United States v. Brody
| Decision Date | 16 March 2023 |
| Docket Number | 3:22-cr-00168-WHO-1 |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. MIKLOS DANIEL BRODY, Defendant. |
| Court | U.S. District Court — Northern District of California |
PRETRIAL ORDER ON MOTIONS IN LIMINE AND OBJECTIONS TO EXHIBITS RE: DKT. NOS. 148, 149
This case arises out of an alleged intrusion into and subsequent damage of secure computer servers and systems at First Republic Bank (“FRB”). Defendant Miklos Brody is charged with (1) obtaining information for a protected computer, in violation of 18 U.S.C. §§ 1030(a)(2)(C), (c)(2)(B); (2) intentional transmission of a program, information, code, or command to cause damage to a protected computer, in violation of 18 U.S.C. §§ 1030(a)(5)(A), (c)(4)(B)(i); and (3) making a false statement to a government agency, in violation of 18 U.S.C. § 1001(a)(2). Superseding Indictment (“SI”) [Dkt No. 101].
Before me are motions in limine filed by Brody and the government along with their objections to the motions. My decisions are subject to change depending on the presentations at trial including whether the parties open the door to particular evidence. Before either party acts contrary to these rulings, they are ORDERED to raise the issue to me outside the presence of the jury, during one of the daily pretrial conferences at 8:00 a.m.
The alleged intrusion into FRB's computer systems began on the evening of March 11, 2020, and lasted until the morning of March 12, 2020. See SI. The background facts are outlined in my previous Order at Dkt. No. 143, and this order assumes familiarity with those facts.
At issue here are thirteen motions in limine, five filed by Brody (“Def. Mot.”), Dkt. No. 149, and eight filed by the government (“Gov. Mot.”), Dkt. No. 148. Each party filed an opposition. (“Def. Oppo.”) [Dkt. No. 159]; (“Gov. Oppo.”) [Dkt. No. 154]. I held a pretrial conference on March 13, 2023, which included a hearing on these motions, and Brody as well as counsel for both parties appeared.
Brody seeks to exclude any evidence related to his termination-except for the fact that he was terminated-and specifically moves to exclude evidence that refers to pornography or that shows he was skiing on March 2, 2020, rather than home sick as he told his employer.[1] Def. Mot. 1:18-2:11; 4:10-5:3. Brody argues that the pornography-related evidence is inflammatory, highly prejudicial, and irrelevant, and the introduction of it risks the jury improperly convicting him for violating FRB's internal policy rather than the charged statutes. Id. 2:12-3:28. He also asserts skiing-related evidence is propensity evidence with no probative value and that the seizure of such evidence violated his Fourth Amendment rights.[2] See id. 5 n.1. In turn, the government argues that to present a coherent and comprehensible story, including to establish Brody's motive and intent, it must be permitted to present evidence that Brody plugged into his work computer a USB drive with pornography, and that he did so while he was skiing in Tahoe rather than home sick, as he had told FRB. Gov. Mot. 18:20-22:17.
Brody's motions are DENIED. Evidence of Brody's actions between March 2 and March 20 is admissible; the evidence related to pornography and skiing are “inextricably intertwined” with the government's theory of the case because they are probative of motive and intent. See United States v. Vizcarra-Martinez, 66 F.3d 1006, 1012 (9th Cir. 1995). Several exhibits show that Brody contemporaneously told coworkers, family members, and other individuals that he was unfairly fired for plugging in a USB drive to watch a movie while he was sick. Allowing Brody to assert this version of the facts without permitting the government to provide context to support its version of the facts prejudices the government by precluding it from effectively explaining its theory of motive and intent.[3] Indeed in Vizcarra-Martinez, 66 F.3d at 1013, the Ninth Circuit explained that “other act” evidence may be admitted without running afoul of FRE 404 “to explain either the circumstances under which particular evidence was obtained or the events surrounding the commission of the crime,” specifically noting that the prosecution may present prejudicial evidence to contextualize a defendant's allegedly illegal conduct and rebut defenses. Here, the government seeks to use this evidence to contextualize its allegations that Brody was motivated to commit the intrusion and to rebut Brody's defenses that someone else committed the alleged acts. See also id. (). Accordingly, using this evidence to show motive and intent is permissible.
To the extent that Brody asserts he would be prejudiced by either category of evidence, any speculative prejudice is outweighed by the highly probative nature of the evidence-particularly because it is not clear that there is other evidence of motive or intent. And neither viewing pornography nor “taking a mental health day,” Def. Mot. 4:18, 4:25-26, is unlawful, so there is no risk that the jury would conflate those actions with the alleged federal law violations here. Additionally, I am not persuaded by Brody's argument that introducing evidence of pornography or skiing will cause the jury to improperly convict him of the charged crimes based solely on the evidence that he violated FRB's internal policies.[4] See Def. Mot. 2:12-3:9. The jury will receive substantial evidence of the alleged intrusion, including the dates that it occurred, and will receive proper instructions as to the elements of the crime; there is no risk that the jury will base its ultimate decision on separate actions that occurred weeks before the alleged crime. I am similarly unpersuaded by Brody's assertion that evidence of the violation of company policy is “propensity” evidence that the government wants to use to show Brody committed a federal crime; not only does that stretch logic, but also the government has repeatedly explained that it seeks to use the evidence only to establish motive and intent.
Accordingly, the government may admit such evidence. To the extent that Brody would like to request a limiting instruction on either category of evidence, he is free to suggest one.
Brody seeks to ensure that the government will not introduce previously undisclosed experts at trial. Def. Mot. 5:4-6:18. He does not say whether the government has implied it will do so, but it seems his concern is that the government's three disclosed witnesses do not have expertise in Terraform technology and so should not be allowed to testify about the Terraform-related allegations. Id. With respect to evidence about Terraform, the government says this it plans to introduce only fact testimony, not opinion testimony that would call for an expert, and that it will have testify “percipient fact witnesses at First Republic Bank with personal knowledge of that fact.” Gov. Oppo. 4:9-22.
Federal Rule of Criminal Procedure 16(a)(1)(G) provides that, if the defendant so requests, the government must disclose information about each expert witness it intends to use or call at trial. Under Rule 16(d)(2), if the government fails to comply with these disclosure requirements, the court may (A) “order that party to permit the discovery or inspection; specify its time, place, and manner; and prescribe other just terms and conditions”; (B) “grant a continuance”; (C) “prohibit that party from introducing the undisclosed evidence”; or (D) “enter any other order that is just under the circumstances.” Fed. R. Crim. Proc. 16(d)(2)(A)-(D).
Given the lack of any indication that the government intends to introduce any previously undisclosed expert testimony, this motion is DENIED. Should the issue become relevant at trial, Brody may raise it again then.
Brody moves to exclude any lay testimony offered as expert witness testimony. Def. Mot. 7:1-8:5. Again he points to no specific testimony or witness and provides no indication that the government plans on introducing such testimony, but it seems his concern is that the government will use lay witnesses to explain complex or technical evidence that requires expert testimony to parse. See id.
To the extent that this motion is directed at FRB employees who will testify about technical topics within their personal knowledge and experience, particularly pertaining to discovering, investigating, assessing, and repairing damage from the intrusion, see Gov. Oppo. 5:1-7:11, Brody's motion is DENIED. Witnesses may testify to matters for which they have personal knowledge. Fed.R.Evid. 602. And lay witnesses may testify to their opinions under FRE 701, outside of the scope of expert testimony permitted by FRE 702.
On this point, I agree with the reasoning in USA v. Chen where the Hon. Beth Labson Freeman permitted lay witnesses to testify as to “their personal knowledge and positions in the day-to-day affairs of a business without being qualified as an expert and running afoul of Rule 701's bar of lay testimony ‘based on scientific, technical or other specialized knowledge'” even where the testimony concerned trade secrets, computer forensics, and other technical information. No. 17-CR-00603-BLF-1, 2021 WL 2662116, at *9 (N.D. Cal. June 29,...
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