United States v. Czubinski

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 96-1317

UNITED STATES,

Appellee,

v.

RICHARD W. CZUBINSKI,

Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nathaniel M. Gorton, U.S. District Judge]

[Hon. Robert B. Collings, U.S. Magistrate Judge]

Before

Torruella, Chief Judge,

Bownes, Senior Circuit Judge,

and Stahl, Circuit Judge.

Susan B. Hanmer, with whom Oliver C. Mitchell, Jr., Louis J.

Scerra, Jr. and Goldstein & Manello, P.C. were on brief for

appellant.
S. Theodore Merritt, Assistant United States Attorney, with

whom Donald K. Stern, United States Attorney, and Amy B. Lederer,

Assistant United States Attorney, were on brief for appellee.

February 21, 1997

TORRUELLA, Chief Judge. Defendant-appellant Richard
TORRUELLA, Chief Judge.

Czubinski ("Czubinski") appeals his jury conviction on nine

counts of wire fraud, 18 U.S.C. 1343, 1346, and four counts of

computer fraud, 18 U.S.C. 1030(a)(4). The wire fraud and

computer fraud prosecution that led to the conviction survived

serious challenges put forward by Czubinski in various pre-trial

motions. Given the broad scope of the federal fraud statutes,

motions charging insufficient pleadings or selective prosecution

generally deserve careful consideration. We need not scrutinize

the lower court's rejection of the defendant's arguments in favor

of dismissing the indictment, however, because we reverse the

conviction on the clearer ground that the trial evidence mustered

by the government was insufficient to support a guilty verdict,

and hold that the defendant's motion for judgment of acquittal

should have been granted on all counts. Unauthorized browsing of

taxpayer files, although certainly inappropriate conduct, cannot,

without more, sustain this federal felony conviction.

BACKGROUND
BACKGROUND

I. Pertinent Facts
I. Pertinent Facts

On an appeal from a jury conviction, we review the

relevant facts in the light most favorable to the government.

United States v. Tierney, 760 F.2d 382, 384 (1st Cir. 1985). The

evidence in this case, so presented, is inadequate to support

convictions on either the wire fraud or computer fraud charges.

For all periods relevant to the acts giving rise to his

conviction, the defendant Czubinski was employed as a Contact

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Representative in the Boston office of the Taxpayer Services

Division of the Internal Revenue Service ("IRS"). To perform his

official duties, which mainly involved answering questions from

taxpayers regarding their returns, Czubinski routinely accessed

information from one of the IRS's computer systems known as the

Integrated Data Retrieval System ("IDRS"). Using a valid

password given to Contact Representatives, certain search codes,

and taxpayer social security numbers, Czubinski was able to

retrieve, to his terminal screen in Boston, income tax return

information regarding virtually any taxpayer -- information that

is permanently stored in the IDRS "master file" located in

Martinsburg, West Virginia. In the period of Czubinski's employ,

IRS rules plainly stated that employees with passwords and access

codes were not permitted to access files on IDRS outside of the

course of their official duties.1

In 1992, Czubinski carried out numerous unauthorized

1 In 1987 Czubinski signed an acknowledgment of receipt of the
IRS Rules of Conduct, which contained the following rule:

Employees must make every effort to
assure security and prevent unauthorized
disclosure of protected information data
in the use of Government owned or leased
computers. In addition, employees may
not use any Service computer system for
other than official purposes.

See Government's Exhibit 1. In addition, Czubinski received

separate rules regarding use of the IDRS, one of which states:

Access only those accounts required to
accomplish your official duties.

See Government's Exhibit 3.

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searches of IDRS files. He knowingly disregarded IRS rules by

looking at confidential information obtained by performing

computer searches that were outside of the scope of his duties as

a Contact Representative, including, but not limited to, the

searches listed in the indictment.2 Audit trails performed by

internal IRS auditors establish that Czubinski frequently made

unauthorized accesses on IDRS in 1992. For example, Czubinski

accessed information regarding: the tax returns of two

individuals involved in the David Duke presidential campaign; the

joint tax return of an assistant district attorney (who had been

prosecuting Czubinski's father on an unrelated felony offense)

and his wife; the tax return of Boston City Counselor Jim

Kelly's Campaign Committee (Kelly had defeated Czubinski in the

previous election for the Counselor seat for District 2); the tax

return of one of his brothers' instructors; the joint tax return

of a Boston Housing Authority police officer, who was involved in

a community organization with one of Czubinski's brothers, and

the officer's wife; and the tax return of a woman Czubinski had

dated a few times. Czubinski also accessed the files of various

other social acquaintances by performing unauthorized searches.

Nothing in the record indicates that Czubinski did

anything more than knowingly disregard IRS rules by observing the

confidential information he accessed. No evidence suggests, nor

2 The indictment charged ten counts of wire fraud for accessing
the return information of ten different entities; the four
computer fraud counts (counts eleven through fourteen) identified
unauthorized searches that also underlay four of the ten wire
fraud counts (counts one, two, eight and nine).

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does the government contend, that Czubinski disclosed the

confidential information he accessed to any third parties. The

government's only evidence demonstrating any intent to use the

confidential information for nefarious ends was the trial

testimony of William A. Murray, an acquaintance of Czubinski who

briefly participated in Czubinski's local Invisible Knights of

the Ku Klux Klan ("KKK") chapter and worked with him on the David

Duke campaign. Murray testified that Czubinski had once stated

at a social gathering in "early 1992" that "he intended to use

some of that information to build dossiers on people" involved in

"the white supremacist movement." Trial Transcript, Vol. 2 at

170, 188. There is, however, no evidence that Czubinski created

dossiers, took steps toward making dossiers (such as by printing

out or recording the information he browsed), or shared any of

the information he accessed in the years following the single

comment to Murray. No other witness testified to having any

knowledge of Czubinski's alleged intent to create "dossiers" on

KKK members.

The record shows that Czubinski did not perform any

unauthorized searches after 1992. He continued to be employed as

a Contact Representative until June 1995, when a grand jury

returned an indictment against him on ten counts of federal wire

fraud under 18 U.S.C. 1343, 1346, and four counts of federal

interest computer fraud under 18 U.S.C. 1030(a)(4).

The portion of the indictment alleging wire fraud

states that Czubinski defrauded the IRS of confidential property

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and defrauded the IRS and the public of his honest services by

using his valid password to acquire confidential taxpayer

information as part of a scheme to: 1) build "dossiers" on

associates in the KKK; 2) seek information regarding an assistant

district attorney who was then prosecuting Czubinski's father on

an unrelated criminal charge; and 3) perform opposition research

by inspecting the records of a political opponent in the race for

a Boston City Councilor seat. The wire fraud indictment,

therefore, articulated particular personal ends to which the

unauthorized access to confidential information through

interstate wires was allegedly a means.

The portion of the indictment setting forth the

computer fraud charges stated that Czubinski obtained something

of value, beyond the mere unauthorized use of a federal interest

computer, by performing certain searches -- searches representing

a subset of those making up the mail fraud counts.

II. Proceedings Below
II. Proceedings Below

After indictment and arraignment in June 1995,

Czubinski filed a motion to dismiss the indictment, a motion to

strike surplusage from the indictment, and a motion for discovery

from the government relating to a claim of selective prosecution.

In separate orders, a magistrate judge and the district court

rejected all of these motions. Specifically, the district court

rejected Czubinski's argument that counts 1 through 10 of the

indictment must be dismissed because "browsing" does not deprive

the IRS of any property and because section 1346, the intangible

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right to honest services amendment to the mail and wire fraud

statutes, was unconstitutionally vague as applied to him. In

December 1995, Czubinski filed motions in limine which

essentially sought to prevent references to certain white

supremacist activities, such as his membership in a KKK chapter,

during trial. This motion was also denied, although the trial

court gave a limiting instruction regarding the relevance of

Czubinski's KKK membership to a finding of wire fraud and

computer fraud.

On December 15, 1995, the district court denied

Czubinski's motion for judgment of acquittal on all counts except

for count 3,3 and on that day the jury returned a verdict finding

Czubinski guilty on all thirteen remaining counts. On appeal,

Czubinski challenges the denial of his motion to dismiss the

indictment, including the rejection of a selective prosecution

claim, the finding that he had not made out a prima facie case

of selective prosecution, the admission at trial of allegedly

inflammatory evidence of Czubinski's white supremacist

activities, the denial of his motion for acquittal, the jury

instructions, and the sentencing determination.

We reverse on the ground that the district court erred

in denying Czubinski's motion for acquittal, and therefore bypass

Czubinski's other claims.

3 On count 3, the district court ruled that there was
insufficient proof showing that the search alleged in count 3 was
not requested by the taxpayer whose files were browsed.

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STANDARD OF REVIEW
STANDARD OF REVIEW

A motion for judgment of acquittal under Federal Rule

of Criminal Procedure 29 is the proper vehicle for a defendant to

make a sufficiency challenge. See 2 C. Wright, Federal Practice

and Procedure: Crim. 2d 467 (1982). The denial of a motion for

judgment of acquittal presents a question of law, and our review

is de novo. See United States v. Staula, 80 F.3d 596, 604 (1st

Cir. 1996). We determine anew whether "the evidence is

sufficient to sustain a conviction." Fed. R. Crim. P. 29(a).

In determining the evidentiary sufficiency of a guilty

verdict, "the relevant question is whether, after viewing the

evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of

the crime beyond a reasonable doubt." Jackson v. Virginia, 443

U.S. 307, 319 (1979); see also United States v. Valle, 72 F.3d

210, 216 (1st Cir. 1995). The scope of review is over the

totality of the evidence, both direct and circumstantial: we

"take a hard look at the record" and "reject those evidentiary

interpretations and illations that are unreasonable,

insupportable, or overly speculative." United States v. Spinney,

65 F.3d 231, 234 (1st Cir. 1995).

DISCUSSION
DISCUSSION

I. The Wire Fraud Counts
I. The Wire Fraud Counts

We turn first to Czubinski's conviction on the nine

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wire fraud counts.4 To support a conviction for wire fraud, the

government must prove two elements beyond a reasonable doubt:

(1) the defendant's knowing and willing participation in a scheme

or artifice to defraud with the specific intent to defraud, and

(2) the use of interstate wire communications in furtherance of

the scheme. United States v. Sawyer, 85 F.3d 713, 723 (1st Cir.

1996) (citing United States v. Cassiere, 4 F.3d 1006, 1011 (1st

Cir. 1993)). Although defendant's motion for judgment of

acquittal places emphasis on shortcomings in proof with regard to

the second element, by arguing that the wire transmissions at

issue were not proved to be interstate, we find the first element

dispositive and hold that the government failed to prove beyond a

reasonable doubt that the defendant willfully participated in a

scheme to defraud within the meaning of the wire fraud statute.5

4 The federal wire fraud statute, 18 U.S.C. 1343, provides in
pertinent part:

Whoever, having devised or intending to
devise any scheme or artifice to defraud,
or for obtaining money or property by
means of false or fraudulent pretenses,
representations, or promises, transmits
or causes to be transmitted by means of
wire . . . communication in interstate or
foreign commerce, any writings, signs,
signals, pictures, or sounds for the
purpose of executing such scheme or
artifice, shall be fined under this title
or imprisoned not more than five years,
or both.

5 We do not find that it was irrational for a trier of fact to
conclude beyond a reasonable doubt that Czubinski's searches
caused information from the IDRS master file in Martinsburg, West
Virginia, to be sent to his terminal in Boston. The interstate
element could reasonably be inferred from circumstantial
evidence. See, e.g., Testimony of Edward Makaskill, Trial

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That is, assuming the counts accurately describe unauthorized

searches of taxpayer returns through interstate wire

transmissions, there is insufficiant record evidence to permit a

rational jury to conclude that the wire transmissions were part

of a criminal scheme to defraud under sections 1343 and 1346.

The government pursued two theories of wire fraud in

this prosecution: first, that Czubinski defrauded the IRS of its

property, under section 1343, by acquiring confidential

information for certain intended personal uses; second, that he

defrauded the IRS and the public of their intangible right to his

honest services, under sections 1343 and 1346.6 We consider the

evidence with regard to each theory, in turn.

A. Scheme to Defraud IRS of Property
A. Scheme to Defraud IRS of Property

The government correctly notes that confidential

Transcript, Vol. 3 at 82 (explaining that certain command codes
used by Czubinski generally access information from out-of-state
computer).

6 The district court's jury instructions on the wire fraud
counts repeat both of the scheme to defraud theories:

In this case, the government has charged
Mr. Czubinski with devising a scheme or
artifice, that is, a plan, to do two
things:
(1) to defraud the IRS, the United States
Government, and the citizens and
taxpayers of the United States by
depriving them of their intangible right
to his honest services as an IRS
employee; and
(2) to defraud the IRS and to obtain its
property, that is, confidential taxpayer
information, by false pretenses,
representations and promises.

Trial Transcript, Vol. 4 at 76-77.

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information may constitute intangible "property" and that its

unauthorized dissemination or other use may deprive the owner of

its property rights. See Carpenter v. United States, 484 U.S.

19, 26 (1987) ("Confidential business information has long been

recognized as property. . . . [A newspaper] had a property right

in keeping confidential and making exclusive use, prior to

publication, of the schedule and contents" of a particular

column.). Where such deprivation is effected through dishonest

or deceitful means, a "scheme to defraud," within the meaning of

the wire fraud statute, is shown. See id. at 27. Thus, a

necessary step toward satisfying the "scheme to defraud" element

in this context is showing that the defendant intended to

"deprive" another of their protected right.

The government, however, provides no case in support of

its contention here that merely accessing confidential

information, without doing, or clearly intending to do, more, is

tantamount to a deprivation of IRS property under the wire fraud

statute. In Carpenter, for example, the confidential information

regarding the contents of a newspaper column was converted to the

defendants's use to their substantial benefit. See id. at 27

(defendants participated in "ongoing scheme to share profit from

trading in anticipation" of newspaper column). We do not think

that Czubinski's unauthorized browsing, even if done with the

intent to deceive the IRS into thinking he was performing only

authorized searches, constitutes a "deprivation" within the

meaning of the federal fraud statutes.

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Binding precedents, and good sense, support the

conclusion that to "deprive" a person of their intangible

property interest in confidential information under section 1343,

either some articulable harm must befall the holder of the

information as a result of the defendant's activities, or some

gainful use must be intended by the person accessing the

information, whether or not this use is profitable in the

economic sense.7 Here, neither the taking of the IRS' right to

"exclusive use" of the confidential information, nor Czubinski's

gain from access to the information, can be shown absent evidence

of his "use" of the information. Accordingly, without evidence

that Czubinski used or intended to use the taxpayer information

(beyond mere browsing), an intent to deprive cannot be proven,

and, a fortiori, a scheme to defraud is not shown.

All of the cases cited by the government in support of

their contention that the confidentiality breached by Czubinski's

search in itself constitutes a deprivation of property in fact

support our holding today, for they all involve, at a minimum, a

finding of a further intended use of the confidential information

accessed by the defendants. The government's best support comes

from United States v. Seidlitz, 589 F.2d 152, 160 (4th Cir.

1978), in which a former employee of a computer systems firm

secretly accessed its files, but never was shown to have sold or

7 For example, had the government established that Czubinski
disclosed or intended to disclose taxpayer information, then the
deprivation or intended deprivation of property rights would have
been shown.

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used the data he accessed, and was nevertheless convicted of wire

fraud. The affirming Fourth Circuit held, however, that a jury

could have reasonably found that, at the time the defendant

raided a competitor's computer system, he intended to retrieve

information that would be helpful for his own start-up, competing

computer firm. In the instant case, Czubinski did indeed access

confidential information through fraudulent pretenses -- he

appeared to be performing his duties when in fact he used IRS

passwords to perform unauthorized searches. Nevertheless, it was

not proven that he intended to deprive the IRS of their property

interest through either disclosure or use of that information.

The resolution of the instant case is complex because

it is well-established that to be convicted of mail or wire

fraud, the defendant need not successfully carry out an intended

scheme to defraud. See, e.g., United States v. Serrano, 870 F.2d

1, 6 (1st Cir. 1989) (defendant need only participate in a scheme

to defraud with the intent to achieve its illicit objectives);

Seidlitz, 589 F.2d at 160 (where circumstantial evidence suffices

to prove intent to accomplish scheme to defraud, actual use of

confidential information need not be shown). The government does

not contend either that Czubinski actually created dossiers or

that he accomplished some other end through use of the

information. It need not do so. All that the government was

required to prove was the intent to follow through with a

deprivation of the IRS's property and the use or foreseeable use

of interstate wire transmissions pursuant to the accomplishment

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of the scheme to defraud. See, e.g., United States v. Silvano,

812 F.2d 754, 760 (1st Cir. 1987). In the case at bar, the

government failed to make even this showing.

The fatal flaw in the government's case is that it has

not shown beyond a reasonable doubt that Czubinski intended to

carry out a scheme to deprive the IRS of its property interest in

confidential information. Had there been sufficient proof that

Czubinski intended either to create dossiers for the sake of

advancing personal causes or to disseminate confidential

information to third parties, then his actions in searching files

could arguably be said to be a step in furtherance of a scheme to

deprive the IRS of its property interest in confidential

information. The government's case regarding Czubinski's intent

to make any use of the information he browsed rests on the

testimony of one witness at trial who stated that Czubinski once

remarked at a social gathering that he intended to build dossiers

on potential KKK informants.8 We must assume, on this appeal,

that Czubinski did indeed make such a comment. Nevertheless, the

fact that during the months following this remark -- that is,

during the period in which Czubinski made his unauthorized

searches -- he did not create dossiers (there was no evidence

that he created dossiers either during or after the period of his

unauthorized searches); given the fact that he did not even take

steps toward creating dossiers, such as recording or printing out

the information; given the fact that no other person testifying

8 Testimony of William J. Murray. See Background, supra.

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as to Czubinski's involvement in white supremacist organizations

had any knowledge of Czubinski's alleged intent to create

dossiers or use confidential information; and given the fact that

not a single piece of evidence suggests that Czubinski ever

shared taxpayer information with others, no rational jury could

have found beyond a reasonable doubt that, when Czubinski was

browsing taxpayer files, he was doing so in furtherance of a

scheme to use the information he browsed for private purposes, be

they nefarious or otherwise. In addition, there was no evidence

that Czubinski disclosed, or used to his advantage, any

information regarding political opponents or regarding the person

prosecuting his father.

Mere browsing of the records of people about whom one

might have a particular interest, although reprehensible, is not

enough to sustain a wire fraud conviction on a "deprivation of

intangible property" theory. Curiosity on the part of an IRS

officer may lead to dismissal, but curiosity alone will not

sustain a finding of participation in a felonious criminal scheme

to deprive the IRS of its property.

B. Honest Services Fraud (Section 1346)
B. Honest Services Fraud (Section 1346)

In McNally v. United States, 483 U.S. 350 (1987), the

Supreme Court held that the mail and wire fraud statutes do not

prohibit schemes to defraud individuals of their intangible, non-

property right to honest government services. Id. at 359-60.9

9 Before McNally, however, the fraud statutes had been "read as

a broad shield" by this and other circuits, applying, for
example, to cases of corruption on the ground that the defendant

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Congress responded to McNally in 1988 by enacting section 1346,

the honest services amendment, which provides:

For the purposes of this chapter, the
term "scheme or artifice to defraud"
includes a scheme or artifice to deprive
another of the intangible right of honest
services.

18 U.S.C. 1346 (effective Nov. 11, 1988). We have held, after

considering the relevant legislative history, that section 1346

effectively restores to the scope of the mail and wire fraud

statutes10 their pre-McNally applications to government

officials' schemes to defraud individuals of their intangible

right to honest services. See Grandmaison, 77 F.3d at 566

(collecting cases).11

We recently had the opportunity to discuss, at some

length, the proper application of the section 1346 honest

services amendment to the wrongful acts of public officials. See

Sawyer, 85 F.3d at 722-26. The discussion and holding in Sawyer

had used the mails in furtherance of a scheme to defraud the
public of its intangible right to honest services. See, e.g.,

Silvano, 812 F.2d 754 (1st Cir. 1987) (applying, pre-McNally,

mail fraud statute to local political corruption); see generally

United States v. Grandmaison, 77 F.3d 555, 565 (1st Cir. 1996)

(discussing change wrought by McNally).

10 Identical standards apply in determining the "scheme to
defraud" element under the mail and wire fraud statutes. United

States v. Boots, 80 F.3d 580, 586 n.11 (1st Cir. 1996) (citing

Carpenter, 484 U.S. at 25 n.6).

11 Finding insufficient evidence to convict, we do not reach the
issue of whether the honest services amendment raises vagueness
concerns. Cf. United States v. Waymer, 55 F.3d 564, 568-69 (11th

Cir. 1995) (rejecting facial vagueness and overbreadth challenge
to section 1346).

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directly guide our disposition of the instant appeal.12 First,

as a general matter, we noted in Sawyer that although the right

to honest services "eludes easy definition," honest services

convictions of public officials typically involve serious

corruption, such as embezzlement of public funds, bribery of

public officials, or the failure of public decision-makers to

disclose certain conflicts of interest. Id. at 724. Second, we

cautioned that "[t]he broad scope of the mail fraud statute,

however, does not encompass every instance of official misconduct

that results in the official's personal gain." Id. at 725.

Third, and most importantly, Sawyer holds that the government

must not merely indicate wrongdoing by a public official, but

must also demonstrate that the wrongdoing at issue is intended to

prevent or call into question the proper or impartial performance

of that public servant's official duties. Id. at 725 (citing

pre-McNally precedent to demonstrate that even where public

officials violated state laws, their actions were not found to

defraud citizens of their right to honest services, because the

officials did not actually fail to perform their official duties

properly). In other words, "although a public official might

engage in reprehensible misconduct related to an official

12 In Sawyer, we vacated and remanded for further factfinding

the mail and wire fraud conviction of a private lobbyist who was
found to have violated Massachusetts' gift and gratuity statutes
in the course of his lobbying activities. See 85 F.3d at 730-31.

The conviction was vacated because the violation of the gift
statute, in itself, was held insufficient to establish a scheme
to defraud the public of its intangible right to honest services.
See id.

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position, the conviction of that official cannot stand where the

conduct does not actually deprive the public of its right to her

honest services, and it is not shown to intend that result." Id.

Applying these principles to Czubinski's acts, it is

clear that his conviction cannot stand. First, this case falls

outside of the core of honest services fraud precedents.

Czubinski was not bribed or otherwise influenced in any public

decision-making capacity. Nor did he embezzle funds. He did not

receive, nor can it be found that he intended to receive, any

tangible benefit. His official duty was to respond to

informational requests from taxpayers regarding their returns, a

relatively straightforward task that simply does not raise the

specter of secretive, self-interested action, as does a

discretionary, decision-making role. Cf. United States v.

McNieve, 536 F.2d 1245, 1251 (8th Cir. 1976) (finding no mail

fraud violation where city employee accepted gratuities in

connection with non-discretionary duty).

Second, we believe that the cautionary language of

Sawyer is particularly appropriate here, given the evidence

amassed by the defendant at trial indicating that during his span

of employment at IRS, he received no indication from his employer

that this workplace violation -- the performance of unauthorized

searches -- would be punishable by anything more than

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dismissal.13 "To allow every transgression of state governmental

obligations to amount to mail fraud would effectively turn every

such violation into a federal felony; this cannot be

countenanced." Sawyer, 85 F.3d at 728. Here, the threat is one

of transforming governmental workplace violations into felonies.

We find no evidence that Congress intended to create what amounts

to a draconian personnel regulation. We hesitate to imply such

an unusual result in the absence of the clearest legislative

mandate.

These general considerations, although serious, are not

conclusive: they raise doubts as to the propriety of this

conviction that can be outweighed by sufficient evidence of a

scheme to defraud. The third principle identified in Sawyer,

instructing us as to the basic requirements of a scheme to

defraud in this context, settles any remaining doubts. The

conclusive consideration is that the government simply did not

prove that Czubinski deprived, or intended to deprive, the public

or his employer of their right to his honest services. Although

he clearly committed wrongdoing in searching confidential

information, there is no suggestion that he failed to carry out

his official tasks adequately, or intended to do so.

The government alleges that, in addition to defrauding

the public of his honest services, Czubinski has defrauded the

13 See Appendices to Czubinski's Motion to Dismiss (including

February 8, 1994 IRS memorandum to employees indicating that the
probable penalty for "unauthorized accessing" of taxpayer
information ranges from "Reprimand" to "Removal").

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IRS as well. The IRS is a public entity, rendering this

contention sufficiently answered by our holding above that

Czubinski did not defraud the public of his honest services.

Even if the IRS were a private employer, however, the pre-McNally

honest services convictions involving private fraud victims

indicate that there must be a breach of a fiduciary duty to an

employer that involves self-dealing of an order significantly

more serious than the misconduct at issue here. See, e.g.,

United States v. Lemire, 720 F.2d 1327, 1332-34 (D.C. Cir. 1983)

(employee took bribes and did not disclose that contractor was

overcharging); United States v. Seigel, 717 F.2d 9, 14 (2d Cir.

1983) (employees used corporate funds for non-corporate

purposes); United States v. Boffa, 688 F.2d 919, 931 (3d Cir.

1982) (union official bribed into accepting lower wages for union

members). Once again, the government has failed to prove that

Czubinski intended to use the IRS files he browsed for any

private purposes, and hence his actions, however reprehensible,

do not rise to the level of a scheme to defraud his employer of

his honest services.

II. The Computer Fraud Counts
II. The Computer Fraud Counts

Czubinski was convicted on all four of the computer

fraud counts on which he was indicted; these counts arise out of

unauthorized searches that also formed the basis of four of the

ten wire fraud counts in the indictment. Specifically, he was

convicted of violating 18 U.S.C. 1030(a)(4), a provision

enacted in the Computer Fraud and Abuse Act of 1986. Section

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1030(a)(4) applies to:

whoever . . . knowingly and with intent
to defraud, accesses a Federal interest
computer without authorization, or
exceeds authorized access, and by means
of such conduct furthers the intended
fraud and obtains anything of value,
unless the object of the fraud and the
thing obtained consists only of the use
of the computer.

We have never before addressed section 1030(a)(4). Czubinski

unquestionably exceeded authorized access to a Federal interest

computer.14 On appeal he argues that he did not obtain "anything

of value." We agree, finding that his searches of taxpayer

return information did not satisfy the statutory requirement that

he obtain "anything of value." The value of information is

relative to one's needs and objectives; here, the government had

to show that the information was valuable to Czubinski in light

of a fraudulent scheme. The government failed, however, to prove

that Czubinski intended anything more than to satisfy idle

curiosity.

The plain language of section 1030(a)(4) emphasizes

that more than mere unauthorized use is required: the "thing

obtained" may not merely be the unauthorized use. It is the

showing of some additional end -- to which the unauthorized

access is a means -- that is lacking here. The evidence did not

show that Czubinski's end was anything more than to satisfy his

14 "[T]he term 'exceeds authorized access' means to access a
computer with authorization and to use such access to obtain or
alter information in the computer that the accesser is not
entitled so to obtain or alter." 18 U.S.C. 1030(e)(6).

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curiosity by viewing information about friends, acquaintances,

and political rivals. No evidence suggests that he printed out,

recorded, or used the information he browsed. No rational jury

could conclude beyond a reasonable doubt that Czubinski intended

to use or disclose that information, and merely viewing

information cannot be deemed the same as obtaining something of

value for the purposes of this statute.15

The legislative history further supports our reading of

the term "anything of value." "In the game of statutory

interpretation, statutory language is the ultimate trump card,"

and the remarks of sponsors of legislation are authoritative only

to the extent that they are compatible with the plain language of

section 1030(a)(4). Rhode Island v. Narragansett Indian Tribe,

19 F.3d 685, 699 (1st Cir. 1994) (citing Grove City College v.

Bell, 465 U.S. 555, 567 (1984)). Here, a Senate co-sponsor's

comments suggest that Congress intended section 1030(a)(4) to

punish attempts to steal valuable data, and did not wish to

punish mere unauthorized access:

The acts of fraud we are addressing in
proposed section 1030(a)(4) are essentially
thefts in which someone uses a federal

15 The district court, in denying a motion to dismiss the
computer fraud counts in the indictment, found that the
indictment sufficiently alleged that the confidential taxpayer
information was itself a "thing of value" to Czubinski, given his
ends. The indictment, of course, alleged specific uses for the
information, such as creating dossiers on KKK members, that were
not proven at trial. In light of the trial evidence -- which, as
we have said, indicates that there was no recording, disclosure
or further use of the confidential information -- we find that
Czubinski did not obtain "anything of value" through his
unauthorized searches.

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interest computer to wrongly obtain something
of value from another. . . . Proposed section
1030(a)(4) is intended to reflect the
distinction between the theft of information,
a felony, and mere unauthorized access, a
misdemeanor.

132 Cong. Rec. 7128, 7129, 99th Cong., 2d. Sess. (1986). The

Senate Committee Report further underscores the fact that this

section should apply to those who steal information through

unauthorized access as part of an illegal scheme:

The Committee remains convinced that there
must be a clear distinction between computer
theft, punishable as a felony [under section
1030(a)(4)], and computer trespass,
punishable in the first instance as a
misdemeanor [under a different provision].
The element in the new paragraph (a)(4),
requiring a showing of an intent to defraud,
is meant to preserve that distinction, as is
the requirement that the property wrongfully
obtained via computer furthers the intended
fraud.

S. Rep. No. 132, 99th Cong., 2d Sess., reprinted in 1986

U.S.C.C.A.N. 2479. For the same reasons we deemed the trial

evidence could not support a finding that Czubinski deprived the

IRS of its property, see discussion of wire fraud under section

1343 supra, we find that Czubinski has not obtained valuable

information in furtherance of a fraudulent scheme for the

purposes of section 1030(a)(4).

CONCLUSION
CONCLUSION

We add a cautionary note. The broad language of the

mail and wire fraud statutes are both their blessing and their

curse. They can address new forms of serious crime that fail to

fall within more specific legislation. See United States v.

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Maze, 414 U.S. 395, 405-06 (1974) (observing that the mail fraud

statute serves "as a first line of defense" or "stopgap device"

to tackle new types of frauds before particularized legislation

is developed) (Burger, C.J., dissenting). On the other hand,

they might be used to prosecute kinds of behavior that, albeit

offensive to the morals or aesthetics of federal prosecutors,

cannot reasonably be expected by the instigators to form the

basis of a federal felony. The case at bar falls within the

latter category. Also discomforting is the prosecution's

insistence, before trial, on the admission of inflammatory

evidence regarding the defendant's membership in white

supremacist groups purportedly as a means to prove a scheme to

defraud, when, on appeal, it argues that unauthorized access in

itself is a sufficient ground for conviction on all counts.

Finally, we caution that the wire fraud statute must not serve as

a vehicle for prosecuting only those citizens whose views run

against the tide, no matter how incorrect or uncivilized such

views are.

For the reasons stated in this opinion, we hold the

district court's denial of defendant's motion for judgment of

acquittal on counts 1, 2, and 4 through 14, to be in error. The

defendant's conviction is thus reversed on all counts.
reversed

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