United States v. Martin

United States Court of Appeals
For the First Circuit
____________________

No. 00-1039

UNITED STATES,

Appellee,

v.

STEPHEN R. MARTIN,

Defendant, Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. D. Brock Hornby, U.S. District Judge]

____________________

Before

Torruella, Chief Judge,

Selya, Circuit Judge,

and Casellas,* District Judge.

_____________________

William Gray Schaffer, by appointment of the Court, with whom
Curtis Thaxter Stevens Broder & Micoleau was on brief, for appellant.
F. Mark Terison, Senior Litigation Counsel, with whom Jay P.
McCloskey, United States Attorney, was on brief, for appellee.

____________________

* Of the District of Puerto Rico, sitting by designation.
 September 28, 2000
____________________

-2-
 TORRUELLA, Chief Judge. On September 16, 1998, a grand jury

returned a indictment charging Dr. Stephen R. Martin and Caryn L. Camp

with ten counts of wire fraud, two counts of mail fraud, one count of

conspiracy to steal trade secrets, one count of conspiracy to transport

stolen goods, and one count of interstate transportation of stolen

goods. Camp agreed to testify against Martin as part of a plea

agreement. Martin proceeded to trial, where a jury found him not

guilty on six counts of wire fraud (counts 1-6) and of interstate

transportation of stolen goods (count 15). The jury found Martin

guilty on the remaining counts of wire fraud (counts 7-10), mail fraud

(counts 11-12), conspiracy to steal trade secrets (count 13), and

conspiracy to transport stolen property in interstate commerce (count

14). This appeal, challenging the sufficiency of the evidence for

conviction, followed.

For the reasons stated below, we affirm.

BACKGROUND

This case arises out of an electronic mail "pen-pal"

relationship between a dissatisfied Maine chemist, Caryn Camp, and a

California scientist, Dr. Stephen Martin.

I. Events Prior to May 1, 1998

A. Camp's Employment at IDEXX

Camp first began work at IDEXX, Inc. ("IDEXX"), a

manufacturer of veterinary products headquartered in Portland, Maine,

-3-
in May of 1995. Camp's responsibilities as an IDEXX chemist included

mixing chemicals for diagnostic test kits for both pets and livestock.

At the time of her employment, she signed non-disclosure and non-

competition agreements, promising in part not to "disclose to others,

or use for [her] own benefit or the benefit of others, any of the

Developments or any confidential, proprietary or secret information

owned, possessed or used by [IDEXX] or its customers or contractors."

The proprietary information included, but was not limited to, "trade

secrets, processes, data, know-how, marketing plans, forecasts,

unpublished financial statements, budgets, licenses, prices, costs, and

employee, customer and supplier lists." Camp also signed the IDEXX

policy on ethics and business conduct, which prohibited employees from

revealing "proprietary knowledge or data" without prior authorization.

B. Martin's Communication with IDEXX

In May 1997, Martin, as CEO of Wyoming DNA Vaccine ("WDV"),

contacted IDEXX with a proposal involving research into human

immunodeficiency virus (HIV) and feline immunodeficiency virus (FIV).

Although IDEXX ultimately rejected Martin's proposal, he signed a

confidentiality agreement during his conversations with IDEXX.

C. Camp's Initial Contact with Martin

By early 1998, Camp was dissatisfied and bored with her job.

In January 1998, she began researching other potential job

opportunities. She found the Internet web site for WDV and sent an

-4-
electronic mail message with an attached resumé. Martin responded

immediately via electronic mail, praising Camp's credentials and

touting the beauty of Cody, Wyoming (the future site of WDV). Martin

also noted the existence of the WDV-IDEXX confidentiality agreement and

the fact that WDV had chosen to "develop [its] own program . . . with

respect to veterinary diagnostics." After receiving Martin's response,

Camp sent Martin a letter providing more detail about her

qualifications.

Between January and March of 1998, Martin and Camp continued

their correspondence. Based partly on Martin's encouragement and

partly on her own interests, Camp contacted the Director of Regulatory

Affairs at IDEXX and obtained permission to "volunteer [her] free time"

to learn that end of the business. Martin indicated that despite

Camp's preference for laboratory work, she would be more useful to WDV

for her regulatory experience and knowledge. Martin briefed Camp on

his own work at WDV, while Camp continued to update Martin on her

professional success, in particular her promotion to a technical

position in IDEXX's Livestock/Poultry unit.

Camp and Martin's early correspondence established several

themes that would permeate their e-mails: contained within the small

talk was on-going discussion of Camp's future employment with Martin's

company, as well as a willingness by Camp to relay IDEXX information

and gossip to Martin. Camp described her promotion as preparation

-5-
"for making a strong contribution to the success of WDV" within four to

six months. Her February 27 letter contained information regarding a

manual that "Idexx . . . [is] not exactly supposed to have." And

throughout this period, Camp's correspondence included light-hearted

remarks about the weather, life in Maine, and a potential future in

Wyoming.

D. "Pen-Pals"

Camp and Martin's correspondence became more and more

frequent during March and April of 1998. Camp continued to apprise

Martin of her problems with IDEXX management, the changes associated

with her new position in technical support, and her interest in new

employment, both at WDV and elsewhere. At times she included

information about IDEXX's internal strategic weaknesses and customer

complaints. Camp noted in an April 12 e-mail that the information she

had transmitted was to some extent confidential. Martin reciprocated

the information exchange: he told Camp about conflicts within WDV that

ultimately resulted in his formation of a separate company called

"Maverck"; he also relayed "confidential" WDV information. Martin

continued to discuss Camp's future, noting that she could "have a job

with either [WDV or Maverck]," that he thought she "belong[ed] in

Tahoe/Reno," and that she might "become CEO [her]self one day."

As the two corresponded more frequently, their communications

became more personal. Camp began to refer to Martin as "Steve." They

-6-
discussed their families and social lives, and even shared the messages

with family members. As their relationship grew more personal, both

Camp and Martin, but particularly Martin, spoke jokingly of the "spy"

aspect of the correspondence. For example, Martin referred to Camp's

gossip as "IDEXX Files" and described the events at WDV as a "palace

coup." Martin also continued to praise Camp's "aggressiveness" and

exhorted her to work only in her own interest and to continue to

accumulate relevant knowledge.

On April 14, Martin indicated that he "had much to tell"

Camp, but that he wanted her to sign a confidentiality agreement first.

Camp considered signing the agreement immediately, but ultimately

postponed signing because of potential ethical concerns, including

potential competition between WDV and IDEXX.1

On April 22, Camp sent Martin an e-mail discussing the

poultry and livestock industries, noting problems IDEXX customers had

been having with particular diagnostic kits, and mentioning that

customers "loved" the IDEXX free software program "x-Chek." Camp

continued to discuss IDEXX's poor customer service approach in her May

1 "travelogue," written during a business trip to the Midwest.

1 In an April 19 e-mail message, Camp wrote: "I'm not certain of how
comfortable I am with signing the agreement as long as I am working for
another company - particularly a company which is or could be a
potential competitor, nor I am I [sic] comfortable with you sharing
with me anything which you feel needs to be covered by this agreement."

-7-
Throughout her "travelogue," Camp repeatedly expressed her happiness in

being away from IDEXX and her willingness to move on to new employment.

II. Events Between May 1, 1998 and July 18, 1998

The government's first six counts of wire fraud, on which

Martin was acquitted, stem from correspondence occurring prior to July

18, 1998. One count of mail fraud, on which Martin was convicted, also

stems from this period.

A. Martin's Initial Requests

On May 1, in response to Camp's lengthy e-mail detailing her

trip, Martin made his first explicit request for information, asking

for "any info. . . . on the HOT topics in veterinary diagnostics."

Martin renewed his request in a May 3 e-mail in which he asked a number

of questions about IDEXX prices, test composition, and test use. In a

subsequent message, Martin outlined his ability to avoid patent

infringement with IDEXX and noted that "IDEXX is going to be in trouble

very soon." On May 3, Camp responded with answers to most of Martin's

questions. Attached was a letter detailing problems with a particular

IDEXX product. In reference to a previous discussion about flying

planes, Martin began to refer to Camp as "Ace," a moniker which would

become "Agent Ace" as their "spy" business heated up.

B. Camp's Responses

On May 4, Camp wrote concerning IDEXX's legal problems. She

also included "lots & lots of goodies for your next rainy day,"

-8-
including internal memoranda. Camp noted that the internal memoranda

may have been confidential. "I feel like a spy," she commented. In a

letter the next day, Camp regretted her actions, promising to "be good

. . . and send no more dirty secrets from Idexx. . . ." Martin

responded, claiming that he did "not want to know anything confidential

about IDEXX," and asking only for "public information."

Despite Camp's repentance and Martin's denial of any desire

for confidential or proprietary information, Camp continued to assemble

and pass on information, an activity which she apparently viewed as

ethically suspect.2 Camp also relayed information on IDEXX's strategic

plans, including a potential partnership with a company whose name, at

least, was confidential. By late June, Camp appeared set on leaving

IDEXX, as she commented that "I need to unload all of my stock

options." Furthermore, Camp had received (and ignored) reminders of

her non-compete and non-disclosure agreements; she forwarded these

reminders to Martin, noting that "as a spy myself, I get a particular

chuckle out of [them]," and that "my loyalty has ended." Camp and

2 Camp's May 7 e-mail noted that "the fun part of my week has been
putting together packages of information for you . . ." and celebrated
"the intrigue of being Agent Ace." On June 22, she "couldn't resist
playing Ace-the-Spy today . . . and so I am dropping a few more things
in the mail." But her fun did not come without guilt: "I know I should
be shot. But I just can't resist sending you this chain of internal
Idexx e-mails regarding concern of a certain competitor;" "I am
probably crossing the line with this [but] I've crossed lines worse
than this one." However, Camp re-assured herself that she was doing
nothing wrong, that she was forwarding "nothing proprietary" but simply
the "dirty secrets of an IDEXX Livestock and Poultry weekly meeting."

-9-
Martin began to formalize their plans for meeting at Lake Tahoe in

early August, as well as for Camp's eventual move to Nevada.3

3 The result of the so-called "palace coup" was that Martin left WDV
to begin a separate venture (Maverck) prospectively located in Reno,
Nevada.

-10-
 C. More Questions

As Camp prepared to leave IDEXX, she continued to send Martin

information, at times upon his requests and at times on her own

initiative. In a July 4 e-mail, Martin inquired about IDEXX's

methodology for flourescent-based tests. Camp responded that she was

not familiar with the technology, but that she would "try to have some

answers by the end of the week." By July 7, she did. In a postscript

to a July 10 message, Martin renewed his request regarding particular

tests, their procedures, and IDEXX sales practices. Camp responded to

the extent she was able.

D. Potential Competition

Martin also disclosed his "game-plan" to compete with IDEXX.

Martin noted that Camp should "think tests for heartworm, FIV, FeLV,

etc.," all tests IDEXX currently sold. Camp responded with

instructions on how "[t]o beat the competition (for cat & dog

diagnostics) . . . [in which] Idexx is definitely the world-wide

leader." Martin egged her on: "I always meant to tell you that we

could always start our own veterinary lab service company - just like

all the fine folks that IDEXX is trying to buy out."

E. The First Package

On July 12, Camp sent Martin a large package of information

via Priority Mail, including various devices, product inserts, USDA

course materials, information on her own projects, miscellaneous IDEXX

-11-
product information, and "Examples of My Work," labeled "Confidential."

Camp also promised to send an actual test kit, if Martin wished. The

mailing and receipt of this package formed the basis of a mail fraud

charge, of which Martin was ultimately convicted. After receiving the

package, Martin once more praised Camp's aggressiveness, encouraged her

to "keep on charging," to "keep on thinking about the competition, and

how we can beat them," and promised that "lips are sealed."

III. Events Between July 19, 1998 to August 16, 1998

Correspondence during the next several weeks provided the

basis for Martin's conviction on four counts of wire fraud.

A. More Questions and Answers

In several e-mails between July 19 and July 21, Camp outlined

a proposal for customer-friendly additions and modifications to current

IDEXX technology. Martin explained how such a test might be

constructed, telling Camp that if it could be marketed successfully,

she would receive "enough bonus money to buy [a] house for cash." Camp

clearly understood that the proposal was for technology competitive

with that of IDEXX, as she suggested the possibility that "[she and

Martin would] own the whole market."

Camp's proposal also prompted Martin to ask about the

relevance and applicability of x-Chek or similar software. Camp

offered to send Martin a copy of the software IDEXX had developed for

poultry and livestock testing. Martin responded the same day, writing

-12-
that "he would like to play with the software you mentioned." Camp

immediately replied, promising "lots of cool goodies," including the x-

Chek disks. Camp also indicated that she was on the verge of "cleaning

out her office" and leaving IDEXX; however, she noted that she was

speaking to headhunters in addition to Martin.

Martin's response to this last message re-affirmed his

intention to compete with IDEXX.4 Moreover, Martin acknowledged Camp's

potentially illicit activity, and exhorted her to continue in her final

few days at work. "Before you bag IDEXX (I am embarrassed to ask

this), absorb as much information, physically and intellectually, as

you can. I never had a spy before." Camp's answer bemoaned the

constraints on her information gathering (because co-workers knew she

was preparing to leave), detailed her continued efforts to take home

both information and property, and admitted the illegality (or at least

inappropriateness) of her actions.5 However, Camp noted that she had

as of yet been unwilling to copy "confidential" documents, although she

admitted that she had copied "semi-confidential" internal e-mail. The

4 Martin wrote: "We are going to be in the veterinary business big time
- vaccines and diagnostics. Dogs, cats, poultry and livestock."
5 "I have been filling my briefcase every day with all the stuff that
I want to keep. . . . Aren't I awful? I'm liking this spy business
way too much. . . . The problem [with hiring other IDEXX employees] is
they'll see what a thief I am. . . . My biggest "inheritance" from
Idexx is a multi-channel pipettor. . . . I am still feeling guilty
about [taking the pipets]. I don't know where all this lawlessness in
me is coming from."

-13-
next day, Camp promised to send Martin additional kits as her last

"secret agent" act.

-14-
 B. The Second Package

In Camp's last several days at IDEXX, she continued to

collect products and information, which she forwarded to Martin on July

24. The package included operating manuals, IDEXX marketing materials,

research and development data, a sales binder prepared by an

independent contractor, as well as a binder labeled "Competition."

C. Found Out

Unfortunately for Camp and Martin, Camp inadvertently sent

her July 25 e-mail (acknowledging that July 24 was her last day and

detailing the contents of her second package) to John Lawrence, the

global marketing manager for Poultry/Livestock at IDEXX. Camp informed

Martin of what she had done, and continued on her vacation. According

to Camp, Martin later recommended that she lie to IDEXX, i.e., that she

tell them that he was interested only in limited information unrelated

to IDEXX core businesses. Upon her return to Maine, Camp was

intercepted and interviewed by an FBI agent at the Portland airport.

An August 9, 1998 search of Martin's home found the contents of Camp's

second package, including the x-Chek software.

DISCUSSION

I. Standard of Review

An appellant challenging the sufficiency of the evidence

presented to a jury faces a difficult task. An appellate court must

"examine the evidence in the light most flattering to the prosecution,"

-15-
indulge "all reasonable inferences in favor" of the prosecution, and

then determine "whether a reasonable jury could find guilt beyond a

reasonable doubt." United States v. Echeverri, 982 F.2d 675, 677 (1st

Cir. 1993). The court must credit both direct and circumstantial

evidence, without evaluating or speculating on the weight the jury has

given different pieces of evidence, and without making its own

judgments as to credibility. See id. Furthermore, juries need not

evaluate pieces of evidence in isolation, but may draw conclusions from

the sum of an evidentiary presentation. See United States v. Ortiz,

966 F.2d 707, 711 (1st Cir. 1992). Even if the appellate court feels

that a jury could have reached a different verdict, the court need only

satisfy itself that the guilty verdict finds support in "a plausible

rendition of the record." Id. Note, however, that the jury verdict is

not given a "free pass"; if the evidence, when viewed in the light most

favorable to the government, "gives equal or nearly equal

circumstantial support" to theories of guilt and innocence, the

convictions must be reversed. United States v. Andújar, 49 F.3d 16, 20

(1st Cir. 1995).

II. Conspiracy to Steal Trade Secrets

The jury found Martin guilty of count 13, which charged him

with conspiracy to steal trade secrets in violation of the Economic

-16-
Espionage Act of 1996, specifically 18 U.S.C. § 1832(a)(5).6 In order

to find a defendant guilty of conspiracy, the prosecution must prove

(1) that an agreement existed, (2) that it had an unlawful purpose, and

(3) that the defendant was a voluntary participant. See United States

v. Echeverri, 982 F.2d 677, 679 (1st Cir. 1993). The government must

prove that the defendant possessed both the "intent to agree and [the]

intent to commit the substantive offense." United States v. Andújar,

6 18 U.S.C. § 1832(a) provides in full:

Whoever, with intent to convert a trade secret, that is
related to or included in a product that is produced for or
placed in interstate or foreign commerce, to the economic
benefit of anyone other than the owner thereof, and
intending or knowing that the offense will injure any owner
of that trade secret, knowingly-
(1) steals, or without authorization
appropriates, takes, carries away, or conceals,
or by fraud, artifice, or deception obtains such
information;
(2) without authorization copies, duplicates,
sketches, draws, photographs, downloads, uploads,
alters, destroys, photocopies, replicates,
transmits, delivers, sends, mails, communicates,
or conveys such information;
(3) receives, buys, or possesses such
information, knowing the same to have been stolen
or appropriated, obtained, or converted without
authorization;
(4) attempts to commit any offense described in
paragraphs (1) through (3); or
(5) conspires with one or more other persons to
commit any offense described in paragraph (1)
through (3), and one or more of such persons do
any act to effect the object of such conspiracy,
shall, except as provided in subsection (b), be
fined under this title or imprisoned not more
than 10 years, or both.

-17-
49 F.3d 16, 20 (1st Cir. 1995) (citing United States v. García, 983

F.2d 1160, 1165 (1st Cir. 1993)). In addition, the government must

prove that at least one conspirator committed an "overt act," that is,

took an affirmative step toward achieving the conspiracy's purpose.

See 18 U.S.C. § 1832(a)(5); United States v. Cassiere, 4 F.3d 1006,

1014 (1st Cir. 1993).

The agreement need not be express, however, as long as its

existence may be inferred from the "defendants' words and actions and

the interdependence of activities and persons involved." Cassiere, 4

F.3d at 1015 (quoting United States v. Boylan, 898 F.2d 230, 241-42

(1st Cir. 1990)). A so-called "tacit" agreement will suffice. See

United States v. Woodward, 149 F.3d 46, 67 (1st Cir. 1998). Moreover,

the conspirators need not succeed in completing the underlying act, see

United States v. Giry, 818 F.2d 120, 126 (1st Cir. 1987), nor need that

underlying act even be factually possible. See id.

As of yet, only the Third Circuit has had the opportunity to

address § 1832(a), which specifically covers private corporate

espionage. See United States v. Hsu, 155 F.3d 189 (3d Cir. 1998). The

statute criminalizes the knowing theft of trade secrets, as well as

attempts or conspiracies to steal trade secrets. The Act defines a

"trade secret" broadly, to include both tangible property and

intangible information, as long as the owner "has taken reasonable

measures to keep such information secret" and the information "derives

-18-
independent economic value . . . from not being generally known to . .

. the public." Id. at 196; 18 U.S.C. § 1839(3).7 This definition of

trade secret "protects a wider variety" of information than most civil

laws; however, "it is clear that Congress did not intend . . . to

prohibit lawful competition such as the use of general skills or

parallel development of a similar product," Hsu, 155 F.3d at 196-97,

although it did mean to punish "the disgruntled former employee who

walks out of his former company with a computer diskette full of

engineering schematics," id. at 201 (citing H.R. Rep. No. 104-788, at

7). In other words, § 1832(a) was not designed to punish competition,

even when such competition relies on the know-how of former employees

of a direct competitor. It was, however, designed to prevent those

employees (and their future employers) from taking advantage of

confidential information gained, discovered, copied, or taken while

employed elsewhere.

Martin contends that the evidence is factually insufficient

to establish a "meeting of the minds" or agreement to violate §

1832(a), because (1) insufficient evidence exists to establish an

7 18 U.S.C. § 1839 defines the term "trade secret" to include "all
forms and types of financial, business, scientific, technical, economic
or engineering information, including patterns, plans, compilations,
program devices, formulas, designs, prototypes, methods, techniques,
processes, procedures, or codes, whether tangible or intangible, and
whether or how stored, compiled or memorialized physically,
electronically, graphically, photographically, or in writing," as long
as the "reasonable measures" and "independent economic value" tests are
met (emphasis added).

-19-
agreement between Martin and Camp; (2) insufficient evidence exists to

prove that Martin had the necessary intent to commit an act prohibited

by § 1832(a), i.e., injure the owner of the trade secret (IDEXX); and

(3) the information provided by Camp to Martin did not meet the

statutory definition of a trade secret under § 1839(3). As we explain

below, none of these arguments are persuasive.

First, the evidence is sufficient for a reasonable jury to

conclude that Martin and Camp formed an agreement regarding the theft

of trade secrets. Martin's argument against the existence of an

agreement relies on the facts that (a) his early e-mails specifically

requested that Camp not send him confidential information, and (b) Camp

did not seem to know the distinction between confidential information,

proprietary information, and office gossip. However, while Martin's

disclaimer and Camp's confusion indicate the lack of an explicit

agreement at that time, they do not necessarily negate the existence of

an agreement. See Woodward, 149 F.3d at 67 (including tacit agreements

within conspiracy requirements). A rational jury could have plausibly

concluded on the basis of the evidence presented at trial that an

agreement existed. By July 21, Martin had received extensive

correspondence from Camp that she had either marked "confidential" or

"proprietary," or had expressed some hesitation in forwarding.8 Despite

8 Some of the information Martin received in their early correspondence
clearly had the potential to fall within the § 1839 definition of trade
secret: for example, cost information unavailable to the public

-20-
his previous protestations that he wanted nothing to do with IDEXX or

its confidential information, Martin asked Camp on July 21 to "absorb

as much information, physically and intellectually, as you can," and

included a set of questions to direct Camp's research. Throughout June

and July, Martin referred to Camp as "Agent Ace," or as his "spy."

Given the type of information that Martin had already received, a

reasonable jury could have concluded that, whatever Martin's original

intentions, as of July 21, Camp and Martin had reached a tacit

agreement by which she would send him items and information that

potentially fell under the trade secret definition of 18 U.S.C. §

1839(3). In other words, sufficient evidence exists to show an

agreement between Camp and Martin to violate § 1832(a).

Second, the evidence is sufficient to show that Martin

intended to injure IDEXX by obtaining IDEXX trade secrets and competing

against IDEXX. Although Martin consistently claimed that he had no

interest in developing products that competed with IDEXX, and hence had

no intention of injuring IDEXX economically, his correspondence with

Camp detailed a plan of competition. Martin had, among other things,

considered the possibility of starting a competing veterinary lab,9 and

included in Camp's message of May 2, a confidential IDEXX business plan
included in Camp's June 8 message, and a customer list included in
Camp's July 1 message.
9 In his July 19 message, Martin told Camp that he had "always meant
to tell [her] that [they] could always start our own veterinary lab
service company - just like all those fine folks that IDEXX is trying

-21-
had asked Camp to think, in particular, about ways to compete with

tests that IDEXX manufactured. A reasonable jury could have found that

Martin intended to use the information gained from Camp, particularly

information on IDEXX's costs and customer dissatisfaction with IDEXX,

to create a more successful competitor with greater capability to

injure IDEXX.

Third, Martin's final argument - that he actually received

no trade secrets - even if true, is irrelevant. Martin has only been

found guilty of a conspiracy to steal trade secrets, rather than the

underlying offense.10 See Giry, 818 F.2d at 126. The relevant question

to determine whether a conspiracy existed was whether Martin intended

to violate the statute. See id; see also Hsu, 155 F.3d at 198 ("[T]he

crimes charged - attempt and conspiracy - do not require proof of the

existence of an actual trade secret, but, rather, proof only of one's

attempt or conspiracy with intent to steal a trade secret."). The key

question is whether Martin intended to steal trade secrets. A rational

jury, considering the information Camp had already sent Martin, could

have concluded that his further queries indicated such an intention.

to buy out." A previous message from Camp to Martin had detailed
IDEXX's strategy of purchasing competitors.
10 Similarly, it is not problematic that the jury found Martin not
guilty on the underlying offense of interstate transportation of stolen
goods, but did find him guilty of the conspiracy to commit such a
crime. See United States v. Giry, 818 F.2d 120, 126 (1st Cir. 1987).

-22-
 A reasonable jury could therefore have concluded that Martin

and Camp formed an agreement by which Camp conveyed information and

property to Martin that potentially fell under the definition of a

trade secret in 18 U.S.C. § 1839. As a result, sufficient evidence

existed to convict Martin of conspiracy to steal trade secrets.

-23-
III. Conspiracy to Transport Stolen Property in Interstate Commerce

The jury also found Martin guilty of conspiracy to transport

stolen goods interstate, in violation of 18 U.S.C. § 231411 and 18

U.S.C. § 371,12 as charged in count 14. Again, a conviction for

conspiracy does not require that the defendant was successful in the

underlying offense, see Giry, 818 F.2d at 126, but only that an

agreement to commit the underlying offense existed, see Echeverri, 982

F.2d at 679, and that at least one co-conspirator committed an overt

act in furtherance of the conspiracy, see United States v. Cassiere, 4

F.3d 1006, 1014 (1st Cir. 1993). To be found guilty of a conspiracy to

transport stolen goods interstate, Martin must have agreed to transport

"goods, wares, [or] merchandise," with a "value of $5,000 or more," in

interstate or foreign commerce, and "known the same to have been

stolen, converted or taken by fraud." Dowling v. United States, 473

U.S. 207, 214 (1985) (citing 18 U.S.C. § 2314). Although intangible,

"purely intellectual" property does not fall within the auspices of §

2314, intangible components of tangible items may contribute to the

11 In relevant part, 18 U.S.C. § 2314 provides that:

Whoever transports, transmits, or transfers in
interstate or foreign commerce any goods, wares,
merchandise, securities or money, of the value of $5,000 or
more, knowing the same to have been stolen, converted or
taken by fraud. . . . shall be fined under this title or
imprisoned not more than ten years, or both.
1218 U.S.C. § 371 punishes conspiracies "to commit any offense against
the United States."

-24-
$5,000 value requirement. See United States v. Brown, 925 F.2d 1301,

1307-08 & n.14 (10th Cir. 1991).

The indictment for conspiracy to transport stolen goods was

based in part on Martin's July 21 request for a copy of x-Chek software

and his July 22 acknowledgment that Camp would be sending him

additional test kits. See Brief for Appellant 31 (admitting that the

"evidence at trial established . . . two instances on which Dr. Martin

requested 'property,' as opposed to 'information.'"). Martin received

a large package from Camp in the mail after sending these two e-mails.

However, Martin claims that (1) this evidence is insufficient to

establish the existence of an agreement with Camp to transport stolen

property; and (2) that the property in question did not meet the $5,000

value requirement of 18 U.S.C. § 2314.

Martin first challenges the sufficiency of the evidence to

support the existence of an agreement between Camp and himself with

respect to stolen property. For the same reasons that a rational jury

could plausibly have found an agreement to steal trade secrets, we

conclude that the same rational jury could have found an agreement

between Camp and Martin by which she would send him property from

IDEXX. However, the question remains whether that agreement (1)

covered "stolen" property in violation of § 2314, and (2) covered

property with a value of more than $5,000.

-25-
 For property to be "stolen" under 18 U.S.C. § 2314, the

defendant must have "known" it to be "stolen, converted or taken by

fraud." Although the prosecution introduced testimony that IDEXX only

provided x-Chek for "free" under a license agreement with its

customers, Martin claimed that, based on Camp's previous e-mail

communication, he believed the software was free.13 However, in a

conviction challenged for sufficiency of the evidence, we must give the

jury's finding great weight, asking only whether a "reasonable" or

"rational" jury could have "plausibly" found guilt beyond a reasonable

doubt. See Echeverri, 982 F.2d at 677; United States v. Ortiz, 966

F.2d 707, 711 (1st Cir. 1992). In this case, given that three months

had passed since Camp had described x-Chek as "free," that she had

originally discussed it in connection with customer satisfaction, that

the "free" label occurred at the end of a lengthy e-mail, and that

Martin was a scientist who had surely dealt with companies such as

IDEXX before, a jury could certainly have concluded that he knew that

such companies did not provide major software packages for free to

those who were neither customers nor potential customers, and that

Martin knew the software had been stolen or converted from IDEXX.

13In an April 22, 1998 e-mail, Camp had provided "a few comments on
the poultry and livestock industries," concluding that "[t]he main
selling point for IDEXX is the free software program (x-Chek) for data
analysis and monitoring of vaccination programs - customers love it."

-26-
 Moreover, with respect to the "free" test kits, the evidence

is much stronger that Martin knew that they had been "stolen, converted

or taken by fraud." First, when Camp sent Martin the original set of

kits, she told him not to "say where [he] got them," and not to mention

them to her relatives, because "all rules are null-and-void now that

Idexx has been acquiring kits from its competitors by sneaky means."

Even though Camp noted that it was part of her job to send free kits to

potential customers, Martin was clearly not a potential customer, and

could not plausibly have believed that this mandate applied to his

"spy" sending free kits to him.14 Furthermore, Martin admitted that,

in the future, he would have to buy the kits, suggesting that he did

not really believe he was entitled to obtain them for free.

Finally, the jury could have plausibly concluded that

Martin's July 21 request to Camp to "absorb as much information,

physically and intellectually, as you can," included a request to send

him physical goods such as test kits and software. Martin had already

received items from Camp, and was at the time expecting further items,

such as the x-Chek software. Although Martin is correct that § 2314

does not apply to purely "intangible information," the theft of which

is punishable under copyright law and other intellectual property

14Furthermore, Camp appended a facetious "smiley face" to her e-mail
mention of her duty to send customers free kits, indicating that
whatever her job description was, it did not include sending Martin
free kits.

-27-
statutes, see United States v. Brown, 925 F.2d 1301, 1307 (10th Cir.

1991), § 2314 does apply when there has been "some tangible item taken,

however insignificant or valueless it may be, absent the intangible

component," id. at 1308 n.14. Given that at this time Camp had already

sent Martin numerous tangible items, he would have been on notice that

any request to "absorb information" might (and likely would) produce

tangible material that he would receive.

As for Martin's claim that the value of his requests did not

meet the $5,000 floor, there is evidence that the value of the x-Chek

software approached $2,500, and that individual diagnostic kits ranged

from $1,500 to $2,200. Furthermore, there is evidence that Martin was

aware of the potential cost of test kits.15 Whether the actual items

received exceeded the statutory value or not (and there is strong

evidence that they in fact did), a jury could plausibly have concluded

that Martin, with sufficient knowledge of the kit price, had requested

items that would likely have exceeded $5,000 and thus satisfied the

value prong of the conspiracy charge.16

IV. Wire Fraud and Mail Fraud

15Martin had asked Camp about IDEXX pricing on May 3, 1998, and she
responded later the same day with the $1,500-$2,200 range.
16 In fact, a jury could have concluded that Martin over-estimated the
price of diagnostic kits: although Camp provided price information in
the $1,500-$2,200 range, the actual price of some of the kits received
by Martin ranged from $65 to $250. Martin could therefore have intended
to steal $10,000 worth of property, but have only been successful in
stealing $5,000 worth.

-28-
 The remainder of defendant's convictions are based on four

counts of wire fraud and two counts of mail fraud pursuant to 18 U.S.C.

§§ 2 (aiding and abetting), 1341 (mail fraud), 1343 (wire fraud), and

1346 (honest services fraud).17 Because of the similarity of the

operative language of the wire fraud and mail fraud statutes, we

analyze the offenses together. See Carpenter v. United States, 484

U.S. 19, 25 n.6 (1987); United States v. Boots, 80 F.3d 580, 586 n.11

(1st Cir. 1996). To prove wire or mail fraud, the government must

show: (1) a scheme to defraud by means of false pretenses; (2) the

defendant's knowing and willing participation in the scheme with the

intent to defraud; and (3) the use of interstate wire or mail

communications in furtherance of the scheme. See Cassiere, 4 F.3d at

1011 (citing United States v. Serrano, 870 F.2d 1, 6 (1st Cir. 1989))

17 The relevant language of 18 U.S.C. §§ 1341 and 1343 is the same:

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 . . . [uses the mails or wires, or causes their
use] for the purpose of executing such scheme or artifice .
. . shall be punished.

18 U.S.C. § 1346 defines a "scheme or artifice to defraud" in the
wire and mail fraud statutes to include "a scheme or artifice to
deprive another of the intangible right of honest services."

18 U.S.C. § 2 extends liability to a defendant who "aids, abets,
counsels, commands, induces or procures [the] commission [of an
offense,]" and to those who "willfully cause an act to be done" which
would be an offense if performed by the defendant.

-29-
(elements of wire fraud); United States v. Montminy, 936 F.2d 626, 627

(1st Cir. 1991) (elements of mail fraud).

Although the mail and wire fraud statutes originally required

that the scheme to defraud aim to deprive the victim of property or

some other item of economic value, see United States v. Sawyer, 85 F.3d

713, 723 (1st Cir. 1996), congressional legislation aimed at overruling

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

to include "schemes intended to deprive another of the intangible right

to honest services." Id. Despite concerns about the overreaching of

the wire and mail fraud statutes into the employer-employee

relationship, see, e.g., United States v. Lemire, 720 F.2d 1327, 1336

(D.C. Cir. 1983), courts have upheld convictions based on employee

misconduct, see, e.g., United States v. Frost, 125 F.3d 346 (6th Cir.

1997). As a result of this expanded definition, in order to uphold

Martin's conviction, sufficient evidence must exist to show his

participation in either (1) a scheme to defraud IDEXX of property or

other items of economic value by false pretenses, or (2) a scheme to

defraud IDEXX of Camp's honest services by false pretenses. Note that

Martin's success in the scheme is not relevant. See, e.g., Serrano,

870 F.2d at 6. We conclude that a rational jury could have found that

such evidence had been proven under either theory.

A. Property Theory

-30-
 Confidential information may be considered property for the

purposes of §§ 1341 and 1343. See United States v. Czubinski, 106 F.3d

1069, 1074 (1st Cir. 1997). Where such information is obtained - thus

depriving the rightful owner of its property rights - through dishonest

or deceitful means, the wire and mail fraud statutes may be violated.

See id. However, mere access to the confidential information is

insufficient; rather, "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." Id. In other words, for Martin's convictions to stand under

this prong of the wire and mail fraud statutes, sufficient evidence

must exist for a reasonable jury to find that Martin knowingly and

willingly participated in a scheme to defraud IDEXX of confidential

information or other property via false pretenses, and in so doing

either harmed IDEXX or intended to use the information for his own

gain.

Martin claims that because, on their face, the e-mails on

which counts 7-10 are based contained no misrepresentations, they

cannot provide the basis for a scheme to defraud.18 However, the e-

18 We will ignore the government's somewhat fanciful suggestions that
(1) Martin's delivery of confidential information about his own company
and (2) Martin's promises of future employment were themselves
misrepresentations. There is no evidence that Martin - for all his
ethical failings here - was insincere in his employment offer to Camp,

-31-
mails themselves need not be fraudulent; rather, it is the scheme

itself that must rely on false pretenses. See United States v. Green,

786 F.2d 247, 249 (7th Cir. 1986) ("The causal connection between the

mailing and the success of the scheme, not the knavery in the mailings,

is what matters.").

A reasonable jury could first have found that, as of July 12

(the date after which the four wire fraud and two mail fraud

convictions stem), Camp had agreed with Martin to send him confidential

information and tangible property. Camp had previously noted that her

e-mails contained information that she should not have spread; Martin's

repeated questions designed to elicit further information, including

his acceptance of Camp as his "spy," provide further evidence of the

scheme. A reasonable jury could have found that Martin intended to use

such confidential information either to compete with IDEXX, thus

harming IDEXX, or at the very least for his own pecuniary gain. For

example, Martin and Camp engaged in a lengthy discussion of the best

manner in which to design a test kit that would surpass IDEXX's in

serving demanding customers in the veterinary profession. A reasonable

jury could have found that Martin's requests, including to "absorb as

much information, physically and intellectually as possible," indicate

nor that his passing of confidential information to her was anything
more than a calculated risk to get her excited about his projects.
Camp's consistent misrepresentations to IDEXX are, however, sufficient
to support the charges of the indictment under examination here.

-32-
that his participation in the scheme was both willing and knowing.

Finally, a reasonable jury could have found that Camp's actions -

including requesting information beyond her job description without

informing IDEXX of her conflicted interests, sending Martin information

and property under the pretense that he was a customer who had a right

to receive information and property free, and relaying confidential

information in violation of both her fiduciary duty to IDEXX and her

signed non-disclosure and non-compete agreements - constituted false

pretenses.19

B. Honest Services Theory

Alternatively, the jury could have found that Martin and

Camp's e-mail communications and mail deposits constituted a scheme to

deprive IDEXX of Camp's honest services. Although the honest services

doctrine has mainly been used to punish fraud against the citizenry

perpetrated by government officials,20 see, e.g., Czubinski at 1076-77,

courts both before McNally v. United States, 483 U.S. 350 (1987), and

19The fact that Camp engaged in the false pretense, rather than Martin
himself, is irrelevant as long as Martin knowingly and willfully
participated in the scheme to take advantage of the false pretenses.
See Cassiere, 4 F.3d at 1011. As discussed above, a rational jury
could have found that Martin's knowledge of the scheme, reference to
Camp as his "spy," and repeated requests for information were
sufficient to support a finding that he willingly and knowingly
participated in the scheme.
20This was the case both before McNally overruled the honest services
doctrine, see McNally v. United States, 483 U.S. 350, 359-60 (1987),
and after Congress re-instated the doctrine by passing 18 U.S.C. §
1346, see Czubinski, 106 F.3d at 1076 n.9.

-33-
after the passage of § 1346 have been willing to expand the doctrine to

the employer-employee relationship, see id. at 1077; United States v.

Sun Diamond Growers of California, 138 F.3d 961, 973 (D.C. Cir. 1998)

(§ 1346 "has also been used, as here, to prosecute private citizens who

defraud private entities"). However, courts have been hesitant to

impose federal mail and wire fraud liability upon every employee

transgression, and have required "a failure to disclose something which

in the knowledge or contemplation of the employee poses an independent

business risk to the employer," or creates "reasonably foreseeable

economic harm" to the employer. Sun Diamond, 138 F.3d at 973 (quoting

United States v. Lemire, 720 F.2d 1327, 1337 (D.C. Cir. 1983)).21 While

this Court has held that merely examining confidential information for

one's own purposes does not rise to this level, see Czubinski at 1077,

use of confidential information for "private purposes" may rise to the

necessary level of self-dealing. See id.22

21Although the First Circuit has not yet considered a case in which
the honest services fraud doctrine is applied to the defrauding of a
private entity, in Czubinski the court suggested that the Lemire
standard was the appropriate one. See Czubinski, 106 F.3d at 1077
(concluding 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 [viewing of confidential information at issue in
Czubinski]") (citing Lemire, 720 F.2d at 1332-34).
22Other courts have found honest services fraud by an employee for
pecuniary-related breaches of fiduciary duty. See, e.g., Lemire, 720
F.2d at 1332-34 (employee took bribes); United States v. Siegel, 717
F.2d 9, 14 (2d Cir. 1983) (corporate fund use for non-corporate
purposes). However, the fraud in question need not deprive the
employer specifically of money, but may do so indirectly by showing

-34-
 A jury could reasonably have found that Camp's disclosure of

confidential information was in knowing breach of her fiduciary duty to

IDEXX.23 Moreover, the evidence supports a finding that Camp's failure

to disclose her communication with Martin posed "an independent

business risk" to IDEXX and created "reasonably foreseen economic harm"

to IDEXX. By July 1998, Camp knew that Martin intended his company to

compete with IDEXX - in fact, she was authoring proposals detailing how

that competition would be most successful.

Under 18 U.S.C. § 2, Martin is guilty of aiding and abetting

a crime if he "willfully participated in it," that is, wished it to

occur and affirmatively participated in its successful outcome. See

United States v. Indelicato, 611 F.2d 376, 385 (1st Cir. 1979). The

government has offered substantial evidence of Martin's willing

participation in (in fact, sponsorship of) Camp's breach of fiduciary

duty. A jury could have found that Martin's request for information

about IDEXX's competitive stance, his willing receipt of IDEXX

actual harm to tangible interests. See United States v. Frost, 125
F.3d at 367-68 (failure to disclose and reasonable contemplation of
business harm sufficient); United States v. Garfinkel, 29 F.3d 1253,
1258 (8th Cir. 1994) (deprivation of benefits of pharmaceutical
research).
23 Camp had signed non-disclosure and non-compete agreements at the
beginning of her IDEXX tenure, and had been reminded of the
consequences of that agreement midway through her communication with
Martin, see Joint Appendix 141 (Electronic mail message from Caryn Camp
to Stephen Martin, forwarding internal IDEXX memorandum dated June 4,
1998).

-35-
materials and inventory, and his request that Camp gather as much

information as possible prior to leaving the company both encouraged

and aided Camp in breaching her fiduciary duty to IDEXX. Moreover, in

Martin's use of "spy" terminology, in his specific requests for

information, and in his apparent willingness to use the information to

compete directly with IDEXX, a reasonable jury could have found that

his participation in the scheme to defraud IDEXX of Camp's honest

services, i.e., to have Camp breach her fiduciary duties for personal

gain and harm to IDEXX, was sufficient to maintain liability for aiding

and abetting pursuant to 18 U.S.C. § 2.

C. The Individual Counts of Wire and Mail Fraud

The individual counts of wire and mail fraud then only need

be communications designed to effect a scheme under either the property

theory or the honest services theory. Again, the communications need

not be fraudulent on their face. See United States v. Green, 786 F.2d

247, 249 (7th Cir. 1986) (citing United States v. Sampson, 371 U.S. 75

(1962)). We examine each count in turn to determine if a rational jury

might have plausibly concluded that they were used to effect one of the

two possible schemes to defraud.

Martin claims that the e-mails on which counts 7 and 8 are

based (Camp's offer to send him x-Chek software and his affirmative

response) cannot be communications designed to effect a scheme to

defraud because he had no knowledge that the software was not free. As

-36-
previously pointed out, the record belies this claim. In any event,

Camp certainly knew that she was only supposed to send x-Chek to

customers; Martin was clearly not a customer. Thus her x-Chek offer

could be construed as part of a scheme to defraud IDEXX of her honest

services. In other words, a reasonable jury could conclude that Camp's

offer to send x-Chek to Martin breached her fiduciary duty to IDEXX and

caused IDEXX harm. As a reasonable jury could also find that Martin

aided and abetted this breach, see supra, the evidence is sufficient to

convict on counts 7 and 8. Furthermore, a jury could reasonably have

found that Martin knew that he was not entitled to a free copy of x-

Chek. If so, Martin would have obtained the software through false

pretenses, and thus satisfied the alternative prong of the wire fraud

test with his affirmative response.

Martin admits that his e-mail on which count 9 is based,

asking Camp to "absorb as much physically and intellectually as you

can," could be construed as "requesting . . . non-confidential public

information," Appellant Brief 38, but only if read in isolation.

Martin argues that as a non-competitor, he had no use for confidential

information, and that the words "as you can" incorporated previous

guidelines of confidentiality. Id. at 39. However, it is not our task

to determine if alternate interpretations of the evidence were

available to the jury, but rather if the evidence was sufficient for

the jury to reach a reasonable interpretation upon which it could

-37-
convict. See, e.g., United States v. Batista-Polanco, 927 F.2d 14, 17

(1st Cir. 1991). Certainly the request made by Martin in this

particular e-mail is highly suggestive of a request for information

which he knew was confidential and would require Camp's "spying" to

unearth. A reasonable jury could have interpreted his request in this

manner, and thus found that this communication was made in furtherance

of the scheme to defraud.

Martin claims that because Camp's July 21 e-mail (on which

count 10 is based) denies any use of confidential information, that it

could not be part of the scheme to defraud. However, this e-mail

alerted Martin to the delivery of seven binders (which included

information marked specifically as "confidential"), provided further

information about IDEXX procedures and methods, and noted that Camp had

"found a jackpot." Despite Camp's denial, we have found above that

sufficient evidence existed for the jury to find that a scheme to

defraud existed and that Martin received confidential information in

connection with this scheme. Given that evidence, this communication -

among other things, notifying Martin that she had sent documents to him

- clearly furthered the scheme.

With respect to the mail fraud counts (11 and 12), Martin

claims that, because Camp mailed items to Martin on her own initiative,

Martin could not be guilty of aiding and abetting mail fraud on these

counts. Again, defense counsel confuses what Martin is guilty of

-38-
aiding and abetting - the scheme to defraud, not the individual

mailing. Again, the jury had sufficient evidence to find Martin guilty

of aiding and abetting the scheme to defraud, either through

deprivation of property under false pretenses or via honest services

fraud. Camp's mailing of the packages to Martin was in furtherance of

the scheme: either because it finalized the property removal from

IDEXX or provided the final pieces to Martin's future competition with

IDEXX. Thus sufficient evidence existed to convict Martin on either

count. Moreover, § 1341 itself criminalizes the act of "causing"

another to deposit items in the mails that further a scheme to defraud.

Especially with respect to the second mail fraud count, based on the

package that included the IDEXX software, a reasonable jury could have

found that Martin's request caused Camp to send him those materials,

and found him guilty of violating § 1341 without relying on aiding and

abetting liability.

CONCLUSION

A careful reading of the seven-month e-mail communication

between Dr. Stephen Martin and Caryn Camp could lead to the conclusion

Martin and his counsel urge - that this is simply a pen-pal

relationship between a lonely Maine lab technician and a reclusive

California scientist. However, the evidence could also lead a reader

to the conclusion that something far more sinister was afoot: that an

originally harmless communication mushroomed into a conspiracy to steal

-39-
trade secrets and transport stolen property interstate, and that the

electronic mail and U.S. mails were used to further a scheme to defraud

IDEXX. Because we find there was sufficient evidence for a reasonable

jury to conclude the latter beyond any reasonable doubt, we AFFIRM the

defendant's conviction on all counts.

-40-