| Decision Date | 12 July 2002 |
| Docket Number | No. 01-10179.,01-10179. |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Kent Aoki LEE, aka Kent Aoki aka Keun Do Kent Lee, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Shanlyn A.S. Park, Assistant Federal Public Defender, Honolulu, HI, for the appellant.
Lawrence L. Tong, Assistant U.S. Attorney, Honolulu, HI, for the appellee.
Appeal from the United States District Court for the District of Hawaii; Susan Oki Mollway, District Judge, Presiding. D.C. No. CR-99-00560-SOM.
Before: BRUNETTI, KLEINFELD and THOMAS, Circuit Judges.
This case involves application of the special skills sentencing adjustment1 to the use of a computer.
The Honolulu Marathon Association has a web site at "www.honolulu-marathon.org." During the relevant time, U.S. residents could use the site to register for the Honolulu Marathon and pay the registration fee online. Although many Japanese enter the race, the site did not permit online registration from Japan, but told Japanese entrants to register through an office in Japan.
The appellant, Kent Aoki Lee, lived in Honolulu, where he owned a video rental store. Lee came up with a scheme to sell marathon services to the marathon's Japanese market. Lee owned a computer server, which he kept on the premises of an internet service provider with whom he had a dial-up internet account. He registered the domain name "www.honolulumarathon.com" and created a site almost identical to the official Honolulu Marathon site by copying its files onto his server. While the official site did not permit online registration from Japan, Lee's site contained an online registration form written in Japanese on which runners could enter personal information and credit card information. While the official registration fee was $65, Lee's site charged $165. The extra $100 over the registration fee covered a package including transportation to the race site, a meal, and a tour. Of course, none of this was legitimate, since Lee's web site and registration package were not authorized by the Honolulu Marathon Association. Seventeen people tried to register through Lee's site.
Lee's scheme was uncovered and he pleaded guilty to one count of wire fraud2 and one unrelated count of selling Viagra without a prescription.3 The main issue at sentencing was whether the district court could impose the special skills adjustment4 based on Lee's use of computer skills in creating his phony site.
Lee created his phony site by copying the legitimate site's files onto his computer server. Web sites consist of multiple web pages, which consist of individual computer files written in "hypertext markup language," or "HTML." The HTML files constituting a web site are located through a directory on a computer server. A computer directory is like a card in an old-fashioned library catalog, that tells where to find a book on a shelf. However a site's HTML files are referenced, they are linked together in the directory to create the whole web site. These links reflect the specific location of individual files within the server's structure of directories and subdirectories. The graphics on a web page are actually individual computer files to which that page's HTML file links, causing them to appear when the web page is displayed. An individual graphic file may be in the same directory as the HTML file to which it's linked, or in a subdirectory, or on another computer server altogether, and the link reflects that specific location. To copy a web site onto another computer server, it's not enough to copy the HTML file and the graphics for each web page. The copier must also recreate the directory structure of the original site or edit the links in the HTML files to reflect the different directory structure.
The creator of the genuine Honolulu Marathon site testified that Lee could have copied most of the site without knowing much about its directory structure, by using off-the-shelf software such as Microsoft's FrontPage 98, aided by a general circulation book such as Front Page 98 for Dummies.5 She also testified that a program like FrontPage would have written a line of code into the fake site's HTML files, indicating that it had been used. There weren't any such lines of code in the HTML files on Lee's site, suggesting that he didn't use this easy approach to copying the site. The creator of the authorized web site also testified that Lee could have pirated the site, much more slowly and laboriously, by using a text editor to copy it page by page (there were 130 individual web pages) and recreating the original site's directory structure so that each web page would properly display graphics and link to the other pages on the site. The legitimate site had two features, databases containing entrants' registration information and a list of past race results, that Lee could not copy onto his phony site, so he linked to those features on the genuine site so that they would appear to be part of his fake web site.
Lee's phony site contained one feature that was not on the genuine site, the online entry form that allowed residents of Japan to sign up for the marathon and provide a credit card account number to be billed for payment of the entry fee. The information entered on this form was processed using a "script," which is a program written in "common gateway interface," or "CGI," a programming language. The CGI script used by Lee's phony site didn't directly charge credit cards. It just stored the credit card data in a file on Lee's server, so that Lee could manually charge the cards later. (This database file was password protected, which the government's witness testified would require some knowledge of the server's operating system.) An excerpt of FrontPage 98 for Dummies that was read into the record told readers that to do CGI scripts, they should get help from someone experienced with computer programming. The official site's creator testified that writing a CGI form-handling script from scratch would have required significant programming expertise, but that modifying an existing script would have been much easier. She also testified that CGI scripts could be downloaded from the internet, and that web sites could be found that advised how to modify scripts to suit particular online forms.
The district court did not make a finding as to whether Lee copied the web site the easy way, such as by using FrontPage 98 and Front Page 98 for Dummies (and perhaps deleting the software's identifying code using a text editor), or the hard way, using a text editor to copy the web site's HTML files page by page and figuring out the original site's directory structure. Nor did the court make a finding as to whether Lee downloaded the CGI script for his online form from the internet or made it himself from scratch, and if so, whether he had any expert assistance. Nor did the court make a finding as to whether Lee or his internet service provider maintained his server. The district court found that Lee "was skilled at accessing and manipulating computer systems" and imposed the special skills enhancement. The adjustment raised the guideline sentencing range from six to twelve months to ten to sixteen months. This increase deprived the district court of the sentencing option of imposing no imprisonment.6
Although Lee pleaded guilty, he reserved his right to appeal if the district court imposed the two-level special skill adjustment under U.S.S.G. § 3B1.3 (2000). Serving of the sentence awaits disposition of this appeal.
We said in another special skills adjustment case, United States v. Petersen,7 in dictum that we now adopt, that "[b]ecause a district court's determination that a defendant's particular abilities constitute a `special skill' is essentially a matter of `application of the guidelines to the facts,' ... an abuse of discretion standard should guide our review," except where "questions of law may arise in deciding whether a defendant used a special skill," for which review is non-deferential.8
The special skill adjustment provides for a two-level increase "[i]f the defendant abused a position of public or private trust, or used a special skill, in a manner that significantly facilitated the commission or concealment of the offense."9 The abuse of a position of trust part of the adjustment applies to positions "characterized by professional or managerial discretion," such as an attorney serving as a guardian who embezzles the client's money, a bank executive's fraudulent loan scheme, or a physician who sexually abuses a patient under the guise of an examination, but not to embezzlement by a bank teller or hotel clerk.10 The application note defining "special skill" says that it is 11
The district court based its imposition of the adjustment on our decision in United States v. Petersen.12 The issue in the case at bar is whether Lee was more like the defendant in Petersen, or more like the defendant in another of our special skills cases, going the other way, United States v. Green.13 We conclude that the scope of discretion was not broad enough, in view of the limited findings, to treat this case like Petersen, and that it has to be put in the same class as Green, where we held that it was an abuse of discretion to impose the special skills adjustment.14 This conclusion keeps our circuit's law consistent with that of the Sixth Circuit, which held in United States v. Godman15 that a level of computer expertise like Lee's did not justify imposition of the adjustment.16
The defendant in United States v. Petersen,17 which upheld the adjustment, was an expert hacker. He hacked into a...
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