United States v. Wadford

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 08-4423

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

KELLY EDWARD WADFORD, JR.,

Defendant – Appellant.

Appeal from the United States District Court for the District of
South Carolina, at Charleston. Patrick Michael Duffy, District
Judge. (2:06-cr-01294-PMD-1)

Argued: March 26, 2009 Decided: June 10, 2009

Before WILKINSON and SHEDD, Circuit Judges, and David A. FABER,
Senior United States District Judge for the Southern District of
West Virginia, sitting by designation.

Affirmed in part, vacated in part, and remanded by unpublished
opinion. Judge Shedd wrote the opinion, in which Judge
Wilkinson and Senior Judge Faber joined.

ARGUED: David Bruce Betts, Columbia, South Carolina, for
Appellant. Eric John Klumb, OFFICE OF THE UNITED STATES
ATTORNEY, Charleston, South Carolina, for Appellee. ON BRIEF:
W. Walter Wilkins, United States Attorney, Columbia, South
Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
SHEDD, Circuit Judge:

The United States filed an eleven-count superseding

indictment against Kelly Wadford Jr., charging him with a number

of federal offenses. The indictment included charges that

Wadford slipped a date rape drug into a co-worker’s drink while

they were on an interstate business trip and then took

photographs of her partially naked. The indictment further

alleged that Wadford unlawfully accessed protected computers and

sent false, fraudulent, and threatening e-mails in interstate or

foreign commerce to co-workers and attached copies of the

photographs. Wadford pled guilty to two of the counts, and a

federal jury found him guilty of the remaining nine counts.

Wadford now appeals, challenging the sufficiency of the evidence

with respect to Counts One through Seven of the indictment. For

the following reasons, we affirm in part, vacate in part, and

remand for further proceedings.

I

Viewing the evidence in the light most favorable to the

government, see Glasser v. United States, 315 U.S. 60, 80

(1942), the evidence at trial establishes the following.

Wadford worked in South Carolina as a manager of Pumps America,

a company which distributed electric water pumps throughout the

United States. Pumps America is a subsidiary of Leader Pumps,

2
an Italian manufacturer of electric water pumps. Pumps America

employees used the company’s computers in South Carolina to

communicate with employees located in Italy, and employees in

Italy used the company’s computers to access electronic

information stored in South Carolina.

In January 2005, Wadford hired a woman (hereinafter, the

“co-worker”) as a sales representative for Pumps America. In

March 2005, Wadford purchased approximately 250 tablets of

Rohypnol from a pharmacy in Brazil. Rohypnol, which is illegal

in the United States, is a brand name for the drug

flunitrazepam. It is known as a “date rape drug” because it has

been secretly given to individuals to facilitate sexual

assaults. 1

On April 11, 2005, Wadford and the co-worker left South

Carolina by car on a multi-day interstate sales trip. Wadford

selected the customers they would visit ahead of time, and he

brought one or more Rohypnol tablets with him. The next day,

after meeting with a customer in Ohio, Wadford and the co-worker

stopped for gas, and he offered to get her a drink. Wadford

went into a store and returned with a fountain soda for her.

1
Flunitrazepam is a strong central nervous system
depressant which causes extreme sleepiness and amnesia. It is
water-soluble, tasteless, and odorless.

3
Wadford put flunitrazepam in her drink without her knowledge.

She consumed the drink and shortly thereafter became nauseated.

When they arrived at a hotel later that day, Wadford

checked them into separate rooms and then helped the co-worker

into her room. The next thing she remembered is waking up the

next morning. Unbeknownst to her, Wadford had entered her hotel

room during the night and had taken photographs of her naked

from the waist down.

Over a year later, in May 2006, someone sent an anonymous

e-mail to Pumps America’s parent company in Italy, complaining

that Wadford was sexually harassing employees. The company

initiated an internal investigation and began interviewing

employees about the allegations. The co-worker and her fellow

employees, Mary Brown and Vicki Hilderbrand, were among those

interviewed. Wadford was fired sometime in June 2006.

During May and June 2006, Wadford accessed the work e-mail

accounts of Hilderbrand and Brown and sent a series of

unauthorized e-mails under their names in an effort to disguise

his identity. In the e-mails, Wadford sent copies of the

photographs and threatened Pumps America employees in an effort

to get them to retract allegations about him so he could retain

or get his job back. Three of the e-mails are particularly

relevant to this appeal.

4
 On May 20, Wadford sent an e-mail from Hilderbrand’s work

e-mail account to Brown’s work e-mail account, and it contained

the following text: “Mary, If you care about the long term

future of your grandkids you should tell the truth and resign

from the company.” J.A. 661-62. It was signed “Vicki.” Id.

The government introduced the expanded header information for

this e-mail into evidence. 2 The expanded header included data

about the route the e-mail took from sender to recipient. When

coupled with other evidence presented at trial, including the

expert testimony of an FBI computer forensic examiner, the

header information shows that the e-mail was sent from Wadford’s

home in South Carolina and travelled through a Leader Pumps

server located in Italy before it was received by Brown back in

South Carolina. This e-mail serves as the basis for Count Five

of the indictment.

On June 20, Wadford sent an e-mail from Hilderbrand’s work

e-mail account to her personal e-mail account, which ended in

“@aol.com.” This e-mail contained the following text: “If you

wish to ensure the long term welfare of evryone [sic] close to

2
E-mails usually display partial header information which
reveals the basic to/from information, the date, and the subject
line of the e-mail. However, users can access an e-mail’s
extended header information which contains additional
information, such as the Internet Protocol addresses associated
with the sender and recipient and information about the servers
that processed the e-mail.

5
you, you should consider telling the truth and resign from your

position,” J.A. 664, and it serves as the basis for Count Six.

Like the e-mail underlying Count Five, the government introduced

the expanded header information for this e-mail. The evidence

indicates that Wadford sent this e-mail from his home in South

Carolina and that Hilderbrand received it in South Carolina.

Unlike the Count Five e-mail, however, this one did not pass

through the company’s server in Italy because Wadford sent it to

Hilderbrand’s personal e-mail account. Instead, the e-mail

passed through servers owned or operated by various companies,

including America Online (“AOL”). 3 While the expanded header

information appears to contain data about the AOL servers

through which the e-mail passed, the government did not

introduce any evidence regarding the location of those servers

or the specific route this e-mail travelled. The government’s

computer forensic examiner testified that the Internet is

basically a group of computers and servers acting together, but

the government did not ask, and the expert did not offer, any

opinion on whether an e-mail sent from South Carolina to an

3
AOL provides a number of online communications tools, such
as e-mail, news groups, and chat rooms, that allow its
subscribers to communicate with one another and with other users
over the Internet.

6
“@aol.com” address which was received in South Carolina could or

would travel outside the state.

Also on June 20, Wadford sent an e-mail from Brown’s work

e-mail account to Hilderbrand’s work e-mail account and from

there forwarded the e-mail to the co-worker’s work e-mail

account. Wadford attached three photographs he took of the co-

worker during their April 2005 sales trip showing her naked from

the waist down. The e-mail contained the following text: “there

are 137 more like these but better. To prevent widespread

distribution, you need to contact the one you have wronged.”

J.A. 659-60. It was signed “Vicki.” Id. The expanded header

information and other evidence in the record establishes that

Wadford sent this e-mail from his home in South Carolina and it

travelled through a company server in Italy before being

received by the co-worker back in South Carolina. This e-mail

serves as the basis for Count Seven.

As noted, the government filed an eleven-count superseding

indictment against Wadford. 4 After he pled guilty to two firearm

4
After the grand jury returned an eight-count indictment
against Wadford, he was released on bond pending trial.
Approximately two weeks later, a police officer on patrol
spotted Wadford on the same street where the co-worker lived.
Wadford was wearing a black mask, a hooded sweatshirt, and
gloves. He was also carrying a backpack. When the officer
stopped Wadford and examined the contents of his backpack, the
officer found a handgun with the safety off and a bullet in the
chamber. The officer also found Rohypnol tablets in Wadford’s
(Continued)
7
possession counts, a federal jury found him guilty of the

remaining nine counts. At the close of the government’s case,

Wadford moved for a judgment of acquittal under Fed.R.Crim.P. 29

based on insufficiency of the evidence, and he renewed the

motion at the close of all evidence and after the jury returned

its verdict. The district court denied Wadford’s motions and

sentenced him to a total term of 180 months imprisonment. This

appeal followed.

II

Wadford argues that the district court erred by denying his

Rule 29 motion. In particular, he argues that we should vacate

his convictions on Counts One through Seven because certain

elements of the offenses charged in those counts are not

supported by substantial evidence.

We review the district court’s decision to deny a Rule 29

motion for judgment of acquittal de novo. United States v.

Gallimore, 247 F.3d 134, 136 (4th Cir. 2001). Where, as here,

car, which was parked nearby. The government then filed the
superseding indictment, which included three additional charges
based on Wadford’s post-indictment conduct: possession of a
firearm by a felon in violation of 18 U.S.C. §§ 922(g)(1),
924(a)(2), 924(e), and 3147(1); attempted witness tampering in
violation of 18 U.S.C. §§ 1512(a)(2)(A) and 3147(1); and
carrying a firearm during and in relation to his attempt to
tamper with a witness in violation of 18 U.S.C. § 924(c)(1).

8
the motion was based on a claim of insufficient evidence, “[t]he

verdict of a jury must be sustained if there is substantial

evidence, taking the view most favorable to the Government, to

support it.” Glasser, 315 U.S. at 80. Substantial evidence is

evidence which “a reasonable finder of fact could accept as

adequate and sufficient to support a conclusion of a defendant’s

guilt beyond a reasonable doubt.” United States v. Burgos, 94

F.3d 849, 862 (4th Cir. 1996) (en banc). In evaluating the

sufficiency of the evidence, we do not review the credibility of

the witnesses, and we assume that the jury resolved all

contradictions in the testimony in favor of the government.

United States v. Sun, 278 F.3d 302, 313 (4th Cir. 2002). In

addition, we consider circumstantial and direct evidence, and

allow the government the benefit of all reasonable inferences.

United States v. Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982).

A.

In Count One, the government charged Wadford with attempted

computer fraud in violation of 18 U.S.C. §§ 1030(a)(4) and

1030(b). As an element of the offense, the government must show

that Wadford accessed or attempted to access a “protected

computer,” 18 U.S.C. § 1030(a)(4), which includes a computer

“used in or affecting interstate or foreign commerce or

communication,” id. § 1030(e)(2)(B).

9
 Wadford argues that his conviction on Count One should be

vacated because there is no evidence that the computers in

question were “protected computers.” We disagree. The evidence

adduced at trial indicates that the company’s computers were

used by employees in South Carolina to communicate with

employees in Italy and that employees in Italy used the

computers to access electronic data stored in South Carolina.

Viewing this evidence in the light most favorable to the

government, we conclude that substantial evidence supports the

jury’s verdict because the computers were used in foreign

communication. See, e.g., Cable & Wireless P.L.C. v. FCC, 166

F.3d 1224, 1231 (D.C. Cir. 1999) (recognizing that Congress has

defined the phrase “foreign communication” as a “‘communication

or transmission from or to any place in the United States to or

from a foreign country’”). 5

B.

In Count Three, the government charged Wadford with

attempted possession of flunitrazepam with intent to distribute

it in violation of 21 U.S.C §§ 841(a)(1), 841(b)(1)(D), and 846.

5
Wadford also argues that the jury’s verdict on Count Two,
which alleged aggravated identity theft in violation of 18
U.S.C. § 1028A(a)(1) could not be sustained because it was
dependent upon a valid finding of guilt on Count One. Because
we reject Wadford’s argument regarding Count One, we find that
his argument regarding Count Two is also without merit.

10
Wadford argues that his conviction under Count Three should be

vacated because there is no evidence that he intended to

distribute the flunitrazepam. However, viewing the evidence in

the light most favorable to the government, including the

evidence that Wadford purchased approximately 250 tablets

containing flunitrazepam before his April 2005 trip with the co-

worker, brought one or more of the tablets with him on the trip,

and then placed the drug in her drink, we conclude that

substantial evidence supports this element of the charged

offense.

C.

In Count Four, the government charged Wadford with

violating the Mann Act, 18 U.S.C. § 2422(a), which generally

prohibits a person from coercing or inducing another to travel

in interstate commerce to engage in unlawful sexual activity.

Wadford argues that the evidence is insufficient to support a

finding that he induced the co-worker to travel in interstate

commerce to engage in unlawful sexual activity. Specifically,

he argues that the evidence shows that they left South Carolina

on a legitimate business trip and, at most, he drugged and

photographed the co-worker entirely within Ohio. We disagree.

To establish a violation of the Mann Act, the government

does not need to establish that an unlawful purpose was the sole

factor motivating Wadford’s interstate travel. Some courts have

11
sustained Mann Act convictions where the unlawful purpose was

simply one of the purposes motivating the interstate travel

while other courts have required the unlawful purpose to be the

dominant purpose. See, e.g., United States v. Vang, 128 F.3d

1065, 1071 (7th Cir. 1997). The evidence in this case tends to

prove that Wadford purchased the flunitrazepam approximately two

months after he hired the co-worker and one month before he went

on the April 2005 interstate trip with her. The evidence also

indicates that Wadford decided where they would travel on their

trip, took one or more tablets containing flunitrazepam with him

on the trip, slipped the drug into her drink, and then took

photographs of her naked while she was under the influence of

the drug. Viewed in the light most favorable to the government,

we conclude that substantial evidence supports a finding that an

unlawful purpose was not only one of the purposes motivating

Wadford’s interstate travel but a dominant purpose.

D.

In Counts Five, Six, and Seven, the government charged

Wadford with sending three threatening e-mails in violation of

18 U.S.C. §§ 875(b) and (d). Wadford argues that substantial

evidence does not support a finding that the e-mails underlying

these counts were transmitted in either interstate or foreign

commerce as required by §§ 875(b) and (d). As set forth below,

12
we find that substantial evidence supports the jury’s verdict

with respect to Counts Five and Seven, but not Count Six.

A conviction under either §§ 875(b) or (d) requires the

government to prove that the threatening communication was

transmitted “in interstate or foreign commerce.” 18 U.S.C. §

875(b) (emphasis added); id. § 875(d). The emphasized language

is important because “Congress uses different modifiers to the

word ‘commerce’ in the design and enactment of its statutes.”

Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 115 (2001).

For example, “[t]he phrase ‘affecting commerce’ indicates

Congress’ intent to regulate to the outer limits of its

authority under the Commerce Clause.” Id. In contrast, the

words in commerce are “understood to have a more limited reach.”

Id. Courts have repeatedly held that the in commerce

formulation requires that the communication actually cross a

state or national border. See, e.g., United States v. Lewis,

554 F.3d 208, 212-14 (1st Cir. 2009); United States v. Schaefer,

501 F.3d 1197, 1200-02 (10th Cir. 2007); Smith v. Ayres, 845

F.2d 1360, 1366 (5th Cir. 1988). Consistent with these cases,

we find that §§ 875(b) and (d) require as an element of the

offenses that the communication cross a state or national

border. This element can be established by either direct or

circumstantial evidence.

13
 With respect to the e-mail Wadford sent to Brown’s work e-

mail address and the e-mail he sent to Hilderbrand’s and the co-

worker’s work e-mail addresses – i.e., those underlying Counts

Five and Seven – we find that substantial evidence supports a

finding that they were transmitted in interstate or foreign

commerce. As noted above, the evidence indicates that these e-

mails were sent from South Carolina and travelled through

servers located in Italy before they were received by these

employees back in South Carolina.

We reach a different conclusion with respect to the e-mail

underlying Count Six – the e-mail Wadford sent to Hilderbrand’s

personal “@aol.com” e-mail address – because substantial

evidence does not support a finding that this e-mail was

transmitted in interstate or foreign commerce. The government

concedes that there is no direct evidence on this point, and we

discern no circumstantial evidence in this record which would

allow a reasonable juror to infer that the e-mail crossed a

state or national border. 6 Therefore, we agree with Wadford that

his conviction on Count Six must be vacated. 7

6
We recognize that other courts have found that e-mails
sent to an “@aol.com” address always pass through AOL servers
located in Virginia before arriving at their final destination.
See, e.g., Jaynes v. Commonwealth, 666 S.E.2d 303, 307 (Va.
2008). However, the government acknowledges that the record in
this case is silent on the location of AOL’s servers. Moreover,
the government asserted at oral argument that it would not be
(Continued)
14
 III

For the foregoing reasons, we affirm the district court in

part, vacate in part, and remand for further proceedings

consistent with this opinion.

AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED

appropriate to take judicial notice that AOL’s servers are
located in Virginia.
7
It appears that vacating Wadford’s conviction on Count Six
will not alter his length of imprisonment. The district court
sentenced Wadford to a 70-month prison term on Count Six, but
this term was to run concurrently with at least one other 70-
month prison term.

15