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U.S. v. MIDDLETON

January 21, 1999

UNITED STATES OF AMERICA, PLAINTIFF,
v.
NICHOLAS MIDDLETON, DEFENDANT.



The opinion of the court was delivered by: Legge, District Judge.

ORDER ON MOTIONS

Defendant has made several motions, which have been opposed, briefed, argued, and submitted for decision.

The indictment charges one count, a violation of 18 U.S.C. § 1030(a)(5)(A). That section provides that whoever "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" is guilty of a crime.

I.

Defendant first moves to dismiss the indictment on the ground that its allegations are insufficient. The charging indictment closely tracks the language of the statute quoted above. It then goes on to charge that "defendant knowingly transmitted code and commands to a computer system of an Internet Service Provider within the Northern District of California, a computer system that was then used in interstate and foreign commerce, and that as a result of such conduct the defendant intentionally caused damage without authorization, and that damage caused a loss aggregating at least $5,00 during a one-year period. . . ." The dispute is over the sufficiency of the allegation of damage.

The term "damage" for purposes of Section 1030(a)(5)(A) is defined in Subsection (e)(8) in four ways. The one that is at issue here is Subsection (e)(8)(A), defining "damage" as "causes loss aggregating at least $5,000 in value during any 1-year period to one or more individuals."

The indictment here specifically alleges that the damage was a loss aggregating at least $5,000 during a one-year period. The indictment does not use the words "to one or more individuals." However, the failure to include that language does not render the indictment fatally defective.

Federal Rule of Criminal Procedure 7(c) requires that an indictment be a plain, concise, and definite written statement of the essential facts constituting the offense charged. "An indictment is sufficient if it contains the elements of the charged crime in adequate detail to inform the defendant of the charge and to enable him to plead double jeopardy." United States v. Alber, 56 F.3d 1106, 1111 (9th Cir. 1995) (quoting United States v. Buckley, 689 F.2d 893, 896 (9th Cir. 1982)). "An indictment must be read in its entirety and construed in accord with common sense and practicality." Alber, 56 F.3d at 1111.

This indictment meets those standards. The acts which defendant is alleged to have done are certainly set forth with adequate particularity, tracking the language of the statute. Subsection (a)5(A) states that it is unlawful to cause damage to a protected computer, but does not specify what that damage is. Subsection (e)(8) defines "damage" in four ways. The indictment charges that the damage was a loss aggregating at least $5,000 during a one-year period. That is clearly invoking the damage defined in Subsection (e)(8)(A).

The motion to dismiss the indictment on the ground of the insufficiency of the charge is therefore denied.

II.

A more serious argument is that because of the requirement of the statute that the damage be to an "individual," it is not applicable to the facts of this case. Defendant argues that the term "to one or more individuals" includes only natural persons and not businesses. The government argues that "individuals" can include businesses as well as natural persons.

The indictment itself does not state whether the harm was to a natural person or not. The victim is identified only as an "Internet Service Provider." However, in the briefing on this motion the parties agree that the victim was a business entity known as Slip. net, which is not a natural person. Therefore, both sides ask this court to resolve the question of whether the "damage" defined by the statute must be to a natural person or can also be to other types of entities. There is no case decision on that issue under this statute. This court believes that the issue must be resolved based upon the intent of Congress.

A recent decision of the United States Supreme Court, Clinton v. City of New York, 524 U.S. 417, 118 S.Ct. 2091, 141 L.Ed.2d 393 (1998), discussed the use of the term "individual" in a statute, in the context of the Line Item Veto Act. That act provides that an "individual" adversely affected by the act can bring an action challenging its constitutionality. The Court interpreted the term "individual" to include not only natural persons, but also business and ...


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