The opinion of the court was delivered by: Dean D. Pregerson United States District Judge
FINDINGS OF FACT AND CONCLUSIONS OF LAW FOLLOWING BENCH TRIAL
This case proceeded to trial before this court on July 17, 2012. Following the close of evidence on July 18, 2012, trial was continued to August 31, 2012, during which the court heard extensive argument on Defendant's Motion to Dismiss All Felony Charges. After fully weighing and considering all of the evidence presented during the trial, as well as argument made by the parties on August 31, 2012, the court hereby finds Defendant guilty on Counts One through Five and Counts Nine through Eleven of the Second Superseding Indictment ("Indictment"), and not guilty on Counts Six Through Eight, as follows and for the reasons stated on the record and herein.
A. Defendant's Relationship With, and Knowledge Regarding, F.G. Defendant and F.G. met in approximately 2004, when they worked together at PSI in Burbank, California. (Reporter's July 17, 2012 Transcript ("7/17/12 RT") 98:12-25). Defendant was then the Director of Finance; F.G. held an administrative position and later held a position as client services consultant. (7/17/12 RT 99:1-11). Defendant and F.G. began dating in approximately October 2005, and continued their relationship for approximately two years. (7/17/12 RT 100:7-21). During their relationship, Defendant was married, but told F.G. that his relationship with his wife was not going well, that he and his wife were separated or were separating, and that they were going to get divorced, all of which F.G. believed. (7/17/12 RT 100:22-101:5).
During their relationship, F.G. lived with her parents. (7/17/12 RT 19:14-19; 99:19-25). Defendant was living in San Diego County. (7/17/12 RT 100:1-3). Defendant knew that F.G. lived with her parents. (7/17/12 RT 101:25-102:2). F.G. did not tell her parents about Defendant because he was married and she wanted to wait until his marriage had ended first. (7/17/12 RT 101:17-24). F.G. told Defendant how close she was with her family and that her relationship with her family meant a lot to her. (7/17/12 RT 102:3-9). Defendant was curious about F.G.'s Armenian culture and her family, and they spoke frequently about F.G.'s culture. (7/17/12 RT 102:9-20).
During their relationship, Defendant was aware of F.G.'s limited finances and knew F.G.'s salary at PSI. (7/17/12 RT 103:24-104:9). Defendant even helped F.G. plan a budget so she could afford to buy a car and still be able to pay her bills, including paying her mother $300 every two weeks. (7/17/12 RT 104:9-105:17).
During their relationship, F.G. and Defendant discussed F.G.'s desire to attend graduate school at Alliant University. (7/17/12 RT 105:18-106:7). Defendant even assisted F.G. by reviewing her personal statement and writing a letter of recommendation for F.G. to submit with her application to Alliant. (7/17/12 RT 106:7-107:24; 109:1-25; Exs. 27, 40).*fn1 During this time, F.G. was communicating via email with Brian Evans, the Director of Admissions at Alliant University's Fresno campus, through his university email account. (7/17/12 RT 108:16-25; 7/18/12 RT 36:13-37:3).
During their relationship, F.G. told Defendant that the number "5" was her favorite number because it was her high school volleyball number. (7/17/12 RT 110:12-22).
During their relationship, F.G. allowed Defendant to take nude photographs of her, including photographs while F.G. and Defendant were engaged in sexual activity. (7/17/12 RT 110:23-111:7). A few days after they were taken, F.G. asked Defendant to delete the photographs, which were on Defendant's external computer hard drive, and explained to him she would feel more comfortable if they were deleted. In response, Defendant deleted the photographs from his hard drive in front of F.G. (7/17/12 RT 111:12-112:8).
Defendant knew that distribution of these photographs, especially to F.G.'s family and friends, would be particularly upsetting to F.G. given her many discussions with Defendant regarding her family and Armenian culture, including that certain things should remain private and that a woman should not engage in sexual relations until after marriage. (7/17/12 RT 125:22-126:21).
B. F.G.'s Breakup with Defendant
In December 2006, F.G. discovered that Defendant had a six-month old child that he had never told her about and she began to second guess the relationship. (7/17/12 RT 112:9-20). Defendant did not want his relationship with F.G. to end and gave F.G. excuses every month as to why he could not make a commitment to F.G.; Defendant claimed that he and his wife were still getting divorced, that he would be serving his wife with divorce papers, and that F.G. should "stick around." (7/17/12 RT 112:21-113:9). By August, F.G. was starting to not believe Defendant. (7/17/12 RT 113:10-15). F.G. delayed breaking up with Defendant, in part because he had been threatening to distribute the sexually explicit photographs of F.G., which she learned he had not deleted. (7/17/12 RT 179:20-180:6).
On or about August 10, 2007, Defendant left PSI and started working for Red Mango in Culver City, California. (7/17/12 RT 172:13-19).
On August 11, 2007, F.G. met J.B. at their mutual friends' wedding. (7/17/12 RT 141:25-142:9; 7/18/12 RT 23:9-14).
On September 10, 2007, F.G. finally ended her relationship with Defendant. (7/17/12 RT 113:18-25).
C. Defendant's Campaign to Destroy Every Facet of F.G.'s Life Soon after Defendant started working at Red Mango, he called his friend, C.V., who still worked at PSI, and asked C.V. if C.V. could give F.G.'s email password to Defendant so he could have access to F.G.'s email. (7/17/12 RT 80:20-84:2). Defendant tried to bribe C.V. by offering to show him a slideshow of F.G. (7/17/12 RT 83:10-12). Even when C.V. declined, Defendant continued to ask him for this information, and then asked if C.V. could take a photograph of F.G.'s cubicle. (7/17/12 RT 84:6-23). After multiple calls from Defendant, C.V. finally took a photograph of F.G.'s cubicle with C.V.'s cell phone and emailed it to Defendant. (7/17/12 RT 84:23-85:6).
Sometime in early September 2007, Defendant, C.V., and two other individuals went to lunch in Burbank. Defendant brought his laptop, opened it up and showed the group a Powerpoint digital slideshow containing sexually explicit photographs of F.G. along with derogatory captions regarding the photographs. (7/17/12 RT 85:25-87:5). Defendant made the slideshow and said that he and F.G. had broken up, and he "was going to destroy her life." (7/17/12 RT 87:6-21). Defendant said he was going to send the slideshow to everyone, including F.G.'s father, which C.V. thought was bad given the nature of the photographs. (7/17/12 RT 88:6-21). When C.V. told Defendant not to send the slideshow to F.G.'s father, Defendant got angry at C.V. and asked why he was defending F.G. (7/17/12 RT 88:18-24).
Approximately one week before F.G. broke up with Defendant, she noticed that her Hotmail email inbox was either fully or partially deleted and she eventually lost access to her account.
(7/17/12 RT 114:1-115:2; 200:18-202:4).*fn2 On September 10, 2007, the day F.G. broke up with Defendant, he created email account email@example.com*fn3 and used that account to send the following email to F.G. at her office:
Whats up bitch? After a year and a 1/2 , Im starting to get my revenge on a dirty lying slut who puts shame on her people and culture every day of her shitty, worthless life. It feels very good to have justice right now...I like how it feels to fuck you up. Ha ha ha!!!! (Ex. 17, BS 1905).
The next day, September 11, 2007, Defendant accessed F.G.'s Bank of America account, including her checking account ending in 5807 ("F.G.'s BofA account"), using Bank of America's online banking service without F.G.'s knowledge or authorization. (7/17/12 RT 129:21; 148:8-154:3; Ex. 43). That morning, after several failed attempts, Defendant successfully logged into F.G.'s Bank of America account using F.G.'s real log-in ID and password, and proceeded to make changes which would not only prevent F.G. from accessing her account, but would also prevent her from being alerted to these changes. For example, during that session, he changed F.G.'s log-in ID from "[F.G.]" to "[F.2007G.]," changed her password, changed her security questions, changed her account address (including zip code) and telephone number,*fn4 and changed her email address.*fn5 (7/17/12 RT 47:18-51:6; 56:24-57:4; 58:15-60:22; Exs. 3, 7, 8, 43, 50).*fn6
That same day, September 11, 2007, Defendant accessed F.G.'s Bank of America account online without authorization six times. (7/17/12 RT 56:11-19; Exs. 3, 7). After making the above-described security changes, Defendant had exclusive online access to F.G.'s account and did the following in the account, among other things:
! Defendant viewed and printed records of F.G.'s checking account activities from May through September 10, 2007; the first page of each of the statements reflects that $330.67 was the "Available balance as of 09/11/2007." (7/17/12 RT 44:14-23; 56:9-58:25; Exs. 7, 43).
! Defendant printed an image of a check F.G. had written to her mother in the amount of $300.00, which posted on September 5, 2007. (7/17/12 RT 44:24-45:23; Exs. 7, 43).
! Defendant used the online "bill pay" feature to set up a single payment in the amount of $330.67 to be issued from the account payable to F.G.'s mother. (Ex. 1; Ex. 7, p.2, row 77;*fn7 Ex. 21, p.2). ! Defendant used the online "bill pay" feature to set up a "recurring payment" in the amount of $555.55*fn8 to be issued from the account and sent to F.G.'s mother. (Ex. 7, p.2, row 87; Ex. 21, p.2). (A "recurring payment" is automatically issued from the account on a continuing basis for the amount and length of time requested (i.e. monthly, biweekly) until it is cancelled by the account holder.) (7/17/12 RT 58:1-14; Ex. 3).
! Defendant used the online "bill pay" feature to set up a single payment in the amount of $555.55 to be issued from the account to F.G.'s friend, A.A. (Ex. 7, p.4, Row 180; Ex. 21, p.2).*fn9
! Defendant used the online "bill pay" feature to set up another "recurring payment," this time in the amount of $255.55 to be issued from the account. (Ex. 7, p.4, Row 190; 7/17/12 RT 58:1-14).*fn10
F.G. did not conduct or authorize any of the above activities with her Bank of America account. (7/17/12 RT 148:8-154:3).
On September 12, 2007, Defendant did the following: ! Defendant sent
another email to F.G. from firstname.lastname@example.org: "Today it all starts
to fall to pieces for you. Great! I cant wait for the crying bitch to
come out." (Ex. 17, BS 1909). ! Defendant sent two messages to J.B. on
J.B.'s Myspace account disparaging F.G. in an attempt to persuade J.B.
to cease all contact with F.G. (Exs. 45-46). ! Defendant created the
email address: truth.about.[f.g.]@hotmail.com. (Ex. 18). ! Defendant
posted a letter and pornographic photographs of
F.G. on the door of what Defendant evidently thought was J.B.'s
residence but which was, in fact, J.B.'s former residence.*fn11
(Ex. 18, BS 1922).
On Friday, September 13, 2007, Defendant sent F.G. another email from email@example.com: "Tomorrow will we [sic] worse." (Ex. 17, BS 1911).
Also on September 13, 2007, Defendant used F.G.'s username and password without her knowledge or authorization to access F.G.'s Hotmail account, firstname.lastname@example.org ("F.G.'s Hotmail account"), and sent F.G. an email from her own Hotmail account, stating: "Quit trying. You're not intelligent enough to figure it out." (Ex. 25).*fn12 F.G.'s Hotmail account was the email account she used for personal, non-work related communications. (7/17/12 RT 102:24-103:8). F.G. never gave her username or password for her Hotmail account to Defendant, and never authorized him to access her Hotmail account or make any changes to the account. (7/17/12 RT 103:9-23).*fn13
In addition, on September 13, 2007, Defendant used F.G.'s username and password without her knowledge or authorization to access F.G.'s Amazon.com account and made the following three purchases totaling $7,004.00 using F.G.'s Citibank Mastercard associated with her Amazon account: (1) a dining table and four chairs for $2,598.00; (2) a ruby ring for $2,899.00; and (3) a Sony large screen television for $1,507.14. The items were to be shipped to the address on record for the account, which was F.G.'s home address (where she lived with her parents). (7/17/12: 130:25-132:9, 187:5-189:13, Ex. 33). F.G.'s available credit on her Citibank Mastercard as of September 11, 2007, was $6,774. (7/17/12 RT 130:3-132-9; Ex. 22). F.G. did not authorize Defendant to access her Amazon.com account or make those purchases. (7/17/12 RT 131:6-132:9).*fn14
Also on September 13, 2007, Defendant created email account email@example.com*fn15 and sent a series of emails from that account to F.G.'s father, who was then in Japan. (Ex. 19). In his emails to F.G.'s father, Defendant (anonymously) stated that F.G. had been lying to her parents about her whereabouts, that F.G. was having "unprotected sex with an unavailable stranger" named "Jesse" (J.B.), that she was having unprotected sex with "other guys," and that a doctor believed F.G. was pregnant and had venereal disease. (Ex. 19, BS 2107, 2148, 2303). As proof of the "truth" of what Defendant was claiming about F.G., Defendant attached six photographs depicting F.G. nude or engaging in sexual acts, which Defendant had taken during their relationship. (Ex. 19, BS 1951). Defendant falsely claimed that the attached photographs were ...