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Media Alerts - United States v. Gilberto Valle
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December 4, 2015
  United States v. Gilberto Valle
Headline: Second Circuit, Finding That "Cannibal Cop" Lacked the Specific Intent to Engage in Kidnapping Conspiracy, Affirms His Acquittal.

Area of Law: Criminal

Issues Presented: Whether the District Court appropriately concluded that the Defendant lacked the specific intent to form a kidnapping conspiracy. Whether the District Court properly concluded that the Defendant's use of a government computer to obtain information that was not related to his duties as a police officer violated the Computer Fraud and Abuse Act.

Brief Summary: Gilberto Valle, a New York City Police Officer, was an active member of an internet community known as as the "Dark Fetish Network." ("DFN"). Valle and other members of this community would regularly communicate their desire to satisfy their sexual fetishes by "kidnapping, torturing, cooking, raping, murdering, and cannibalizing various women." Valle was arrested and charged with conspiracy to kidnap a number of the women mentioned in his online conversations. Additionally, Valle was charged with using his position as a New York City Police Officer to improperly access a government computer, in violation of Section 1030(a)(2)(B) of the Computer Fraud and Abuse Act. ("CFAA"). Following a jury trial in the United States District Court for the Southern District of New York, Valle was convicted on both counts. Following the trial, District Judge Gardephe granted Valle's motion for judgment of acquittal on the conspiracy charge, and denied Valle's motion on the CFAA charge. On appeal, the Second Circuit affirmed the acquittal on the conspiracy count, concluding that there was insufficient evidence of a genuine agreement to kidnap and of Valle's specific intent to commit a kidnapping. Additionally, the Second Circuit reversed the conviction on the CFAA count, ruling that the statute only criminalizes situations where a person accesses a computer to obtain information that he is not entitled to view for any purpose. To read the full opinion, please visit ">http://www.ca2.uscourt.../de.....b/2/hilite/


Significance: Second Circuit adds to circuit split over the interpretation of "exceeds authorized access" in the Computer Fraud and Abuse Act.

Extended Summary: To prove the existence of a conspiracy, the government must prove beyond a reasonable doubt that the defendant knew of the conspiracy, and participated in it. Moreover, the defendant must have specific intent to commit the underlying offense (here, kidnapping). During his involvement with the Dark Fetish Network ("DFN"), Valle communicated with twenty-four different individuals on DFN; in those messages, he expressed a desire to kidnap, rape, torture, and cannibalize various women.

On appeal, in a 2-1 split, the Second Circuit rejected the government's contention that Valle had shown a specific intent to engage in a kidnapping conspiracy through any of his communications on the DFN. The Court found it significant that at Valle's trial, the government had pointed to Valle's communications with only three other DFN members as evidence of his intent to engage in a kidnapping conspiracy. In doing so, the government apparently acknowledged that Valle's other communications were fantastical. The government attempted to distance itself from this theory on appeal by arguing that it had never drawn a firm distinction between Valle's communications. However, the Court noted that "[o]nce the Government constructs its case around the theory that a certain group of chats permits the inference of conspiratorial intent while another group of essentially similar chats is consistent with non-criminal behavior, some adequate explanation must be forthcoming."

Valle's most specific actions involved chats with another DFN user, "Moody Blues," in which the two expressed a desire to kidnap, torture, and cannibalize Valle's friend, Kimberly Sauer. During the course of his communications, Valle sent a document to Moody Blues detailing how the kidnapping would unfold. The document included Sauer's photograph and some other accurate information about her (such as her age); it also included false information about her, such as her last name, date of birth, birthplace, and educational history. The document also identified a specific date when the kidnapping would be carried out. The government claimed that these actions demonstrated Valle's intent to engage in a conspiracy to kidnap Sauer. Moreover, Valle used his friendship with Sauer to arrange a lunch meeting, which the government claimed was an act of surveillance in anticipation of the kidnapping. The majority of the Second Circuit rejected these arguments, finding that these acts were not fundamentally different from the fantasies that Valle expressed in his other communications. The Court expressed doubt that Valle ever intended to follow through on the plan to kidnap Sauer, pointing out that Valle had deliberately concealed Sauer's full name and address from Moody Blues. Moreover, the communications between Valle and Moody Blues about Sauer stopped over a month before the proposed kidnapping date of September 2, 2012. As a result, the Court affirmed the District Court's judgment of acquittal on the conspiracy charge.

The majority also concluded that Valle's conduct did not fall under the CFAA. 18 USC § 1030(a)(2)(B) makes it a crime to "intentionally access a computer without authorization or exceeds authorized access and thereby obtains information . . . from any department or agency of the United States. It was undisputed that Valle had used his position as a police officer to access the National Crime Information Center ("NCIC") in order to access information about Maureen Hartigan, one of the women that he had fantasized about kidnapping.

Whether or not Valle conduct violated the statute hinged on the interpretation of the phrase "exceeds authorized access." The Second Circuit noted that this issue has dived the Courts of Appeals, with the Fourth and Ninth Circuits adopting a narrow interpretation of "exceeds authorized access," while the First, Fifth, Seventh, and Eleventh Circuits have adopted a broader interpretation. The broader interpretation is that the term "exceeds authorized access" applies when an individual accessed a computer, with an improper purpose, in order "to obtain or alter information that he is otherwise authorized to access." The narrower interpretation is the user only "exceeds authorized access" by obtaining or altering "information that he does not have authorization to access for any purpose which is located on a computer that he is otherwise authorized to access." In other words, Valle's contention was that he did not violate the statute because he was allowed to access the NCIC as a police officer, even though the reason why he accessed the site was not for a legitimate law enforcement purpose. Finding that both the government and Valle had proposed plausible interpretations of the statute, the Court applied the rule of lenity, and interpreted the statute in Valle's favor. As a result, the Court vacated Valle's conviction under the CFAA.

Dissent: Judge Straub argued that the District Court erred by granting Valle's judgment of acquittal, and should have been reversed. Additionally, the dissent argued that Valle's use of the NCIC database violated 18 USC S 1030 (a)(2)(B), and thus that conviction should have been affirmed. The dissent focused largely on Valle's expressed intent to kidnap Sauer as evidence of his guilt on the conspiracy charge. Judge Straub noted that the communications between Valle and Moody Blues expressed an intent to engage in a conspiracy to kidnap Sauer, and that Valle took acts in furtherance of the conspiracy by meeting Sauer for lunch and compiling a "blueprint" for how the abduction would take place. Viewed in a light most favorable to the jury verdict - conviction - Judge Straub reasoned that there was enough evidence for a reasonable jury to find Valle guilty of conspiracy to kidnap Sauer, even though he ultimately did not go through with it.

Judge Straub also argued that Valle's action of accessing the NCIC in order to obtain information about Hartigan violated the plain language of 18 USC S 1030 (a)(2)(B). Unlike the majority, the dissent found that the term "exceeds authorized access" was plain and unambiguous. Valle was only authorized to access the NCIC database in furtherance of his duties as a police officer and there was no dispute that Valle's purpose of accessing the NCIC was not in furtherance of his duties. As such, it was beyond the scope of his authorized access.

Panel: Judges Straub, Parker, and Carney.

Argument Date: May 12, 2015

Argument Location: New York, NY

Date of Issued Opinion: December 3, 2015

Docket Number: No. 14¿2710¿cr and No. 14¿4396¿cr

Decided: Affirmed in Part and Reversed in Part.

Case Alert Author: Brian Byrne

Counsel: JUSTIN ANDERSON AND RANDALL W. JACKSON (Hadassa Waxman and Brooke Cucinella, of counsel), Assistant United States Attorneys for Preet Bharara, United States Attorney for the Southern District of New York, New York, New York, for Appellant/Appellee.
EDWARD S. ZAS (Robert M. Baum and Julia L. Gatto, of counsel), Federal Defenders of New York, Inc., New York, New York, for Defendant¿ Appellee/Defendant¿Appellant Gilberto Valle.
Eugene Volokh (Hanni Fakhoury and Jamie Williams, Electronic Frontier Foundation, San Francisco, California, on the brief), Scott & Cyan Banister First Amendment Clinic, UCLA School of Law, Los Angeles, California, for Amici Curiae Electronic Frontier Foundation, Center for Democracy & Technology, Marion B. Brechner First Amendment Project, National Coalition Against Censorship, Pennsylvania Center for the First Amendment, and Law Professors.
Stephen L. Braga, Appellate Litigation Clinic, University of Virginia School of Law, Charlottesville, Virginia, for Amici Curiae Frederick S. Berlin, M.D., Ph.D., and Chris Kraft, Ph.D.
Hanni Fakhoury and Jamie Williams (Richard D. Willstatter, National Association of Criminal Defense Lawyers, White Plains, New York, and Harley Geiger, Center for Democracy & Technology, Washington, D.C., on the brief), Electronic Frontier Foundation, San Francisco, California, for Amici Curiae Electronic Frontier Foundation, Center for Democracy & Technology, National Association of Criminal Defense Lawyers, and Scholars.

Author of Opinion: Judge Parker (majority); Judge Straub (dissent)

Circuit: Second Circuit

    Posted By: Emily Waldman @ 12/04/2015 10:32 AM     2nd Circuit  

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