United States v. Perry, Antoine

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 13, 2006 Decided March 16, 2007

No. 05-3119

UNITED STATES OF AMERICA,
APPELLEE

v.

ANTOINE MICHAEL PERRY,
APPELLANT

Appeal from the United States District Court
for the District of Columbia
(No. 03cr00329-01)

Richard K. Gilbert, appointed by the court, argued the cause
for the appellant.
John P. Gidez, Assistant United States Attorney, argued the
cause for the appellee. Kenneth L. Wainstein, United States
Attorney at the time the brief was filed, and Roy W. McLeese,
III, Anthony M. Alexis, and David B. Goodhand, Assistant
United States Attorneys were on brief.
Before: HENDERSON, RANDOLPH and GRIFFITH, Circuit
Judges.
Opinion for the court filed by Circuit Judge HENDERSON.
 2

KAREN LECRAFT HENDERSON, Circuit Judge: The appellant,
Antoine Perry, was convicted of unlawful accessing a computer
resulting in damage in violation of 18 U.S.C.
§ 1030(a)(5)(A)(i).1 He appeals, asserting that the district court
committed three errors: (1) it ordered Perry’s wife and eight-
year-old son removed from the courtroom during Perry’s trial;
(2) it sua sponte instructed the jury to disregard Perry’s wife’s
failure to testify; and (3) it failed to read the complete jury
instructions to the jury. For the reasons set forth below, we
reject Perry’s claims and affirm his conviction.
I.
Lockheed-Martin (Lockheed) provides computer support
services to the Office of Site Remediation Enforcement (OSRE),
a division of the Environmental Protection Agency (EPA).
OSRE links its computers through a local area network (LAN)
that connects its employees to its file server. The LAN allows
OSRE employees to create and edit their documents, access
databases and send e-mails to co-workers.
In September 1999, Perry was a computer network systems
administrator for Norell, a subcontractor of Lockheed. In that
capacity, Perry helped to maintain the connection between the
file server and the LAN and was given remote access to the
network, allowing him to remotely control server operations.
On September 10, 1999, Lockheed offered Perry a job as a
network administrator. Because Perry failed Lockheed’s
mandatory employee drug test, however, Lockheed rescinded its
offer on Friday, September 24, 1999, and also informed Perry
that he could no longer work on the EPA contract. Lockheed’s

1
The crime is committed by anyone who: “knowingly causes the
transmission of a program, information, code, or command, and as a
result of such conduct, intentionally causes damage without
authorization, to a protected computer.” 18 U.S.C. § 1030(a)(5)(A)(i).
 3

action was effective immediately and Lockheed security
escorted him out of Lockheed’s main office building. One
witness described him as “angry.” Tr. I, 2/3/04 at 103.
On the following Monday, September 27, 1999, OSRE
employees arrived at work and discovered that they could not
log on to the file server. After investigating, a LAN systems
manager determined that someone using the fictitious username
“Mburton” had disabled the server via remote access, changed
passwords and deleted printers from the network system.2 The
systems manager concluded a security breach had occurred and
he then shut down the server, replaced its hardrives and reloaded
its software. As a result of the server problems and
maintenance, OSRE employees could not access work-related
documents and e-mails for more than one day.
A Lockheed network design engineer eventually traced the
remote connection used to disable the server to Perry’s
Maryland home telephone number. On October 13, 1999,
agents from the EPA Inspector General’s Office and the FBI
searched Perry’s house and confiscated, inter alia, a desktop
computer, a laptop computer, several hard drives and a modem.
The FBI also seized a list of the printers and print services
within the EPA’s computer system. On July 30, 2003, Perry
was charged in a one-count indictment with unauthorized access
to a computer causing damage.
Perry’s trial began on February 2, 2003, with jury selection.
The next day, inclement weather resulted in school closings
throughout the District and Perry’s wife brought their eight-
year-old son to court. Before opening arguments began and out
of the jury’s presence, the trial judge suggested that Perry’s wife
remove the child to prevent him from witnessing his father’s

2
OSRE employed no one named “M. Burton” and gave no one
permission to create an “Mburton” account.
 4

trial. The judge stated, “Of course [Perry’s son] and his mother
have every right to be here . . . [but] I’m always concerned about
the effect of these types of proceedings on children, especially
children of tender years . . . I’m not ordering you to leave.” Tr.
I, 2/3/04 at 17-19. The judge then declared a recess to “give
everyone a chance to relocate.” Id. at 20. After the recess,
however, the judge declared, “It was reported to me over the
recess that Mr. Perry instructed his wife to keep the child in
court. There’s no doubt in this Court’s mind that such an effort
on his part is made solely to evoke sympathy on the part of the
jurors.” Id. The judge then ordered Perry’s wife to remove the
boy from the courtroom. Perry replied, “Your Honor, that’s my
wife. That’s my support system,” to which the judge responded,
“Your support system can return without your son, sir.” Id. at
21. After the judge repeated his belief that Perry sought to keep
his son in court only to evoke juror sympathy, Perry stated,
“That was not the reason, Your Honor.” Id. Perry’s wife then
left the courtroom with the child.
The trial proceeded with the Government presenting
evidence to establish that Perry disabled OSRE’s file server
under the username “Mburton” by informing the jury, inter alia,
that Perry’s wife’s name is “Tonya Marie Burton Perry.”3 After
closing arguments, the judge asked counsel from both sides if
they wanted him to instruct the jury to refrain from speculating
regarding Perry’s wife’s failure to testify. The judge declared,
“[Perry’s wife’s] name has been mentioned prominently in this
case. The last thing in the world I want . . . is for there to be a
verdict followed by a questioning session that reveals that . . .
[the jury was] troubled because her name was used and she was
here and she didn’t testify.” Tr. II, 2/4/04 at 81. Perry’s counsel

3
During the search of Perry’s house, the FBI seized a certificate
awarded to “Tonya Burton” in recognition of her completion of jury
duty. Tr. II, 2/3/04 at 118.
 5

objected, arguing that “the mere mention of that instruction may
actually put th[e] thought [that Perry’s wife was involved in the
crime] in [the jurors’] minds.” Id. at 82. He further argued that
he “[did not] see a need to raise a possible issue with respect to
[Perry’s wife],” id. at 85, because Perry’s defense was “technical
and forensic, as opposed to personal,” id. at 90. Nevertheless,
the judge instructed the jury, “You are instructed as a matter of
law not to speculate as to any reason why Mr. Perry’s wife did
not testify in this case. That’s not an issue in this case.” Id. at
101.
Before charging the jury on the elements of the offense, the
judge declared, “I’m just going to focus on the elements of the
offense, Counsel. I’m going to send the entire instruction back.
. . . There are definitions. Loss is defined, computer’s defined.
There’s a statute defining the offense. I’m not going to read that
to you. You can read it . . . I want to focus on the elements.” Id.
at 105. Neither party objected to his decision not to read aloud
to the jury the definitions included in the written charge. The
jury convicted Perry and the judge sentenced him to four
months’ incarceration and three years’ supervised release. He
also ordered Perry to pay restitution in the amount $5,000 and
a special assessment of $100. Perry filed a timely notice of
appeal on July 15, 2005.
II.
We address separately Perry’s Sixth Amendment claim and
his two challenges to the jury instructions.
A. Sixth Amendment Claim
Perry argues that the district court violated the Sixth
Amendment to the United States Constitution when it removed
his wife and child from the courtroom. Specifically, he contends
that the reasons given by the court for its action—to protect the
child’s welfare and to prevent Perry from using the child to
evoke juror sympathy—did not justify denying him his right to
 6

a public trial. In addition, Perry maintains that he objected at
trial to the removal and thus is entitled to harmless error review.
See United States v. Perkins, 161 F.3d 66, 72 (D.C. Cir. 1998)
(citing Fed. R. Crim. P. 52(a) (“Any error, defect, irregularity,
or variance that does not affect substantial rights must be
disregarded.”)). The Government responds that the district court
did not err and that we should review his claim under the plain
error standard because he failed to object at trial. See United
States v. Spriggs, 102 F.3d 1245, 1260 (D.C. Cir. 1996) (Per
Curiam) (citing Fed. R. Crim. P. 52(b) (“A plain error that
affects substantial rights may be considered even though it was
not brought to the court’s attention.”)). We need not decide the
correct standard of review, however, because the district court
committed no error at all.
The Sixth Amendment provides in part: “In all criminal
prosecutions, the accused shall enjoy the right to a speedy and
public trial . . . .” U.S. Const. amend. VI. As the Supreme
Court explained in Waller v. Georgia, the right to a public trial:
(1) “ensure[s] that judge and prosecutor carry out their duties
responsibly,” (2) “encourages witnesses to come forward” and
(3) “discourages perjury.” 467 U.S. 39, 46 (1984). Indeed, “the
guarantee has always been recognized as a safeguard against any
attempt to employ our courts as instruments of persecution.” In
re Oliver, 333 U.S. 257, 270 (1948).
Both Perry and the Government analyze the removal of
Perry’s child from the courtroom under the four-prong test
developed in Waller. See Appellant’s Br. at 32-36; Appellee’s
Br. at 17-23. In Waller, the trial court had “ordered [a]
suppression hearing closed to all persons other than witnesses,
court personnel, the parties, and the lawyers.” 467 U.S. at 42.
In reversing that decision, the Supreme Court held that
notwithstanding the fact that a defendant has a Sixth
Amendment right to a public suppression hearing, the right
“may give way in certain cases to other rights or interests.” Id.
 7

at 45. Ultimately, the complete closing of a criminal proceeding
is constitutional only if:
[1] the party seeking to close the hearing . . . advance[s]
an overriding interest that is likely to be prejudiced, [2]
the closure [is] no broader than necessary to protect that
interest, [3] the trial court . . . consider[s] reasonable
alternatives to closing the proceedings, and [4] it . . .
make[s] findings adequate to support the closure.
Id. at 48. Because the trial court’s complete closing of the
suppression hearing was “plainly . . . unjustified,” the Court
remanded for a new hearing.4 Id. at 48, 50.
The Waller test applies, however, only if closing the
courtroom implicates the defendant’s Sixth Amendment right.
United States v. Ivester, 316 F.3d 955, 958 (9th Cir. 2003)
(“Before applying the Waller test to determine whether the

4
While we have not addressed the issue, the Government points
out that several circuits require that the prosecution advance only a
“substantial” interest—not an “overriding” interest—to support a
“partial” closing because “partial closures do not implicate the same
fairness and secrecy concerns as total closures.” United States v.
Osborne, 68 F.3d 94, 99 (5th Cir. 1995) (exclusion of co-defendant’s
sister and “new spectators” during testimony of one witness upheld);
see also United States v. Farmer, 32 F.3d 369, 371-72 (8th Cir. 1994)
(exclusion of all spectators except victim’s family while victim
testified upheld); Woods v. Kuhlmann, 977 F.2d 74, 76 (2d Cir. 1992)
(exclusion of defendant’s common law wife, his common law wife’s
sister and his cousin during one witness’s testimony upheld); Nieto v.
Sullivan, 879 F.2d 743, 753 (10th Cir. 1989) (exclusion of defendant’s
sisters and other unspecified relatives during one witness’s testimony
upheld); United States v. Sherlock, 962 F.2d 1349, 1356-57 (9th Cir.
1989) (exclusion of defendants’ unspecified family members during
victim’s testimony upheld); Douglas v. Wainwright, 739 F.2d 531,
533 (11th Cir. 1984) (exclusion of members of general public during
one witness’s testimony upheld).
 8

district court violated [the defendant’s] Sixth Amendment right
to a public trial, we must first determine whether the right
attaches . . . .”) (citation omitted). While “[d]etermining with
any precision the contours of th[e] right [to a public trial] is a
difficult task,” Braun v. Powell, 227 F.3d 908, 917 (7th Cir.
2000), the Supreme Court has suggested, albeit in dicta, that the
right to a public trial entitles a criminal defendant “at the very
least . . . to have his friends, relatives and counsel present, no
matter with what offense he may be charged.” In re Oliver, 333
U.S. at 272; see also Braun, 227 F.3d at 917 (describing
“Supreme Court’s requirement” that “friend[s] or relative[s] of
the defendant” be allowed to attend trial); Vidal v. Williams, 31
F.3d 67, 69 (2d Cir. 1994) (“[T]he Supreme Court has
specifically noted a special concern for assuring the attendance
of family members of the accused.”). Nevertheless, some
circuits “have recognized that there are certain instances in
which [an] exclusion cannot be characterized properly as
implicating the constitutional guarantee.” Braun, 227 F.3d at
918; see also id. at 919 (exclusion of member of jury venire not
chosen to sit as juror did not implicate Sixth Amendment); see
also Carson v. Fischer, 421 F.3d 83, 93 (2d Cir. 2005)
(exclusion of defendant’s ex-mother-in-law did not implicate
Sixth Amendment); Ivester, 316 F.3d at 960 (exclusion of
“spectators during the brief mid-trial questioning of the jurors to
determine if they were concerned for their safety” did not
implicate Sixth Amendment); Peterson v. Williams, 85 F.3d 39
(2d Cir. 1996) (inadvertent courtroom closing during
defendant’s brief testimony did not implicate Sixth
Amendment). That is, even a problematic courtroom closing
can be “too trivial to amount to a violation of the [Sixth]
Amendment.” Peterson, 85 F.3d at 42. The Second Circuit
explained:
A triviality standard, properly understood, does not
dismiss a defendant’s claim on the grounds that the
defendant was guilty anyway or that he did not suffer
 9

“prejudice” or “specific injury.” It is, in other words,
very different from a harmless error inquiry. It looks,
rather, to whether the actions of the court and the effect
that they had on the conduct of the trial deprived the
defendant—whether otherwise innocent or guilty—of
the protections conferred by the Sixth Amendment.
Id. A courtroom closing is “trivial” if it does not implicate the
“values served by the Sixth Amendment” as set forth in Waller.
Id. (citing Waller, 467 U.S. at 46-47); see also Braun, 227 F.3d
at 918-19. “[E]ven the exclusion of a family member or friend
may, in rare circumstances . . . , not implicate the Sixth
Amendment public trial guarantee.” Carson, 421 F.3d at 94.
Using the triviality standard, we believe the district court’s
action did not violate the Sixth Amendment. Perry’s son was
the only person excluded from the proceedings5 and an eight-
year-old’s presence in the courtroom would neither “ensure that
judge and prosecutor carry out their duties responsibly” nor
“discourage[] perjury.” Waller, 467 U.S. at 46. Nor would the
child’s attendance “encourage [a] witness[] to come forward.”

5
Although the judge ordered Perry’s wife to remove the child, he
did not exclude her from the proceedings. Indeed, the judge twice
informed Perry that she could return without their son. Tr. I, 2/3/04
at 21-22. While Perry appears to argue that the judge effectively
excluded his wife because the school cancellation compelled her to
stay with their child, see Appellant’s Br. at 31, the record does not
indicate that Perry so advised the court or that his wife was unable to
make alternative arrangements. Moreover, the record indicates that
the trial lasted from February 3rd (the day Perry’s son was removed)
until February 5th when the verdict was returned. See Tr. 2/3/04-Tr.
2/5/04. Perry suggests in his brief that his wife missed only the first
day of trial. See Appellant’s Br. at 30 (“[T]he fact remain [sic] in this
case that Appellant’s wife and child were excluded for a full day of
testimony including essential government witnesses.” (emphasis
added)).
 10

Id. Perry’s trial remained open to the public—and specifically
to his wife—throughout.
B. Jury Instruction Regarding Wife’s Failure to Testify
Perry next argues that the district court erred by instructing
the jury “not to speculate as to any reason why Mr. Perry’s wife
did not testify in this case.” Tr. II, 2/4/04 at 101. Because Perry
objected to the instruction at trial, we review his claim under the
harmless error standard. Fed. R. Crim. P. 52(a); see also United
States v. Logan, 998 F.2d 1025, 1030 (D.C. Cir. 1993) (“To
preserve an objection to jury instructions, a defendant must raise
the specific objection before the trial court.” (citing United
States v. Pryce, 938 F.2d 1343, 1350 (D.C. Cir. 1991))). Under
that standard, the Government bears the burden of proving an
error is “harmless”—that is, not “prejudicial.” See United States
v. Olano, 507 U.S. 725, 734 (1993).
Although there appears to be little or no precedent
specifically addressing a trial judge’s decision to issue sua
sponte a cautionary jury instruction to disregard the failure of an
individual—other than the defendant—to testify, the Supreme
Court has held that a similar sua sponte instruction to disregard
a defendant’s failure to testify over the defendant’s objection
does not violate the privilege against compulsory self-
incrimination. Lakeside v. Oregon, 435 U.S. 333, 340-41
(1978). In so holding, the Court rejected the argument that such
instruction would “encourage the jury to draw adverse
inferences from a defendant’s silence,” stating that the argument
rests on the “speculative assumptions” that “the jurors have not
noticed that the defendant did not testify and will not, therefore,
draw adverse inferences on their own” and that they “will totally
disregard the instruction.” Id. at 339-40. The Court concluded
that, although “[i]t may be wise for a trial judge not to give such
a cautionary instruction over a defendant’s objection,” the
instruction does not violate the Fifth Amendment to the
 11

Constitution.6 Id. at 340-41; see also United States v. Moss, 756
F.2d 329, 334-35 (4th Cir. 1985) (affirming district court’s
decision to sua sponte instruct jury that “[t]he weight of the
evidence is not necessarily to be determined by the number of
witnesses testifying” over defendant’s objection after defendant
offered “no witnesses at trial”).
While a cautionary jury instruction regarding a potential
witness’s failure to testify does not implicate the Fifth
Amendment issue addressed in Lakeside v. Oregon, we agree
with the Supreme Court’s suggestion that a trial judge should
refrain from sua sponte instructing the jury, as was done here,
over the defendant’s objection. See Lakeside, 435 U.S. at 340-
41; see also Moss, 756 F.2d at 335. Defense counsel should
have considerable latitude in weighing the effect of such an
instruction, cf. Strickland v. Washington, 466 U.S. 668, 688
(1984) (“Counsel’s function is to assist the defendant . . . [and]
[c]ounsel also has a duty to bring to bear such skill and
knowledge as will render the trial a reliable adversarial testing
process.”), and, once he objects, the trial judge should carefully
consider the objection.
Nonetheless, we are confident that Perry suffered no
prejudice. Indeed, we would be speculating to conclude either
that the instruction caused the jury to draw inferences adverse to
Perry that it would not otherwise have drawn or that the jury did
not follow the instruction. Cf. Lakeside, 435 U.S. at 340
(discussing instruction regarding defendant’s failure to testify).
Moreover, the judge emphasized to the jury that the reason for

6
The Court also rejected the argument that the instruction violated
the defendant’s Sixth Amendment right to counsel by “interfering with
counsel’s trial strategy” because the judge gave a lawful instruction
and “[i]t is the judge, not counsel, who has the ultimate responsibility
for the conduct of a fair and lawful trial.” Lakeside, 435 U.S. at 341-
42.
 12

Perry’s wife’s silence was not at issue in the case. Tr. II, 2/4/04
at 101 (“That’s not an issue in this case.”); cf. Moss, 756 F.2d at
335 (“[T]he possible prejudice resulting from the number of
witnesses instruction was lessened because the district court
informed the jury in the same instruction that the government’s
large number of witnesses need not be considered ‘persuasive at
all.’”). Accordingly, the district court’s instruction constitutes,
at most, harmless error.
C. Failure to Read Complete Jury Instructions
Finally, Perry argues that the district court erred by failing
to read aloud the complete jury instructions. Because Perry did
not object at trial, we review his claim under the plain error
standard. See Fed. R. Crim. P. 52(b). Under that standard, we
will remedy a trial court error only if there is “(1) ‘error,’ (2)
that is ‘plain,’ and (3) that ‘affect[s] substantial rights[]’ . . .
[and] (4) the error ‘seriously affect[s] the fairness, integrity, or
public reputation of judicial proceedings.’” Johnson v. United
States, 520 U.S. 461, 466-67 (1997) (quoting Olano, 507 U.S.
at 732). An error “affec[ts] substantial rights” if it is
“prejudicial” or “affected the outcome of the district court
proceedings.” Olano, 507 U.S. at 734.
While we have not addressed the issue, both the Third
Circuit and the Ninth Circuit have held that “[i]t is . . . essential
that all instructions to the jury be given by the trial judge orally
in the presence of counsel and the defendant.” United States v.
Noble, 155 F.2d 315, 318 (3d Cir. 1946); accord Guam v. Marquez,
963 F.2d 1311, 1314-15 (9th Cir. 1992). In Noble, the court
explained its reasoning:
[T]he trial judge would not have fulfilled his duty . . .
merely by sending the information out with the jury to
read if they chose to do so . . . . For not only are counsel
and the defendant entitled to hear the instructions in
order that they may . . . object to them and secure their
 13

prompt correction by the trial judge, but it is equally
important to make as certain as may be that each
member of the jury has actually received the
instructions.
Noble, 155 F.2d at 318; see also Marquez, 963 F.2d at 1314-15
(trial judge must read jury instructions aloud to jury for “reasons
articulated . . . in Noble”).
We agree with our sister circuits that a trial judge must read
aloud jury instructions in their entirety. As the Ninth Circuit
noted, the lack of case law on the subject most likely results
from the fact that “judges and litigators have always assumed
that jury instructions must be oral.” Marquez, 963 F.2d at 1314.
Accordingly, the district court erred in failing to read to the jury
the definitions of “computer,” “loss” and “individual.”7

7
Contrary to the Government’s argument, Appellee’s Br. at 30-31,
the words do not constitute “words of general use,” United States v.
Garza-Juarez, 992 F.2d 896, 910 (9th Cir. 1993) (“A jury charge that
does not include definitions of words of general use does not
constitute plain error.”); see also Perkins, 161 F.3d at 70 (“Although
a trial court must define words and phrases that have technical or
unconventional meanings, it is not required to define words which are
in common use, and are such as are readily comprehended by persons
of ordinary intelligence, where the words are applied in the judge’s
instructions in their conventional sense.” (internal quotation omitted)).
Both “computer” and “loss” have specific meanings set forth in the
statute itself, see 18 U.S.C. § 1030(e)(1), (e)(11), the parties agreed
that “loss” also “includes any natural and foreseeable result of any
damage that . . . occurred,” see Joint Proposed Statement of the Case,
Voir Dire, Jury Instructions, and Verdict Form 12 (Jan. 29, 2004)
(Jury Instructions), reprinted in Appellant’s App. at 32 (citing United
States v. Middleton, 231 F.3d 1207, 1213 (9th Cir. 2000)), and the
parties agreed on a definition of “individual” derived from Middleton,
231 F.3d at 1212, see Jury Instructions, supra, at 32.
 14

Perry has failed to demonstrate, however, that the judge’s
error “affected the outcome of the district court proceedings.”8
Olano, 507 U.S. at 734. In addition to the general charge
relating to burden of proof, credibility of witnesses and the like,
see Tr. II, 2/4/04 at 94, 97-98, the judge read to the jurors the
portion of the charge explaining the essential elements of the
charged offense,9 see id. at 105-06, and failed to read only the
definitions of three words referenced in the elements. There is
little chance that the jurors failed to “actually receive[],” Noble,
155 F.2d at 318, the definitions because the judge orally
instructed them to read the definitions in the written charge they
had with them in the jury room, Tr. II, 2/4/04 at 105 (“There are
definitions. Loss is defined, computer’s defined. There’s a
statute defining the offense. I’m not going to read that to you.

8
It is also not clear that the district court’s error was “plain.” An
error is “plain” if it is “clear” or “obvious.” Olano, 507 U.S. at 734.
We have declared that “absent precedent from either the Supreme
Court or this court . . . , [an] asserted error . . . falls far short of plain
error.” United States v. Vizcaino, 202 F.3d 345, 348 (D.C. Cir. 2000).
Nonetheless, “[s]ome legal norms are absolutely clear (for example,
because of the clarity of a statutory provision or court rule); in such
cases, a trial court’s failure to follow a clear legal norm may constitute
plain error, without regard to whether the applicable statute or rule
previously had been the subject of judicial construction.” United
States v. Merlos, 8 F.3d 48, 51 (D.C. Cir. 1993).
9
“(a) Whoever . . . (5)(A)(i) knowingly causes the transmission of
a program, information, code, or command, and as a result of such
conduct, intentionally causes damage without authorization, to a
protected computer . . . and (B) by conduct described in clause (i), . .
. caused . . . (i) loss to 1 or more persons during any 1-year period . .
. aggregating at least $5,000 in value . . . .” 18 U.S.C. § 1030(a)(5)
(emphases added). The “Elements of the Offense” section of the
charge uses “individuals” rather than “persons” pursuant to the parties’
agreement. Jury Instructions, supra n.7, at 31.
 15

You can read it.”). Even if the jurors did not read the
definitions, “computer,” “loss” and “individual” are simple
terms and the jury instruction definitions differ immaterially
from their dictionary meanings.10 We conclude the district
court did not plainly err in failing to read aloud the definitions
of “computer,” “loss” and “individual.”

10
Compare 18 U.S.C. § 1030(e)(1) (“computer” is “an electronic,
magnetic, optical, electrochemical, or other high speed data processing
device performing logical, arithmetic, or storage functions, and
includes any data storage facility or communications facility directly
related to or operating in conjunction with such device, but such term
does not include an automated typewriter or typesetter, a portable hand
held calculator, or other similar device”) with Webster’s Third New
International Dictionary 468 (1993) (Webster’s) (“computer” is “a
programmable electronic device that can store, retrieve, and process
data”); compare Jury Instructions, supra n.7, at 32 (“loss” is “any
reasonable cost to any victim, including the cost of responding to an
offense, conducting a damage assessment, and restoring the data,
program, system, or information to its condition prior to the offense,
and any revenue lost, cost incurred, or other consequential damages
incurred because of interruption of service,” 18 U.S.C. § 1030(e)(11),
and “includes any natural and foreseeable result of any damage that .
. . occurred”) with Webster’s, supra, at 1338 (“loss” is “an amount that
is lost”). The parties agreed that “individuals” include “both natural
persons and governmental agencies.” Jury Instructions, supra n.6, at
32. Although that definition is broader than the dictionary definition
of “person,” see Webster’s, supra, at 1686 (“person” is “an individual
human being”), both “individual” and “person” are often defined more
broadly in statutes. See Clinton v. City of New York, 524 U.S. 417,
428 & n.13 (1998) (in Line Item Veto Act, 2 U.S.C. § 692(a)(1)
(1994), “individual” “is synonymous with the word ‘person’” and
“‘person’ often has a broader meaning in the law” (citing 1 U.S.C. §
1 (“person” includes “corporations, companies, associations, firms,
partnerships, societies, and joint stock companies, as well as
individuals”))).
 16

For the foregoing reasons, the judgment of the district
court is affirmed.11
So ordered.

11
To the extent Perry raised additional claims in his pro se brief,
we find them all without merit.