U.S. v. Sablan, 94-10533

• Decision Date: 07 August 1996
• Docket Number: No. 94-10533,94-10533
• Citation: 92 F.3d 865
• Parties: 96 Cal. Daily Op. Serv. 5870, 96 Daily Journal D.A.R. 9565 UNITED STATES of America, Plaintiff-Appellee, v. Bernadette H. SABLAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 865

92 F.3d 865

96 Cal. Daily Op. Serv. 5870, 96 Daily Journal

D.A.R. 9565

UNITED STATES of America, Plaintiff-Appellee, v. Bernadette H. SABLAN, Defendant-Appellant.

No. 94-10533.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Nov. 3, 1995.

Decided Aug. 7, 1996.

David K. Link, Hogan & Link, Agana, Guam, for defendant-appellant.

Mark E. Kondas, Assistant United States Attorney, Agana, Guam; Stevan D. Mitchell, United States Department of Justice, Washington, D.C., for plaintiff-appellee.

Appeal from the United States District Court for the District of Guam, John S. Unpingco, District Judge, Presiding. D.C. No. CR-94-00017-JSU.

Before HUG, Chief Judge, THOMPSON and O'SCANNLAIN, Circuit Judges.

HUG, Chief Judge:

Bernadette H. Sablan appeals her conviction for computer fraud under 18 U.S.C. § 1030(a)(5) 1988, amended by Pub.L. No. 103-322, § 290001(b), 108 Stat.2097-2099 (Sept. 13, 1994), following a conditional guilty plea. Sablan argues that the district court wrongly interpreted the elements of the crime and, alternatively, that the statute is unconstitutional. Sablan also challenges the district court's calculation of the loss attributable to her conduct, the court's decision not to depart downward, and the restitution order. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3576. We affirm Sablan's conviction and her sentence. However, we reverse and remand for a recalculation of the restitution award.

FACTS

In the early hours of August 15, 1992, Sablan, a former employee of the Bank of Hawaii's Agana, Guam branch, left a bar where she had been drinking with a friend. Sablan had recently been fired from the bank for circumventing security procedures in retrieving files. That morning, Sablan left the bar and entered the closed bank through an unlocked loading dock door. She went to her former work site (using a key she had kept) and used an old password to log into the bank's mainframe. Sablan contends that she then called up several computer files and logged off. The Government asserts that Sablan changed several of the files and deleted others. Under either version, Sablan's conduct severely damaged several bank files.

Sablan was charged with computer fraud in violation of 18 U.S.C. § 1030(a)(5) (the "computer fraud statute"). In a pretrial motion to dismiss, Sablan attacked the statute for its failure to require a mens rea for each of the essential elements of the offense. In the alternative, Sablan requested a jury instruction that required the Government to prove intent as to all elements of the crime. In particular, Sablan wanted the jury to be instructed that the Government needed to prove that she had the intent to damage bank files. The district court denied the motion and ruled that, as used in the computer fraud statute, the word "intentionally" applied only to the access element of the crime. Sablan then entered into a conditional plea agreement that preserved her right to appellate review of the issue raised in her motion.

The district court calculated Sablan's sentence under Sentencing Guideline § 2F1.1(a), and enhanced her sentence due to the amount of damage caused by Sablan's conduct. The calculation included the cost of numerous hours of computer programming to restore the damaged files. Sablan asserts that the district court improperly calculated the amount of damage due to her actions and that the improper calculation led to (1) an improperly enhanced sentence, (2) a refusal to depart downward, and (3) an improper restitution order.

DISCUSSION

I. THE COMPUTER FRAUD STATUTE

Sablan contends on appeal that the computer fraud statute must have a mens rea requirement for all elements of the crime. She asserts that the indictment was defective because it did not allege the appropriate mens rea required by the statute. In the alternative, Sablan asserts that a jury instruction was required to inform the jurors that the state had to prove intent for every element of the crime.

Sablan was convicted under the version of the computer fraud statute in effect from 1986 to 1994. That statute stated:

(a) Whoever--

...

* * *

(5) intentionally accesses a Federal interest computer without authorization, and by means of one or more instances of such conduct alters, damages, or destroys information in any such Federal interest computer ... and thereby--

(A) causes loss to one or more others of a value aggregating $1,000 or more during any one year period;

...

* * *

shall be punished as provided....

18 U.S.C. § 1030 (amended by Pub.L. No. 103-354). In order to have violated the statute, a defendant must have (1) accessed (2) a federal interest computer (3) without authorization and (4) have altered, damaged, or destroyed information (5) resulting in the loss to one or more others (6) of at least one thousand dollars. The district court held that the statute's mens rea requirement, "intentionally," applied only to the access element of the crime. We review questions of statutory interpretation de novo. United States v. Valencia-Roldan, 893 F.2d 1080, 1082 (9th Cir.), cert. denied, 495 U.S. 935, 110 S.Ct. 2181, 109 L.Ed.2d 509 (1990).

A.

We begin our analysis by noting that the statute is ambiguous as to its mens rea requirement. Although the statute explains that one must "intentionally access[ ] a Federal interest computer without authorization, and ... destroy[ ] information in any such Federal interest computer," punctuation sets the "accesses" phrase off from the subsequent "damages" phrase. With some statutes punctuation has been used to indicate that a phrase set off by commas is independent of the language that followed. E.g., United States v. Ron Pair Enters., Inc., 489 U.S. 235, 241, 109 S.Ct. 1026, 1030, 103 L.Ed.2d 290 (1989). However, punctuation is not always decisive in construing statutes. See Costanzo v. Tillinghast, 287 U.S. 341, 53 S.Ct. 152, 77 L.Ed. 350 (1932). In Liparota v. United States, 471 U.S. 419, 105 S.Ct. 2084, 85 L.Ed.2d 434 (1985), and United States v. X-Citement Video, --- U.S. ---- 115 S.Ct. 464, 130 L.Ed.2d 372 (1994), for example, the Supreme Court applied the mental state adjacent to initial words to later clauses without regard to intervening punctuation. In both cases, the Supreme Court resorted to legislative history to clarify the ambiguous language.

We conclude that the comma after "authorization" does not resolve the ambiguity. Allowing the mens rea requirement to reach subsequent elements of the crime would comport with general linguistic rules. Similarly, it is proper to read the statute without extending "intentionally" to the other clauses of the sentence. Therefore, we look to the statute's legislative history to clear up the textual ambiguity. See X-Citement Video, --- U.S. at ----, 115 S.Ct. at 469.

In United States v. Morris, 928 F.2d 504 (2d Cir.), cert. denied, 502 U.S. 817, 112 S.Ct. 72, 116 L.Ed.2d 46 (1991), the Second Circuit examined the legislative history of the computer fraud statute and concluded that the "intentionally" standard applied only to the "accesses" element of the crime. Id. at 509. The court focused on the fact that original version of the statute, passed in 1984, punished anyone who

knowingly accesses a computer without authorization, or having accessed a computer with authorization, uses the opportunity such access provides for purposes to which such authorization does not extend, and by means of such conduct knowingly uses, modifies, destroys, or discloses information in, or prevents authorized use of, such computer, if such computer is operated for or on behalf of the Government of United States and such conduct affects such operation.

Pub.L. No. 98-473, subsection (a)(3) (amended latest by Pub.L. No. 103-354) (emphasis added). When the statute was amended in 1986, the scienter requirement was changed from knowingly to intentionally ¹ and the second mens rea reference was eliminated. By contrast, other subsections of section 1030 retained the "dual-intent" language by placing the mens rea requirement at the beginning of both the "accesses" phrase and the "damages" phrase. See, e.g., 18 U.S.C. § 1030(a)(1). The court concluded that the decision of Congress not to repeat the scienter requirement within this statute evidenced an intent not to require the Government to prove a defendant's intent to cause damage. Morris, 928 F.2d at 509.

Sablan urges this court to reject the holding in Morris, contending that the 1986 bill was intended only to apply to those who intentionally damage computer data. She points to one line in a Senate report that evidenced a desire to retain the dual intent language: "The new subsection 1030(a)(5) to be created by the bill is designed to penalize those who intentionally alter, damage, or destroy certain computerized data belonging to another." 1986 U.S.C.C.A.N. at 2488. Thus, Sablan argues, the computer fraud statute has a mens rea requirement for the damages clause of the bill. We disagree.

As the Morris court concluded:

Despite some isolated language in the legislative history that arguably suggests a scienter component for the "damages" phrase of section 1030(a)(5)(A), the wording, structure, and purpose of the subsection, examined in comparison with its departure from the format of its predecessor provision persuade us that the "intentionally" standard applies only to the "accesses" phrase of section 1030(a)(5)(A), and not to its "damages" phrase.

Morris, 928 F.2d at 509. We adopt the reasoning of the Morris court and hold that the computer fraud statute does not require the Government to prove that the defendant intentionally damaged computer files.

B.

Sablan contends that if the computer fraud statute does not have a mens rea requirement for the damages element of the offense, the statute is unconstitutional. Relying on the Supreme Court's decision in X-Citement Video, --- U.S. at ----, 115 S.Ct at 464, Sablan states that a mens...