Date: 12-04-2015

Case Style: United States of America v. Gilberto Valle

Case Number: 14‐2710‐cr and No. 14‐4396‐cr

Judge: Barrington D. Parker

Court: United States Court of Appeals for the Second Circuit on appeal from the Southern District of New York (New York County)

Plaintiff's Attorney: 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.

Defendant's Attorney: 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.

Description: This is a case about the line between fantasy and criminal
intent. Although it is increasingly challenging to identify that line in
the Internet age, it still exists and it must be rationally discernible in
order to ensure that “a person’s inclinations and fantasies are his
own and beyond the reach of the government.” Jacobson v. United
States, 503 U.S. 540, 551–52 (1992). We are loathe to give the
government the power to punish us for our thoughts and not our
actions. Stanley v. Georgia, 394 U.S. 557, 565 (1969). That includes the
power to criminalize an individual’s expression of sexual fantasies,
no matter how perverse or disturbing. Fantasizing about
committing a crime, even a crime of violence against a real person
whom you know, is not a crime.
This does not mean that fantasies are harmless. To the
contrary, fantasies of violence against women are both a symptom of
and a contributor to a culture of exploitation, a massive social harm
that demeans women. Yet we must not forget that in a free and
functioning society, not every harm is meant to be addressed with
the federal criminal law. Because “[t]he link between fantasy and
intent is too tenuous for fantasy [alone] to be probative,” United
States v. Curtin, 489 F.3d 935, 961 (9th Cir. 2007) (en banc) (Kleinfeld,
J., concurring), and because the remaining evidence is insufficient to
prove the existence of an illegal agreement or Valle’s specific intent
to kidnap anyone, we affirm the district court’s judgment of
acquittal on the single count of conspiracy to kidnap.
In an issue of first impression that has sharply divided our
sister circuits, we must also decide the meaning of “exceeds
authorized access” in section 1030(a) of the Computer Fraud and
Abuse Act (“CFAA”), which imposes both criminal and civil
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No. 14‐2710‐cr, 14‐4396‐cr
liability. 18 U.S.C. § 1030. Specifically, we must determine whether
an individual “exceeds authorized access” to a computer when, with
an improper purpose, he accesses a computer to obtain or alter
information that he is otherwise authorized to access, or if he
“exceeds authorized access” only when he obtains or alters
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. Because we conclude that the text, statutory
history, and purpose of the CFAA permit both interpretations, we
are required to apply the rule of lenity and adopt the latter
construction. We therefore reverse the judgment of conviction as to
the CFAA count.
BACKGROUND
Gilberto Valle is a native of Forest Hills, Queens. At the time
of the events giving rise to his prosecution, he was an officer in the
New York City Police Department living with his wife, Kathleen
Mangan, and their infant daughter in Forest Hills. Valle has no prior
criminal record and there is no evidence that he ever acted violently
or threateningly towards anyone.
Valle was, however, an active member of an Internet sex fetish
community called Dark Fetish Network (“DFN”). He connected
with individuals around the world whom he knew only by screen
names such as “Moody Blues” or “Aly Kahn,” or by email addresses.
Valle communicated with these individuals by email or web chat,
usually in the late evening and early morning hours after his work
shift. Many of his Internet communications involved the
transmission of photographs of women he knew – including his
wife, her colleagues from work, and some of his friends and
acquaintances – to other DFN users with whom he discussed
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No. 14‐2710‐cr, 14‐4396‐cr
committing horrific acts of sexual violence. These “chats” consisted
of gruesome and graphic descriptions of kidnapping, torturing,
cooking, raping, murdering, and cannibalizing various women.
Valle’s online fantasy life was, to say the least, extremely
active during this period. However, there is no evidence that he
ever learned the real identities of the individuals with whom he
chatted, nor is there any evidence that he ever made concrete plans
to meet in person or speak by telephone or web camera with any of
them.
In September 2012, Mangan became concerned about Valle’s
late‐night Internet activities after she found several disturbing
images of dead women on a laptop that the couple shared. She
installed spyware on the computer, which recorded each website
entered by the computer’s users and captured screen shots every
five minutes. With the use of the spyware, Mangan found more
disturbing pictures and records of websites that Valle visited. These
included detailed emails and chats where Valle discussed
butchering her and raping and torturing other women whom they
knew. After confronting Valle about his computer use and moving
out of the home with their daughter, Mangan contacted federal
authorities.
Valle was subsequently arrested and charged with a single
conspiracy to kidnap several of the women who were the subject of
his chats. Although he had chatted with numerous individuals he
met on DFN, the Government identified three alleged
co‐conspirators: Michael VanHise, a man from New Jersey who was
known to Valle as “mikevanhise81@aol.com” and
“michael19902135@yahoo.com”; an unidentified individual
apparently located in Pakistan who used the screen name “Aly
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No. 14‐2710‐cr, 14‐4396‐cr
Khan”; and Dale Bolinger, a man in England who was known to
Valle only by his screen name, “Moody Blues.” And although Valle
had discussed up to one hundred different women in his chats, the
indictment alleged five targets of the kidnapping conspiracy:
Kathleen Mangan, his wife; Alisa Friscia, Mangan’s former
co‐worker; Andria Noble; Kristen Ponticelli; and Kimberly Sauer, a
former college classmate of Valle’s who was living in the Baltimore
area.
Valle was also charged with improperly accessing a
government computer and obtaining information, in violation of
section 1030(a)(2)(B) of the CFAA. As an NYPD officer, Valle had
access to the Omnixx Force Mobile (“OFM”), a computer program
that allows officers to search various restricted databases, including
the federal National Crime Information Center database, which
contain sensitive information about individuals such as home
addresses and dates of birth. It is undisputed that the NYPD’s
policy, known to Valle, was that these databases could only be
accessed in the course of an officer’s official duties and that
accessing them for personal use violated Department rules. In May
2012, he accessed the OFM and searched for Maureen Hartigan, a
woman he had known since high school and had discussed
kidnapping with Aly Khan. This access with no law enforcement
purpose is the basis for the CFAA charge.
The Government’s evidence at trial included the chats and
emails between Valle and his alleged co‐conspirators; testimony
from several of the alleged targets of the kidnapping conspiracy,
including his wife; other evidence seized from Valle’s computer,
including videos and images he downloaded; his search term and
browser history; and excerpts from a post‐arrest statement.
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No. 14‐2710‐cr, 14‐4396‐cr
Following a 13‐day trial, the jury returned a verdict of guilty on both
counts. Valle subsequently moved for a judgment of acquittal
pursuant to Rule 29 or, in the alternative, for a new trial pursuant to
Rule 33 on both counts.
In a thorough and thoughtful 118‐page opinion, the district
court (Gardephe, J.) granted Valle’s Rule 29 motion with respect to
the conspiracy charge. 301 F.R.D. 53 (S.D.N.Y. 2014). While
remaining “mindful of the jury’s critical role in our legal system,”
Judge Gardephe acknowledged his responsibility to ensure that the
government satisfies its burden of establishing proof beyond a
reasonable doubt. Id. at 80. Emphasizing “the unique circumstances
of this extraordinary case,” he concluded that, notwithstanding the
jury’s verdict to the contrary, the prosecutors had failed to prove
beyond a reasonable doubt that Valle and his alleged co‐conspirators
had entered into a conspiracy to kidnap or that Valle had formed the
requisite specific intent to kidnap. Id. at 62, 89.
In reaching this conclusion, Judge Gardephe cited extensively
to the testimony of FBI Special Agent Corey Walsh, the lead agent
assigned to review and analyze Valle’s emails and chats whose
testimony had formed (in the court’s view) the “centerpiece” of the
Government’s case and the “foundation” of its argument that Valle
had acted with criminal intent. Id. at 83–84. Agent Walsh testified
that he, along with prosecutors and other case agents, reviewed all
of the emails and chats found on Valle’s computer and concluded
that Valle’s conversations with 21 of the 24 individuals whom he
“met” on DFN were “fantasy.” SA 8, 128. At the same time, the
prosecution team concluded that Valle’s conversations with the
three alleged co‐conspirators contained what they termed “elements
of real crime” because they “described dates, names, and activities
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No. 14‐2710‐cr, 14‐4396‐cr
that you would use to conduct a real crime.” 301 F.R.D. at 65. There
was no evidence that Agent Walsh or any of the other members of
the prosecution team had any specialized training or experience that
would render them particularly competent to distinguish between
“real” and “fantasy” chats. Indeed, Agent Walsh conceded that the
“fantasy role‐play” chats and emails shared many of the same
features as the “real” chats and emails that purportedly reflected
criminal intent, including dates for planned kidnappings, conjured
acts of sexual violence, prior surveillance that Valle fantasized about
having conducted, and fantastical elements such as human‐sized
ovens and rotisseries for cooking victims. Id. at 65–66.
After an exhaustive review of the chats and emails introduced
at trial, Judge Gardephe concluded that there was no discernible
difference between the “real” and “fantasy” chats:
Both sets of chats involve discussions about Facebook
photographs of women Valle knows; dates for planned
kidnappings; prices Valle will charge for kidnapping these
women; surveillance Valle has allegedly conducted of these
women; the use of chloroform to incapacitate victims; acts of
sexual violence that will be perpetrated on these women; and
fantastical elements such as human‐size ovens and rotisseries, and
the construction of soundproofed basements and pulley
apparatuses that will be used for purposes of torture.
Id. at 60. Accordingly, he concluded that no reasonable juror could
have found beyond a reasonable doubt that the allegedly “real”
chats evinced criminal intent any more than did the acknowledged
“fantasy” chats. Id. at 84.
The district court further concluded that the Government’s
remaining evidence, including Valle’s Internet search history and
“real life” encounters with several of the alleged targets, was
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No. 14‐2710‐cr, 14‐4396‐cr
insufficient to establish either a genuine agreement to kidnap or
Valle’s specific intent to kidnap in light of the fantastical nature of
the chats and the weakness of the remaining evidence. Id. at 90.
Judge Gardephe stressed, among other things, that there was no
evidence that any of the alleged conspirators ever exchanged contact
information or sought to learn each other’s true identities, and that
the communications were episodic, with months often passing in
between. Id. at 60. When dates for planned kidnappings came and
went, Valle and his alleged co‐conspirators would “simply begin
discussing another woman as a potential target, in the same manner
that a consumer of pornography might turn to a different image,
photograph, or movie.” Id. at 89. They also had agreed to the
impossible – kidnapping three different women in three different
places spanning thousands of miles on the same day – and Valle had
“provided his alleged co‐conspirators with a veritable avalanche of
false, fictitious, and fantastical information concerning himself and
the steps he had allegedly taken to facilitate a kidnapping.” Id. at 61,
90. These facts, Judge Gardephe reasoned, were “entirely
inconsistent with the notion that Valle was engaged in a genuine
kidnapping conspiracy” and, on the other hand, “entirely consistent
with Valle’s defense that he was engaged in fantasy role‐play” and
that the intent of the conversations was simply “mutual fantasizing.”
Id. at 60, 90. Accordingly, Judge Gardephe concluded that the
Government’s proof had not established Valle’s guilt beyond a
reasonable doubt and granted Valle’s motion for a judgment of
acquittal.
For many of the same reasons, Judge Gardephe conditionally
granted Valle’s motion for a new trial on the ground that the jury’s
verdict was contrary to the weight of the evidence. Id. at 104.
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No. 14‐2710‐cr, 14‐4396‐cr
Although the basis for his ruling was limited to the weight of the
evidence, Judge Gardephe also expressed serious concern about the
prosecution’s trial tactics and the effect they may have had on the
jury. Specifically, he questioned the propriety of the prosecution’s
repeated references to Valle’s status as a police officer, such as
arguments that “it is not ok” for someone in that position to engage
in such fantasies. “Once the lies and the fantastical elements [of the
chats] are stripped away,” Judge Gardephe concluded, “what is left
are deeply disturbing misogynistic chats and emails written by an
individual obsessed with imagining women he knows suffering
horrific sex‐related pain, terror, and degradation.” Id. at 61. “[I]n
what was an extraordinary case involving highly inflammatory and
emotional subjects,” the prosecution’s questionable conduct had
“raise[d] concerns” that the jury’s verdict was the product of
“disgust and revulsion” rather than reason and that Valle had been
“held to a higher standard because of his status as a police officer.”
Id. at 105–07, 109.
Finally, the district court denied Valle’s motion for a judgment
of acquittal as to the CFAA count. While acknowledging the
existence of a “vigorous judicial debate” over the meaning of
“exceeds authorized access,” the court nonetheless concluded that
Valle’s conduct fell “squarely within the plain language” of the
statute because Valle had not been authorized “to input a query
regarding Hartigan’s name” without a law enforcement reason for
doing so. Id. at 111, 113.
Valle was sentenced to 12 months in custody (which was
principally a sentence of time served because he had already spent
20 months in pretrial detention), one year of supervised release, and
a $25 special assessment. The Government has appealed the
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No. 14‐2710‐cr, 14‐4396‐cr
judgment of acquittal on the conspiracy count and Valle has
appealed his conviction on the CFAA count.
STANDARD OF REVIEW
When reviewing a judgment of acquittal under Rule 29, we
view the evidence in the light most favorable to the Government
with all reasonable inferences resolved in the Government’s favor.
United States v. Anderson, 747 F.3d 51, 60 (2d Cir. 2014). The ultimate
question is not whether we believe the evidence adduced at trial
established the defendant’s guilt beyond a reasonable doubt, but
whether any rational trier could reasonably reach that conclusion.
United States v. Payton, 159 F.3d 49, 56 (2d Cir. 1998) (citing Jackson v.
Virginia, 443 U.S. 307, 319 (1979)). Accordingly, a jury’s verdict must
be upheld if any rational trier of fact could have found the essential
elements of the crime had been proved beyond a reasonable doubt.
United States v. Coplan, 703 F.3d 46, 62 (2d Cir. 2012).
Applying this standard does not, however, mean that a
reviewing court must affirm all jury verdicts. If “we are to be
faithful to the constitutional requirement that no person may be
convicted unless the Government has proven guilt beyond a
reasonable doubt, we must take seriously our obligation to assess
the record to determine . . . whether a jury could reasonably find guilt
beyond a reasonable doubt.” United States v. Clark, 740 F.3d 808, 811
(2d Cir. 2014). This standard does not mean that if there is any
evidence that arguably could support a verdict, we must affirm. In
any criminal trial there is always some evidence of guilt, otherwise
there could not have been a prosecution.
While we defer to a jury’s assessments with respect to credibility,
conflicting testimony, and the jury’s choice of the competing
inferences that can be drawn from the evidence, specious
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No. 14‐2710‐cr, 14‐4396‐cr
inferences are not indulged, because it would not satisfy the
Constitution to have a jury determine that the defendant is
probably guilty. If the evidence viewed in the light most favorable
to the prosecution gives equal or nearly equal circumstantial
support to a theory of guilt and a theory of innocence, then a
reasonable jury must necessarily entertain a reasonable doubt.
United States v. Lorenzo, 534 F.3d 153, 159 (2d Cir. 2008). We review
the district court’s Rule 29 decision de novo. United States v. Reyes,
302 F.3d 48, 52–53 (2d Cir. 2002).
DISCUSSION
I
To sustain a conspiracy conviction, the prosecution must
prove beyond a reasonable doubt that the person charged with
conspiracy knew of its existence and knowingly joined and
participated in it. United States v. Rodriguez, 392 F.3d 539, 545 (2d
Cir. 2004). The Government must also prove, beyond a reasonable
doubt, that the defendant possessed the specific intent to commit the
offense that was the object of the conspiracy – here, kidnapping.
United States v. Torres, 604 F.3d 58, 65 (2d Cir. 2010). This
requirement is contextual: the prosecution’s proof must be
considered in relation to the rest of the evidence presented at trial,
rather than in isolation. Anderson, 747 F.3d at 59.
At trial, the prosecution built its case around Valle’s chats and
emails with his alleged co‐conspirators. On appeal, it argues that
these communications, “taken at face value, were fully sufficient to
establish his intent to join a kidnapping conspiracy.” Gov’t Opening
Br. 32. We disagree.
As previously explained, Valle’s chats and emails with the
three alleged co‐conspirators were part of a much larger set of chats
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No. 14‐2710‐cr, 14‐4396‐cr
and emails with 24 individuals on DFN. According to the
prosecution, the former were unique because they evinced “real”
criminal intent while the rest did not. After reviewing the chats and
emails introduced at trial, the district court concluded that the “real”
and “fantasy” chats were indistinguishable. 301 F.R.D. at 86.
Our review of the record yields the same conclusion. In both
groups of chats, Valle transmits Facebook images of women and
offers to kidnap and sell them on a “cash upon delivery” basis, and
in both groups he expresses a desire to kidnap, rape, torture, and eat
women whom he knows. In both groups Valle also claims to
conduct surveillance of potential victims and discusses his intentions
to kidnap them using chloroform and ropes. And in both groups he
describes the various devices he “owns” that will assist in the
process. Many of the “fantasy” chats also do not explicitly state that
the participants are engaged in fantasy and are as graphic and
detailed as the “real” chats. For example, the “real” chats and the
“fantasy” chats both include haggling over the kidnapping fees that
Valle “wanted to charge,” although the prosecution argues that this
haggling is unique to the “real” conspiracy with VanHise. See id. at
84. The “real” chats thus contain the same core elements as the chats
the Government concedes are “fantasy.”1
Moreover, the “real” chats take place in the same time period
as the admittedly “fantasy” chats. On the evening of July 12, 2012,
1 In a “fantasy” chat with “Tim Chase,” for example, Valle and Chase agree to
kidnap a woman on January 27, 2012. Valle supplies real pictures of the
woman, they agree upon a price of $4,000 for Valle’s services, and Valle states
that the woman goes to the gym nightly and that he has kept a log of when she
leaves and returns home. The two also agree upon a location “a hundred miles
east of Erie” as the place of delivery. As Judge Gardephe found, there are no
material differences between these chats with Chase, the fantasist, and Valle’s
chats with VanHise, the alleged co‐conspirator. 301 F.R.D. at 86–87.
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No. 14‐2710‐cr, 14‐4396‐cr
for instance, Valle discusses kidnapping Andria Noble with Aly
Khan in a “real” chat and, an hour later, discusses kidnapping Noble
with someone else in a chat that was “fantasy.” The prosecution
thus proposed that Valle simultaneously agreed to kidnap Noble
while also engaging in role‐play about the same woman. This
temporal proximity casts further doubt upon any rational distinction
between the chats.
Even when “taken at face value,” the “real” chats contain
numerous other indicia of fantasy. For example, the prosecution
alleged that Valle formed a genuine agreement with the specific
intent to kidnap three different women in three different locations
on the same day. First, Valle agreed with Aly Khan to lure Mangan
to either India or Pakistan on February 20, 2012 and to slaughter her
there. Second, he agreed with VanHise to kidnap Alisa Friscia in
Manhattan on February 20, 2012 and deliver her to an unknown
location in exchange for $4,000 in cash. Finally, Valle agreed with
Aly Khan to kidnap Andria Noble on February 20, 2012 from her
home in Columbus, Ohio. On appeal, the prosecution posits that the
jury could have reasonably concluded that Valle seriously planned
to kidnap Mangan, Friscia, and Noble on the same day and failed to
go through with the kidnappings only because “an obstacle arose,”
or because he had a “fear of getting caught.” Gov’t Opening Br. 54.
We believe that no rational juror could reach this conclusion for the
reason noted by Judge Gardephe: “The notion that Valle had
resolved to lure Mangan to India or Pakistan [to slaughter with Aly
Khan,] while at the same time kidnapping Andria Noble in
Columbus, Ohio, and kidnapping Alisa Friscia from the Upper East
Side of Manhattan, is simply outlandish.” 301 F.R.D. at 90.
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No. 14‐2710‐cr, 14‐4396‐cr
In addition to plots that would put the same person in
different places at the same time, the “real” chats are replete with
references to fantastical elements such as a human‐sized oven, a spit,
and a remote cabin in the woods, none of which Valle owned or
made any effort to acquire. The fantastical nature of the “real” chats
is bolstered by the entirely virtual nature of the alleged conspirators’
relationships. Valle had no pre‐existing relationship with those with
whom he chatted, and he formed no real life relationship with any of
them. He did not know their real names and, indeed, could not be
sure of their genders, ages, or locations. Neither he nor his alleged
co‐conspirators made any effort to communicate by telephone, text
message, or web camera, much less meet in person. And weeks or
months could go by between Valle’s chats with any particular
individual. While anonymity is not uncommon in Internet
communications, the fantastical elements of the chats combined with
the impersonal nature of the interactions provides pervasive and
unmistakable indicia of deep fantasy.2
Consequently, we need look no further than the prosecution’s
own work product to find reasonable doubt. The prosecution
divided the exchanges into two groups and undertook to convince
the jury to convict Valle on the theory that one group was fantasy
and the other proved criminal intent. This exercise failed because
2 As Judge Richard Posner observed in another case involving an individual
engaged in sexually graphic online communications with strangers, the
defendant “may have thought (this is common in Internet relationships) that
they were both enacting a fantasy.” United States v. Gladish, 536 F.3d 646, 650
(7th Cir. 2008). Indeed, in Gladish the Seventh Circuit reversed a conviction for
attempt to induce a minor to engage in sexual activity because “[the
defendant’s] talk and his sending her a video of himself masturbating (the
basis of his unchallenged conviction for violating 18 U.S.C. § 1470) [we]re
equally consistent with his having intended to obtain sexual satisfaction
vicariously.” Id.
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No. 14‐2710‐cr, 14‐4396‐cr
the distinction the prosecution urged does not exist in this case.
There is simply no material difference between the two groups of
chats. We do not believe that the prosecution satisfies the proof
beyond a reasonable doubt standard by relying upon a distinction
that is untethered to reason or common sense.
Perhaps realizing that there is no actual distinction to be
drawn between the “real” and “fantasy” chats, the prosecution now
contends that it “did not take a position one way or the other as to
whether [Valle’s online communications with people other than the
named co‐conspirators] constituted genuine planning, puffery,
preparatory conversations, role‐playing, or something else entirely.”
Gov’t Opening Br. 39. The record, however, belies this assertion.
As noted, Agent Walsh was a key witness in the prosecution’s
case. He was the lead investigative agent and a majority of the chats
and emails introduced were admitted into evidence through his
testimony. He unequivocally testified, often in response to the
Government’s own questions, that the Government considered
Valle’s chats with 21 other individuals to be “fantasy” and Valle’s
chats with the three alleged co‐conspirators to be “real.” The
following exchanges between Agent Walsh and AUSA Hadassa
Waxman on direct examination are illustrative:
WAXMAN: When you were reviewing those emails between
[Valle] and the two dozen individuals, did you separate them into
groups?
WALSH: I did.
WAXMAN: What were those groups?
WALSH: Ones that I believe that were real and ones that I
believe were fantasy.
WAXMAN: Why did you make that separation?
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No. 14‐2710‐cr, 14‐4396‐cr
WALSH: In the ones that I believe were fantasy, the
individuals said they were fantasy. In the ones that I thought
were real, people were sharing . . . real details of women, names,
what appeared to be photographs of the women, details of past
crimes and they also said that they were for real.
WAXMAN: What caused you to make that separation between
the emails you found that had realistic characteristics and those
that were fantasy?
WALSH: Only my interest in obtaining information about
that real criminal activity.
SA 8–9.
WAXMAN: Agent Walsh, approximately how many of Officer
Valle’s emails and electronic chats did you review in connection
with your investigation?
WALSH: Thousands.
WAXMAN: We just reviewed over yesterday and today about
40, is that right?
WALSH: That’s correct, ma’am.
WAXMAN: Why did you focus on these 40 particular
communications?
WALSH: We believed that these chats and e‐mails contained
elements of real crimes.
WAXMAN: And why did you come to that conclusion?
WALSH: They described dates, names, and activities that
you would use to conduct a real crime.
WAXMAN: And did you cast aside a certain number of emails
as well?
WALSH: Yes, ma’am.
WAXMAN: Why did you choose not to focus on those emails?
WALSH: Quite frankly, ma’am, they didn’t seem realistic.
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No. 14‐2710‐cr, 14‐4396‐cr
WAXMAN: Why not?
WALSH: They were clearly role‐play. They used the word
“fantasy” in the actual chats or emails.
SA 125–26. On cross‐examination, Agent Walsh admitted that the
grouping decision was made by numerous agents and prosecutors.
BAUM: Now, when you made that decision that 21 out of
24 participants with Mr. Valle were engaged in fantasy role‐play,
were you the only one who made that decision?
WALSH: No, sir.
BAUM: How many agents were involved in that decision?
WALSH: Approximately eight to 10, sir.
. . .
BAUM: And how many people from the U.S. Attorney’s
Office were involved in that decision?
WALSH: About two, sir.
BAUM: So eight to 10 law enforcement officers and at least
two lawyers from the U.S. Attorney’s Office decided that out of 24
people that Mr. Valle chatted or emailed with[,] 21 were fantasy
role‐plays, is that correct?
WALSH: Approximately. Yes, sir.
SA 129–30. The prosecution now urges that the distinction between
“real” chats and “fantasy” role play was Valle’s defense and that the
district court applied the wrong standard by forcing the prosecution
to disprove the defense theory of the case. As the exchanges above
demonstrate, the distinction was introduced and relied on by the
Government’s case agent. In any event, intent is an essential
element of the crime that the Government charged. The issue,
therefore, is not whether the prosecution disproved the defense’s
theory, but whether the prosecution proved its theory that Valle’s
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No. 14‐2710‐cr, 14‐4396‐cr
“real” chats represented a departure from his otherwise entirely
imaginary world.
Alternatively, the Government argues that even if it
introduced the distinction, it did not rely on or concede the truth of
the distinction because it “did not even introduce any of the ‘fantasy’
conversations at trial so that [a] comparison could be made” with the
“real” chats. Gov’t Opening Br. 41. A sampling of the “fantasy”
chats was introduced by the defense in its cross‐examination of
Agent Walsh. But regardless of how the exhibits were introduced,
the Government’s own investigation concluded that forty chats
permitted the inference of conspiratorial intent, as compared to
myriad other chats that did not. The Government claims that it does
not have to prove a distinction between these two sets of chats
because the jury could have rationally found that “defendants
charged with attempting or conspiring to engage in criminal,
deviant activity often contemporaneously engage in ‘fantasy’
behavior . . . about activity . . . that is similar to the charged
conduct.” Id. at 43.
This contention proves too little. Once 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. Where, as here,
none is, the non‐criminal chats are a powerful indicator that a
reasonable juror must necessarily entertain reasonable doubt about
the prosecution’s case.
Unable to materially distinguish the “real” chats from the
“fantasy” chats, the Government relies on evidence of “real world”
steps that Valle took in order to “prepare” for the kidnappings. See,
20
No. 14‐2710‐cr, 14‐4396‐cr
e.g., Gov’t Opening Br. 56–58, 60–68. For example, the prosecution
introduced evidence that Valle performed Internet searches for how
to kidnap people, how to make chloroform, and how to restrain and
cannibalize people. The prosecution also introduced evidence that
Valle researched prior kidnappings, which it argues permitted the
jury to infer that Valle was interested in how those kidnappers were
caught so that he could learn from their experiences and avoid
apprehension. Id. at 63.
To be sure, Internet searches can provide some relevant proof
of intent. However, an Internet search, in and of itself, is not
criminal. Here, the searches on which the Government relies
occurred in a context of deep fantasy. As with his chats and emails,
Valle’s Internet searches show that he was interested in committing
acts of sexualized violence against women. Interest may be relevant
evidence of intent, but it does not by itself prove intent. “No doubt
some people commit sex crimes because they want to turn their
fantasies into reality, but most people with criminal fantasies
probably refrain from acting on them, because they know it would
be wrong, or because they do not want to risk the penalties.” Curtin,
489 F.3d at 962 (Kleinfeld, J., concurring).
The Government also relies on at least two occasions when
Valle engaged in acts of “surveillance” of his intended victims. First,
the Government notes that Valle admitted in a post‐arrest statement
that he was on Friscia’s block on March 1, 2012, two days after he
allegedly agreed to kidnap her with VanHise. Gov’t Opening Br.
56–58. Valle told a government agent that he was on the block to
drop off Mangan to have lunch with Friscia, but both Mangan and
Friscia testified that they had not met for lunch that day. Valle
indicated to the agent that he was on the block only very briefly, and
21
No. 14‐2710‐cr, 14‐4396‐cr
there is no evidence to the contrary. There is also no evidence that
he observed Friscia or her apartment building while he was on her
block. Valle’s false exculpatory explanation for being on the block is
“insufficient proof on which to convict where other evidence of guilt
is weak.” United States v. Johnson, 513 F.2d 819, 824 (2d Cir. 1975).
As the district court found, no rational juror could conclude from
this evidence alone that Valle was engaged in “surveillance.”
Second, the prosecution and our dissenting colleague contend
that the jury could convict Valle of a conspiracy to kidnap based on
his communications with Moody Blues about Kimberly Sauer. See
Gov’t Opening Br. 35–36. This evidence is insufficient to show that
Valle agreed or had the specific intent to kidnap Sauer and, in any
event, it does not establish Moody Blues’s intent.
Sauer is a former college classmate of Valle’s who lives in
Maryland. According to Sauer, she communicated with Valle by
text message approximately ten to fifteen times a year. Mangan
testified that she and Valle made three or four trips to Maryland
during the course of their relationship (from 2009 through
September 2012) and that each time she and Valle made an effort to
see Sauer when in the area.
In January 2012, Valle asked Sauer for her address so that he
could send her a Patrolmen’s Benevolent Association card. The
earliest chat between Valle and Moody Blues introduced at trial
takes place seven months later, on July 9, 2012. During this
conversation, Valle described several girls that he was “working on
grabbing . . . for thanksgiving,” and told Moody Blues that
“Kimberly [is] by far the easiest” to kidnap because he could “just
show up at her home unannounced.” JA 80–82. After Valle
suggested that “maybe you can make it here and help me with her,
22
No. 14‐2710‐cr, 14‐4396‐cr
since you have experience,” Moody Blues responded that he lives in
England but it is “easy to get to the Big apple.” JA 81.
Valle also told Moody Blues that he was “single,” had a “big
gas oven,” and that “no one is around [him] for about ¾ of a mile.”
JA 84. The two then discussed how they would truss up Sauer and
cook her on an outdoor spit at Valle’s mountain house. During this
same chat, approximately one hour after Valle wrote that he wanted
to kidnap someone for Thanksgiving, Valle told Moody Blues that
he was “thinking of a Labor Day cookout . . . with Kimberly as the
main course.” JA 86. Valle noted that she had “been one of my
favorite victims to fantasize about for almost 10 years now.” JA 86.
Again during the same chat in early July, Valle sent Moody Blues a
link to a video of Sauer on vacation and volunteered to make
chloroform and buy rope. Moody Blues replied that “Labour day is
the 3rd [of] September, not a lot of time to sort out plane tickets etc.
Will see what cheap deals I can get.” JA 90.
One day later, on July 10, Valle sent Moody Blues “a word
document, a blueprint of everything we will need to carry this out.”
JA 100. The document, entitled “Abducting and Cooking Kimberly:
A Blueprint,” has a “target date” of September 2, 2012 for the
abduction. It includes a photograph of Sauer, and accurately
describes her age and marital status and that she is not a drug user,
does not have tattoos, and drinks only occasionally. All of the other
information in this document is false, including her last name, date
of birth, birthplace, and educational history. The entire “plan” for
abduction set out in the “Blueprint” is as follows: “I will arrive at
some point Sunday night at her home to kidnap her. She lives in a
quiet suburban neighborhood (Pictures of her house to be added).”
The document also lists some materials that are needed, including a
23
No. 14‐2710‐cr, 14‐4396‐cr
car, chloroform, rope, gag, tarp/plastic bags, gloves, and cheap
sneakers. JA 267–68. After receiving the “Blueprint,” Moody Blues
asked “[m]ay I have her address? For Googling using the Map
app?” JA 101. Valle lied that he was “not sure” of her exact address.
Id. There is no evidence in the record that Valle ever obtained any of
the materials listed in the “Blueprint,” or that the document was
ever updated with pictures of Sauer’s house or any additional
information.
At some point prior to July 12, Valle called Sauer to tell her
that he would be traveling to Maryland with his wife and daughter
for a weekend. They made plans to meet for lunch on July 22. On
July 17, Valle informed Moody Blues that he would be having lunch
with Sauer. Later in this chat, Moody Blues asked Valle if he had a
recipe for chloroform. Valle sent him a link. On July 19, Moody
Blues again asked for Sauer’s address, and Valle replied that he did
not know it by heart. Valle never provided Moody Blues with
Sauer’s address.
On July 20, Valle conducted a number of Internet searches
relating to kidnapping, including “how to kidnap someone,” “how
to chloroform a girl,” and “kidnapped girl.” On July 21, Valle
traveled to Maryland with his wife and daughter. They visited
several college friends, and had the scheduled lunch with Sauer on
July 22. On July 21, Valle texted Sauer “[w]e drove by your pink
building today,” and she responded “Haha yay!” JA 237. At trial,
Sauer testified that she understood Valle to refer to her office
building, which has pink‐tinted windows, but that Valle had never
visited her at work and she had never sent him photographs of the
building. She described the lunch as “fine” and “pleasant.”
24
No. 14‐2710‐cr, 14‐4396‐cr
On the evening of July 22, after Valle returned home, he
emailed Moody Blues that Sauer “looked absolutely
mouthwatering.” JA 117. Valle and Moody Blues said nothing more
about the plot to kidnap Sauer and did not talk again for another
month. On August 21, Valle and Moody Blues began to discuss
Kristen Ponticelli, a recent graduate of Valle’s high school whom he
did not know. JA 264. There is no evidence in the record that Valle
and Moody Blues ever discussed Sauer or Ponticelli again after
August 21.
As Judge Gardephe observed, the chats pertaining to Sauer
are not materially different from the other fantasy chats. All of the
elements of this alleged plot are equally fantastical, including the
presence of the nonexistent mountain house, the human‐sized oven,
and the “Blueprint.” The “plan” to kidnap Sauer in the “Blueprint”
is no more detailed than is the “plan” in Valle’s Internet chats with
Moody Blues, nor does the list of materials required differ from the
types of materials Valle discusses in his chats. And critically, Valle
makes concerted efforts to conceal from Moody Blues any
identifying information about Sauer that could be used in furtherance
of a kidnapping such as her last name, date of birth, and the name of
her alma mater. Although the prosecution speculates that Valle did
not share accurate information about Sauer because he did not want
Moody Blues to undertake the kidnapping without him, there is no
evidence in the record to support such an inference.
Thus, the only meaningful difference between this alleged
conspiracy and the “fantasy” chats is the occurrence of Valle’s lunch
with Sauer in Maryland during approximately the same time period
as he discussed kidnapping her with Moody Blues. Although the
Government characterizes Valle’s communications with Sauer as
25
No. 14‐2710‐cr, 14‐4396‐cr
“out of the blue,” the record shows that they communicated by text
message in the year prior to the alleged kidnapping plot on a regular
basis and that they made an effort to see each other when Valle was
in town. Valle did not have lunch with Sauer alone, but rather came
with Mangan and their infant daughter. Moreover, the chats
between Moody Blues and Valle leading up to and following the
lunch make it impossible to conclude, without speculation, that the
lunch was “surveillance” in furtherance of a genuine conspiracy.
Moody Blues makes only a single reference to purchasing plane
tickets in the July 9 chat, but that suggestion is never brought up
again. Except for the e‐mail recapping the lunch on July 22 and the
August 24 conversation in which their focus moves to Ponticelli after
a brief mention of Sauer, Moody Blues and Valle never again discuss
Sauer or any plot to kidnap her. In fact, Moody Blues and Valle do
not speak at all for the month after July 22, and the “target date” of
September 2 passes with no discussion. And Valle never takes any
step of any sort in furtherance of an alleged kidnapping.
We are in accord with the prosecution and our dissenting
colleague that a jury might be able to distill some incriminating
evidence from all of this. But “some” evidence is not the test.
Because Valle’s relationship with Moody Blues is essentially
indistinguishable from his relationship with all of the others with
whom he chatted, we agree with Judge Gardephe that a rational jury
could not conclude that this evidence was sufficient to meet the
“beyond any reasonable doubt” requirement. As our case law
instructs:
[I]t is not enough that the inferences in the government’s favor are
permissible. A court must also be satisfied that the inferences are
sufficiently supported to permit a rational juror to find that [each
element of the offense] is established beyond a reasonable doubt.
26
No. 14‐2710‐cr, 14‐4396‐cr
If the evidence viewed in the light most favorable to the
prosecution gives equal or nearly equal circumstantial support to
a theory of guilt and a theory of innocence, then a reasonable jury
must necessarily entertain a reasonable doubt.
United States v. Triumph Capital Grp., Inc., 544 F.3d 149, 159 (2d Cir.
2008).
Finally, on the basis of this evidence, it is impossible to
determine beyond a reasonable doubt whether Moody Blues – or for
that matter any of Valle’s other alleged co‐conspirators – ever had
the specific intent to commit a kidnapping. We have taken a
bilateral approach to the crime of conspiracy: at least two people
must agree. “When one of two persons merely pretends to agree,
the other party, whatever he may believe, is in fact not conspiring
with anyone.” See United States v. Bicaksiz, 194 F.3d 390, 398 (2d Cir.
1999). The only evidence the Government offers to demonstrate
Moody Blues’s intent is the words he used in the chats. Gov’t Reply
Br. 21–22. As we have explained, these chats of “real” criminal
intent are rife with indicia of fantasy and contain the same
substantive elements as the chats the Government concedes are
“fantasy.” The conclusion that the chats do not support a finding of
Valle’s conspiratorial intent applies with equal force to Moody
Blues.
On this record, no reasonable juror could conclude beyond a
reasonable doubt that Valle possessed the specific intent to kidnap
anyone or that he and his alleged co‐conspirators ever formed an
agreement to actually carry out any of the purported kidnappings.
The mere indulgence of fantasy, even of the repugnant and
unsettling kind here, is not, without more, criminal. We therefore
27
No. 14‐2710‐cr, 14‐4396‐cr
affirm the district court’s judgment of acquittal as to the conspiracy
count.
II
We now turn to Valle’s appeal of the judgment of conviction
on the CFAA count. We reverse because section 1030(a)(2)(B) is
ambiguous and where, as here, the Government and the defense
both posit plausible interpretations of a criminal statute, the rule of
lenity requires us to adopt the defendant’s construction. As Justice
Scalia has emphasized, “[w]hen interpreting a criminal statute, we
do not play the part of a mindreader.” United States v. Santos, 553
U.S. 507, 515 (2008). When “a reasonable doubt persists about a
statute’s intended scope even after resort to the language and
structure, legislative history, and motivating policies of the statute,”
Moskal v. United States, 498 U.S. 103, 108 (1990), we resolve doubts in
favor of the defendant rather than “imputing to Congress an
undeclared will” to criminalize conduct, Santos, 553 U.S. at 515
(quoting Bell v. United States, 349 U.S. 81, 83 (1955)). The rule of
lenity ensures that criminal statutes will provide fair warning of
what constitutes criminal conduct, minimizes the risk of selective or
arbitrary enforcement, and strikes the appropriate balance between
the legislature and the court in defining criminal liability. See Yates
v. United States, 135 S. Ct. 1074, 1088 (2015); United States v. Simpson,
319 F.3d 81, 86 (2d Cir. 2002).
The CFAA imposes criminal and civil liability on one who,
among other things, “intentionally accesses a computer without
authorization or exceeds authorized access and thereby obtains
information . . . from any department or agency of the United
States.” 18 U.S.C. § 1030(a)(2)(B). “Without authorization” is not
defined. However, “‘exceeds authorized access’ means to access a
28
No. 14‐2710‐cr, 14‐4396‐cr
computer with authorization and to use such access to obtain or alter
information in the computer that the accesser is not entitled so to
obtain or alter.” Id. § 1030(e)(6).
The dispositive question is whether Valle “exceeded
authorized access” when he used his access to OFM to conduct a
search for Maureen Hartigan with no law enforcement purpose.
Valle concedes that he violated the terms of his employment by
putting his authorized computer access to personal use, but claims
that he did not violate the statute because he never “used his access
to obtain any information he was not entitled to obtain.” Valle’s
Opening Br. 8. In other words, Valle argues that he did not “exceed
authorized access” because he was otherwise authorized to obtain
the database information about Hartigan; his non‐law enforcement
purpose in running the search is irrelevant. See id. at 9. The
Government contends that Valle “exceeded authorized access”
because his authorization to access OFM was limited to law
enforcement purposes and he conducted a search for Hartigan with
no such purpose.
The critical term – “authorization” – is not defined in the
statute, but we have previously recognized in construing the CFAA
that “authorization” is a word “of common usage, without any
technical or ambiguous meaning.” United States v. Morris, 928 F.2d
504, 511 (2d Cir. 1991). The dictionary defines “authorization” as
“permission or power granted by authority.” Random House
Unabridged Dictionary 139 (2001).3 T h u s , common usage o f
3 See also Black’s Law Dictionary 159 (10th ed. 2014) (defining “authorization”
as “[o]fficial permission to do something”); Webster’s Third International
Dictionary 146 (2002) (defining “authorization” as “the state of being
authorized,” and “authorize” as “to endorse, empower, justify, permit by or as
if by some recognized or proper authority”).
29
No. 14‐2710‐cr, 14‐4396‐cr
“authorization” suggests that one “accesses a computer without
authorization” if he accesses a computer without permission to do so
at all. See, e.g., LVRC Holdings LLC v. Brekka, 581 F.3d 1127, 1133 (9th
Cir. 2009).
Common usage of “authorization” is less helpful in
determining when one “exceeds authorized access” because it can
support both Valle’s and the Government’s interpretation. While
“authorization” could refer, as the Government contends, to the
purposes for which one is authorized to access a computer, it could
alternatively refer to the particular files or databases in the computer
to which one’s authorization extends. Indeed, by its plain terms the
statute is directed to improper “access.” The contested language is
not “exceeds authorization,” however such authorization may be
defined, but the seemingly more limited “exceeds authorized access.”
18 U.S.C. § 1030(a)(2) (emphasis added). Moreover, because
“without authorization” most naturally refers to a scenario where a
user lacks permission to access the computer at all, one sensible
reading of the statute is that “exceeds authorized access” is
complementary, referring to a scenario where a user has permission
to access the computer but proceeds to “exceed” the parameters of
authorized access by entering an area of the computer to which his
authorization does not extend. As Judge Kozinski recognized in
United States v. Nosal, “it is possible to read both prohibitions as
applying to hackers: ‘Without authorization’ would apply to outside
hackers (individuals who have no authorized access to the computer
at all) and ‘exceeds authorized access’ would apply to inside hackers
(individuals whose initial access to a computer is authorized but
who access unauthorized information or files).” 676 F.3d 854, 858
(9th Cir. 2012) (en banc).
30
No. 14‐2710‐cr, 14‐4396‐cr
Over the past fourteen years, six other circuits have wrestled
with the question before us. Most recently, the Ninth Circuit sitting
en banc in Nosal and the Fourth Circuit in WEC Carolina Energy
Solutions LLC v. Miller, 687 F.3d 199 (4th Cir. 2012), adopted Valle’s
construction. Before that, the First, Fifth, Seventh, and Eleventh
Circuits adopted the prosecution’s interpretation. See United States v.
John, 597 F.3d 263 (5th Cir. 2010); United States v. Rodriguez, 628 F.3d
1258 (11th Cir. 2010); Int’l Airport Ctrs., L.L.C. v. Citrin, 440 F.3d 418
(7th Cir. 2006); EF Cultural Travel BV v. Explorica, Inc., 274 F.3d 577
(1st Cir. 2001). If this sharp division means anything, it is that the
statute is readily susceptible to different interpretations.4 We
therefore turn to the legislative history and motivating policies for
further guidance.
Congress enacted the CFAA in 1984 to address “computer
crime,” which was then principally understood as “hacking” or
trespassing into computer systems or data. See H.R. Rep. No.
98–894, at 3691–92, 3695–97 (1984); S. Rep. No. 99–432, at 2480 (1986).
The House Committee Report to the original bill detailed the
existence of “‘hackers’ who have been able to access (trespass into)
both private and public computer systems” as a result of the
“corresponding proliferation of computer networking which began
during the 1970’s.” H.R. Rep. No. 98–894, at 3695; see also id. at 3696
(noting the “recent flurry of electronic trespassing incidents”). The
report described one instance of “computer crime” in which an
individual “stole confidential software by tapping into the computer
4 The dissent claims that we “discover[] ambiguity in the statutory language
where there is none” and summarily concludes that “exceeds authorized
access” obviously encompasses a scenario where a user “did not comply with
restrictions on [his] authorized access.” Dissenting Op. at 25–26. This
conclusion is, with respect, not reasonable in light of these cases.
31
No. 14‐2710‐cr, 14‐4396‐cr
system of a previous employer from [the] defendant’s remote
terminal.” Id. at 3691–92.
The Senate Committee Report to the 1986 amendments
specifically described “exceeds authorized access” in terms of
trespassing into computer systems or files. In heightening the mens
rea requirement for section 1030(a)(2), the Committee explained that
it did not want to hold liable those “who inadvertently ‘stumble
into’ someone else’s computer file or computer data,” which was
“particularly true in those cases where an individual is authorized to
sign onto and use a particular computer, but subsequently exceeds
his authorized access by mistakenly entering another computer or
data file that happens to be accessible from the same terminal.” S.
Rep. No. 99–432, at 2483. Congress was also careful to note that
“section 1030 deals with an ‘unauthorized access’ concept of
computer fraud rather than the mere use of a computer. Thus, the
conduct prohibited is analogous to that of ‘breaking and entering.’”
H.R. Rep. No. 98–894, at 3706. Consequently, the legislative history
consistently characterizes the evil to be remedied – computer crime –
as “trespass” into computer systems or data, and correspondingly
describes “authorization” in terms of the portion of the computer’s
data to which one’s access rights extend.
The Government relies upon the predecessor language to
“exceeds authorized access.” As originally enacted, section 1030(a)
made it a crime to “knowingly access[] a computer without
authorization, or having accessed a computer with authorization, use[] the
opportunity such access provides for purposes to which such authorization
does not extend.” Counterfeit Access Device and Computer Fraud
and Abuse Act of 1984, Pub. L. No. 98–473, § 2102(a), 98 Stat. 1837,
2190 (codified as amended at 18 U.S.C. § 1030) (emphasis added). In
32
No. 14‐2710‐cr, 14‐4396‐cr
1986, Congress deleted the italicized language and replaced it with
“exceeds authorized access.” S. Rep. No. 99–432, at 2486.
The Government argues that no substantive change was
intended because the substitution was made “to simplify the
language.” Id. Valle cites another provision of the Senate
Committee Report, relating to subsection (a)(3), which states that
Congress had “eliminate[d] coverage for authorized access that aims
at ‘purposes to which such authorization does not extend,’” and
thereby “remove[d] from the sweep of the statute one of the murkier
grounds of liability under which a[n] . . . employee’s access to
computerized data might be legitimate in some circumstances, but
criminal in other (not clearly distinguishable) circumstances.” Id. at
2494 (emphasis added). He argues that Congress therefore intended
to abrogate any purpose‐based inquiry by substituting the new
“exceeds authorized access” language. While a number of courts
have found this argument persuasive, see, e.g., Nosal, 676 F.3d at 858
n.5, we have misgivings. It seems more likely that the Committee
was merely explaining its removal of “exceeds authorized access” as
a basis for liability under subsection (a)(3), rather than the
substitution of “exceeds authorized access” in other provisions of
the statute, including subsection (a)(2).
Nevertheless, we do not think that the appearance of the word
“purposes” in the legislative history renders the statute clear for the
simple reason that even when Congress referenced the user’s
“purposes,” it spoke in terms of the particular computer files or data
to which the user’s access rights extended. The Committee’s
extensive discussion of subsection (a)(3) is instructive. As initially
enacted, that provision made it a crime to knowingly access a
government computer without authorization or exceed the scope of
33
No. 14‐2710‐cr, 14‐4396‐cr
one’s authorization and thereby use or disclose information. S. Rep.
No. 99–432, at 2494. Subsection (a)(3) therefore “swe[pt] in all
computerized government information, including documents that
must, under the Freedom of Information Act [(“FOIA”)], be
disclosed to any member of the public upon proper request,” while
“gloss[ing] over the reality that the existence or exact scope of a
government employee’s authority to access a particular
computerized data base is not always free from doubt.” Concerned
that government employees would “resolve doubts against
disclosure” when responding to FOIA requests, the Committee
revised subsection (a)(3) in three ways, including by removing the
“purposes” language. Id.
Each of these revisions was directed toward the same
problem: an employee with authorization to access certain databases
entering other databases to which his authorization did not extend.
And, in explaining the revisions, the Committee understood
authorization in spatial terms, namely, an employee going beyond
the parameters of his access rights. See e.g., id. at 2495 (declining to
apply subsection (a)(3) “to access by a Federal employee of
computers of that employee’s own agency,” and explaining that the
revised rule “would provide prosecutors a clear, workable rule,
regardless of the intricacies of a particular agency’s computer access
policies: absent a fraudulent motive, an employee could not be
prosecuted for simple ‘trespass’ into one of his agency’s own
computers”) (emphasis added). This understanding of authorization
is, as we have previously explained, consistent with Congress’s
discussion of the concept elsewhere. It is likewise consistent with
the statute’s principal purpose of addressing the problem of hacking,
i.e., trespass into computer systems or data.
34
No. 14‐2710‐cr, 14‐4396‐cr
At the end of the day, we find support in the legislative
history for both Valle’s and the Government’s construction of the
statute. But because our review involves a criminal statute, some
support is not enough. Where, as here, ordinary tools of legislative
construction fail to establish that the Government’s position is
unambiguously correct, we are required by the rule of lenity to
adopt the interpretation that favors the defendant. Santos, 553 U.S.
at 514; United States v. Granderson, 511 U.S. 39, 54 (1994). We do not
think it too much to ask that Congress define criminal conduct with
precision and clarity. As Chief Justice Marshall explained:
The rule that penal laws are to be construed strictly, is perhaps not
much less old than construction itself. It is founded . . . on the
plain principle that the power of punishment is vested in the
legislative, not in the judicial department. It is the legislature, not
the Court, which is to define a crime, and ordain its punishment.
United States v. Wiltberger, 18 U.S. (5 Wheat.) 76, 95 (1820). We
decline to adopt the prosecution’s construction, which would
criminalize the conduct of millions of ordinary computer users and
place us in the position of a legislature.
The role that the rule of lenity plays where doubt remains as
to the reach of a criminal statute was discussed in Nosal, where the
Ninth Circuit sitting en banc focused sharply on the same
compelling concerns that Valle and amici raise on this appeal:
[T]he government’s proposed interpretation of the CFAA allows
private parties to manipulate their computer‐use and personnel
policies so as to turn these relationships into ones policed by the
criminal law. Significant notice problems arise if we allow
criminal liability to turn on the vagaries of private policies that are
lengthy, opaque, subject to change and seldom read. Consider the
typical corporate policy that computers can be used only for
35
No. 14‐2710‐cr, 14‐4396‐cr
business purposes. What exactly is a ‘nonbusiness purpose’? If
you use the computer to check the weather report for a business
trip? For the company softball game? For your vacation to
Hawaii? And if minor personal uses are tolerated, how can an
employee be on notice of what constitutes a violation sufficient to
trigger criminal liability?
676 F.3d at 860. The Fourth Circuit, in Miller, agreed with the Ninth
Circuit and echoed the same concerns:
The deficiency of a rule that revokes authorization when an
employee uses his access for a purpose contrary to the employer’s
interests is apparent: Such a rule would mean that any employee
who checked the latest Facebook posting or sporting event scores
in contravention of his employer’s use policy would be subject to
the instantaneous cessation of his agency and, as a result, would
be left without any authorization to access his employer’s
computer systems . . . . [W]e do not think Congress intended . . .
the imposition of criminal penalties for such a frolic.
687 F.3d at 206.
We agree with the Ninth and Fourth Circuits that courts that
have adopted the broader construction “looked only at the culpable
behavior of the defendants before them, and failed to consider the
effect on millions of ordinary citizens caused by the statute’s unitary
definition of ‘exceeds authorized access.’” Nosal, 676 F.3d at 863; see
also Miller, 687 F.3d at 206 (“[W]e believe that th[is] theory has farreaching
effects unintended by Congress.”). This is the very concern
at the heart of the rule of lenity.
For example, in United States v. Kozminski, 487 U.S. 931 (1988),
the Supreme Court refused to adopt the Government’s broad
interpretation of a statute criminalizing involuntary servitude. The
Government argued that the statute should criminalize “compulsion
36
No. 14‐2710‐cr, 14‐4396‐cr
[to work] through psychological coercion as well as almost any other
type of speech or conduct intentionally employed to persuade a
reluctant person to work.” Id. at 949. The Supreme Court rejected
this interpretation because it would “criminalize a broad range of
day‐to‐day activity,” such as “a parent who coerced an adult son or
daughter into working in the family business by threatening
withdrawal of affection.” Id. The Court warned that the broader
statutory interpretation would “delegate to prosecutors and juries
the inherently legislative task of determining what type of . . .
activities are so morally reprehensible that they should be punished
as crimes” and would “subject individuals to the risk of arbitrary or
discriminatory prosecution and conviction.” Id.
The Government does not reply substantively to Valle’s
concerns about the rule of lenity or about the risk of criminalizing
ordinary behavior inherent in its broad construction. It merely
states that “those concerns must be raised in the first instance by
individuals actually affected by the provision at issue,” and that
“[t]hose cases will present fact‐specific questions not relevant here,
including whether the applicable authorization was clearly defined
and whether the abuse of computer access was intentional.” Gov’t
Opp’n Br. 15. We disagree. The Government asks that we affirm
Valle’s conviction, which requires us to accept its construction of the
statute. But our construction of the statute impacts many more
people than Valle. It will not only affect those who improperly
access information from a government computer – a result some
readers might find palatable – but also those who improperly access
“any protected computer” and thereby obtain information. 18
U.S.C. § 1030(a)(2)(C). As the Ninth Circuit aptly put it in Nosal,
“[b]ecause ‘protected computer’ is defined as a computer affected by
37
No. 14‐2710‐cr, 14‐4396‐cr
or involved in interstate commerce – effectively all computers with
Internet access – the government’s interpretation of ‘exceeds
authorized access’ makes every violation of a private computer use
policy a federal crime.” 676 F.3d at 859 (citing 18 U.S.C.
§ 1030(e)(2)(B)).
Whatever the apparent merits of imposing criminal liability
may seem to be in this case, we must construe the statute knowing
that our interpretation of “exceeds authorized access” will govern
many other situations. See 18 U.S.C. § 1030(e)(6). It is precisely for
this reason that the rule of lenity requires that Congress, not the
courts or the prosecutors, must decide whether conduct is criminal.
We, on the other hand, are obligated to “construe criminal statutes
narrowly so that Congress will not unintentionally turn ordinary
citizens into criminals.” Nosal, 676 F.3d at 863. While the
Government might promise that it would not prosecute an
individual for checking Facebook at work, we are not at liberty to
take prosecutors at their word in such matters. A court should not
uphold a highly problematic interpretation of a statute merely
because the Government promises to use it responsibly. See United
States v. Stevens, 559 U.S. 460, 480 (2010).
CONCLUSION
For these reasons, we AFFIRM the judgment of acquittal as to
the count of conspiracy to kidnap, and REVERSE the judgment of
conviction as to the count of improperly accessing a computer in
violation of the CFAA.
38
UNITED STATES V. VALLE
1 STRAUB, Circuit Judge, dissenting:
2 This case is important. It is important to the role we have traditionally
3 allotted to juries in our criminal justice system. It is important to the rule which
4 requires judges to apply the laws written by the people’s Congress, particularly
5 to police conduct which utilizes official databases to access information about
6 citizens where such is not part of official action. Because the majority opinion
7 seeks to enshrine all the conduct in this case in an academic protective halo, I
8 find it necessary to offer the realistic context of this controversy.
9 This is not a case about governmental intrusion on one’s personal
10 inclinations and fantasies nor is it a case about governmental punishment of
11 one’s thoughts. It is, instead, a jury’s determination of guilt for a conspiracy
12 based on definitive conduct. This is not a case of confused, accidental, or
13 otherwise inappropriate use of a law enforcement database. It is, instead, a
14 police officer’s use of the official database to obtain, outside the boundaries of his
15 official duties, data about a woman whom he knew.
16 Having so noted the context of this appeal, I now proceed to presentation
17 of the facts and applicable law.
UNITED STATES V. VALLE
‐2‐
1 * * *
2 Defendant‐Appellant/Defendant‐Appellee Gilberto Valle was convicted by
3 a jury of conspiracy to kidnap (Count I) and of improperly accessing a computer
4 in violation of the Computer Fraud and Abuse Act (“CFAA”) (Count II). Valle
5 moved for a judgment of acquittal on both counts. As to Count I, the District
6 Court (Paul G. Gardephe, Judge) granted Valle’s motion, finding that the
7 evidence at trial was insufficient to support the jury’s verdict, and entered a
8 judgment of acquittal. As to Count II, the District Court denied Valle’s motion,
9 rejecting Valle’s argument that the CFAA did not proscribe his conduct, and
10 entered a judgment of conviction.
11 The majority affirms the judgment of acquittal in respect of Count I and
12 reverses the judgment of conviction in respect of Count II. I would instead
13 vacate the District Court’s judgment of acquittal in respect of Count I, affirm the
14 District Court’s judgment of conviction in respect of Count II, and remand for
15 further proceedings. Therefore, I respectfully dissent.
UNITED STATES V. VALLE
‐3‐
1 I. Conspiracy to Kidnap (Count I)
2 The Sixth Amendment right to trial by jury is a “fundamental reservation
3 of power in our constitutional structure,” Blakely v. Washington, 542 U.S. 296, 306
4 (2004), and reflects our “deep commitment . . . to the right of jury trial in serious
5 criminal cases as a defense against arbitrary law enforcement,” Duncan v.
6 Louisiana, 391 U.S. 145, 156 (1968). “Just as suffrage ensures the people’s ultimate
7 control in the legislative and executive branches, jury trial is meant to ensure
8 their control in the judiciary.” Blakely, 542 U.S. at 306; see also United States v.
9 Bailey, 444 U.S. 394, 435 (1980) (Blackmun, J., dissenting) (“The jury is the
10 conscience of society and its role in a criminal prosecution is particularly
11 important.”). In this “strict division of authority between judge and jury,”
12 Blakely, 542 U.S. at 313, it is the sole responsibility of the jury to weigh evidence
13 and reach the ultimate conclusion of guilt or innocence, see United States v.
14 Gaudin, 515 U.S. 506, 514 (1995); Jackson v. Virginia, 443 U.S. 307, 319 (1979).
15 To preserve the jury’s broad fact‐finding discretion, a court can enter a
16 judgment of acquittal only if the evidence of guilt is “nonexistent or so meager
17 that no reasonable jury could find guilt beyond a reasonable doubt.” United
UNITED STATES V. VALLE
‐4‐
States v. Espaillet, 380 F.3d 1 713, 718 (2d Cir. 2004) (internal quotation marks
2 omitted). In making this determination, a court must defer to the jury’s
3 resolution of evidentiary conflicts. Jackson, 443 U.S. at 319; see also United States v.
4 Hamilton, 334 F.3d 170, 179 (2d Cir.) (“[W]e must defer to the jury’s resolution of
5 the weight of the evidence and the credibility of the witnesses, and to the jury’s
6 choice of the competing inferences that can be drawn from the evidence.”
7 (internal quotation marks, citations, and brackets omitted)), cert. denied, 540 U.S.
8 985 (2003). We therefore view the evidence in the light most favorable to the
9 government and draw all reasonable inferences in its favor. Jackson, 443 U.S.
10 at 319; see also United States v. Kozeny, 667 F.3d 122, 139 (2d Cir. 2011) (noting the
11 “heavy burden” that a defendant faces when seeking to overturn a jury’s
12 verdict), cert. denied, 133 S. Ct. 1794 (2013).
13 The majority blatantly disregards these constraints on a court’s review of a
14 jury’s verdict and accords to itself the power to “identify” and “discern[]” “[t]he
15 line between fantasy and criminal intent.” Maj. Op. at 4. Rather, it was, and
16 remains, for the jury to determine the factual question of whether Valle had
17 criminal intent. The jury considered and rejected Valle’s defense that he was
UNITED STATES V. VALLE
‐5‐
simply pretending to commit a 1 crime. It instead found, beyond a reasonable
2 doubt, that Valle actually and genuinely conspired to kidnap someone. The
3 majority’s eloquent prose on the importance of protecting thoughts from
4 criminal punishment, see id. at 4–5—perhaps better suited for an opinion editorial
5 than a judicial opinion—is thus irrelevant, because the jury did not convict Valle
6 for fantasizing. We are left to determine only whether the evidence, viewed in
7 the light most favorable to the government, was sufficient for the jury to reach its
8 verdict.
9 In reaching its conclusion, the majority pays lip service to the standard we
10 apply in evaluating the sufficiency of the evidence, but then usurps the jury’s
11 role by weighing competing inferences and explanations of the evidence rather
12 than viewing it in the government’s favor. Such an undertaking is plainly
13 inappropriate in this context.
14 Perhaps most tellingly, the majority imprudently structures its analysis to
15 support its predetermined outcome by viewing the evidence “in its parts,” rather
16 than considering “the government’s case in its totality,” United States v. Hawkins,
17 547 F.3d 66, 70 (2d Cir. 2008) (internal quotation marks and brackets omitted): it
UNITED STATES V. VALLE
‐6‐
1 first concludes that Valle’s online communications—viewed in isolation—are
2 “indistinguishable” from the purported “fantasy” communications, see Maj. Op.
3 at 14, and then proceeds to reject the remaining evidence (of Valle’s overt acts in
4 furtherance of the conspiracy) as insufficient on its own to support the
5 conviction, see id. at 25–27. When considered properly with the deference that
6 we must apply, however, the jury’s guilty verdict on the count of conspiracy to
7 kidnap was sufficiently supported by the evidence presented at trial.
8 A. The Evidence Supporting the Jury’s Verdict, Viewed in the Light
9 Most Favorable to the Government
10 To decide that Valle was guilty of conspiracy to kidnap, all that the jury
11 had to find was sufficient evidence in respect of one alleged coconspirator and
12 one intended victim. See Kozeny, 667 F.3d at 131–32; United States v. Thomas, 54
13 F.3d 73, 81 (2d Cir. 1995). The evidence at trial provided a sufficient basis for the
14 jury to conclude that Valle made an agreement with Dale Bollinger, a man he met
15 on darkfetishnet.com, to kidnap and murder Kimberly Sauer, one of Valle’s
16 friends from college.
17 During the earliest communication in evidence between Valle and
18 Bollinger, Valle sought Bollinger’s assistance kidnapping and cannibalizing
UNITED STATES V. VALLE
‐7‐
1 women, noting Bollinger’s claimed experience, and shared pictures with
2 Bollinger of potential victims. Bollinger accepted Valle’s offer, stating that,
3 although he lived in England, it would be easy for him to travel to Valle and help
4 him.
5 The two focused on Kimberly Sauer as their preferred target. Valle told
6 Bollinger that she would be “the easiest” to abduct. App’x at 81. He explained
7 that, because he knew her personally, he could “just show up at her home
8 unannounced” without “alert[ing] her” in order to “knock her out . . . and
9 kidnap her.” Id. at 82. Valle suggested a “Labor Day cookout,” with Sauer “as
10 the main course.” Id. at 86. Bollinger replied that he was “looking forward to it,”
11 id., and would search for affordable plane tickets.
12 In multiple conversations over the course of a few weeks, Valle and
13 Bollinger continued discussing the details of abducting and murdering Sauer.
14 They considered logistical and practical concerns. They planned to use
15 chloroform to incapacitate her, which Valle offered to make himself. They
16 discussed stalking Sauer “in the evening,” id. at 82, noting that she lived alone, in
17 a small house, far from family that might notice her absence. Valle offered to “do
UNITED STATES V. VALLE
‐8‐
a dry run,” in which he would “show up 1 randomly one day just being in the
2 neighborhood.” Id. at 93. They also decided to cover the trunk of Valle’s car in
3 plastic bags and use “gloves and a new pair of really cheap, common trainers”
4 that should be destroyed after the abduction, “probably by burning.” Id. at 95.
5 They agreed that when buying materials they should use cash.
6 They also developed their plans to cook and eat Sauer. Valle and Bollinger
7 debated the merits of roasting Sauer alive in an oven or over a rotisserie. They
8 further discussed how she should be gagged and butchered. Valle promised to
9 get a “brand new set of knives,” and Bollinger advised that they would need a
10 “cleaver, not a saw.” Id. at 88.
11 As they plotted Sauer’s abduction, Bollinger and Valle expressed
12 excitement about their plan. Valle shared his happiness that Bollinger was “on
13 board” and said that he loved imagining Sauer “asleep right now not having the
14 slightest clue of what we have planned.” Id. at 90. When Bollinger replied that
15 he was “looking forward to it so much,” Valle said that he could not wait to “see
16 the look on her face when she wakes up naked and tied up.” Id. at 96. Valle
17 noted that it was good that they were “brainstorm[ing],” because
UNITED STATES V. VALLE
‐9‐
“everything[ ]needs to be perfect.” Id. 1 at 93. They would “talk in great detail”
2 about “every step,” suggested Valle, “beginning with the rag in her face.” Id.
3 Bollinger and Valle confirmed to each other their genuine intention to
4 follow through on their plan. At one point, Bollinger asked Valle, “You WILL go
5 through with this? I’ve been let down before. That’s why i [sic] tend to work
6 alone.” Id. at 91. Valle immediately replied “yes,” adding that Sauer would
7 “never see it coming” and that he was anxious to kidnap and eat her. Id. Valle
8 later stated that “kidnapping” Sauer and “getting away with it” was an “absolute
9 truth.” Id. at 93.
10 Valle took what could be viewed reasonably as concrete steps to further
11 his plan with Bollinger. He sent Bollinger a “blueprint” of their plot, id. at 100,
12 entitled “Abducting and Cooking Kimberly,” id. at 267, which was consistent
13 with what Valle and Bollinger had discussed up to that point. Valle searched the
14 internet for Sauer’s name, “how to kidnap someone,” id. at 383, “how to abduct a
15 girl,” id. at 384, “[g]ood methods to kidnap someone,” id., “how to knock
16 someone unconscious,” id. at 385, “how to chloroform a girl,” id., “how to tie
17 someone up,” id. at 396, “most secure bondage,” id., and “how to hogtie a girl,”
UNITED STATES V. VALLE
‐10‐
id. at 388. And Valle planned a 1 trip, with his wife and young child, to Maryland,
2 where Sauer lived. Valle contacted Sauer before the trip, and they planned a
3 lunch while he and his family were in Maryland.
4 Before leaving for Maryland, Valle had further discussions with Bollinger.
5 Valle explained that his lunch with Sauer would stimulate ideas for how to cook
6 her, remarking that when he saw her, his mouth would “be watering.” Id. at 110.
7 The two also discussed the lunch as a way to confirm their choice of Sauer as
8 their preferred target. When Valle had a moment of indecision about whether to
9 target different women instead of Sauer, Bollinger advised that they “[k]eep the
10 others as spares” and “see how” the lunch with Sauer goes. Id. at 111. Bollinger
11 further wished Valle “good luck,” id. at 116, cautioned him to act normally
12 during the lunch—because he would be a “suspect” when Sauer “goes missing,”
13 id. at 102—and asked him to report what he learned.
14 On the trip to Maryland, Valle text‐messaged Sauer that he had driven
15 past her place of work. Sauer found the text message strange and doubted that
16 her other friends knew where she worked. Shortly after having lunch with
UNITED STATES V. VALLE
‐11‐
Sauer, Valle 1 wrote to Bollinger that Sauer “looked absolutely mouthwatering.”
2 Id. at 117.
3 B. The Crime of Conspiracy
4 “To be complete, a conspiracy simply requires (i) an agreement about the
5 object of the conspiracy, (ii) specific intent to achieve that object, and (iii) an overt
6 act in furtherance of the agreement.” United States v. Wallace, 85 F.3d 1063, 1068
7 (2d Cir. 1996). A defendant is guilty of conspiracy so long as he “agreed on the
8 essential nature of the plan,” which need not accompany a fully‐formed plot to
9 constitute an illegal conspiracy. United States v. Eppolito, 543 F.3d 25, 47 (2d Cir.
10 2008) (internal quotation marks omitted); see also United States v. Rosa, 17 F.3d
11 1531, 1543–44 (2d Cir.), cert. denied, 513 U.S. 879 (1994).
12 The evidence at trial, viewed in the light most favorable to the
13 government, supported the jury’s conclusion that Valle and another agreed to
14 commit a kidnapping, intended at the time to do so, and performed at least one
15 overt act in furtherance of their agreement, such as Valle’s creation of the
16 “blueprint” or meeting Sauer in Maryland. The jury could reach the conclusion
17 that a conspiracy was formed even though, as it happened, Valle and Bollinger
UNITED STATES V. VALLE
‐12‐
ultimately made no attempt 1 to kidnap Sauer on Labor Day. A conspiratorial
2 agreement is a distinct crime that is punishable regardless of whether the plan is
3 later abandoned. See United States v. Jimenez Recio, 537 U.S. 270, 275 (2003)
4 (explaining that a conspiracy “poses a threat to the public over and above the
5 threat of the commission of the relevant substantive crime” (internal quotation
6 marks omitted)).
7 C. The Jury’s Reasonable Inferences
8 In spite of Valle and Bollinger’s express agreement in their written
9 communications to kidnap Sauer, the majority concludes that the jury acted
10 irrationally when it found Valle guilty of conspiracy to kidnap. The majority
11 reasons that, because Valle fantasized about cannibalism with others over the
12 internet, it was irrational to believe that Valle and Bollinger meant what they said
13 to each other. See Maj. Op. at 25. In my view, however, the majority fails to
14 respect the reasonable inferences that the jury could have made in determining
15 that Valle’s plot with Bollinger—unlike his other online communications—was
16 real.
UNITED STATES V. VALLE
‐13‐
In stark contrast 1 to any of Valle’s other online communications, Valle took
2 actions in the real world that the jury could conclude were done to effectuate his
3 plot with Bollinger. Valle visited Sauer in Maryland, drove past her workplace,
4 and had lunch with her—a lunch that he and Bollinger discussed as a way to
5 further their plans.1 But this was hardly, as the majority suggests, the “only
6 meaningful difference,” id., between the plot concerning Sauer and the so‐called
7 “fantasy chats.” Only in Valle’s conversation with Bollinger, for example, did the
8 jury have evidence of a “blueprint” that Valle made of the plot.
9 The jury could also have found that the nature of Valle’s conversations
10 with Bollinger were distinct in tenor and tone. The detail of Valle’s plans with
11 Bollinger was unparalleled in his communications with others. And though
12 Valle made allusions to being serious in certain of the supposed “fantasy chats,”
1 As noted earlier, Valle and Bollinger discussed the lunch over the course of multiple
conversations and expressly referred to it as a way to confirm their choice of Sauer and inspire
ideas for cannibalizing her. See supra at 10–11. In light of these discussions, it is not clear how
the majority can contend that Valle and Bollinger’s communications “leading up to and
following the lunch” make it “impossible to conclude” that the lunch was in furtherance of their
plot. Maj. Op. at 26.
UNITED STATES V. VALLE
‐14‐
at no point did he state so unequivocally, 1 as he did to Bollinger, that it was an
2 “absolute truth” that he and Bollinger would kidnap Sauer. App’x at 93.
3 Other evidence further supported the jury’s conclusion that Valle’s plot
4 with Bollinger was more than mere fantasy. Valle’s internet searches between
5 the date of his first conversation with Bollinger and his lunch with Sauer were
6 particularly relevant to his plan with Bollinger. The majority concedes that
7 Valle’s internet searches could have provided “relevant proof of intent,” but
8 nevertheless dismisses them because, in its view, Valle’s searches “occurred in a
9 context of deep fantasy.” Maj. Op. at 21. This flawed analysis commits the
10 fallacy of petitio principii (circular reasoning) because “what is to be proved is
11 implicitly presumed as true in the premise.” Black’s Law Dictionary 1329 (10th
12 ed. 2014); see also Adams v. Gould, Inc., 687 F.2d 27, 30 (3d Cir. 1982) (explaining
13 that “the fallacy of petitio principii” occurs when one “assum[es] the
14 conclusion”), cert. denied, 460 U.S. 1085 (1983); Nico v. Comm’r of Internal Revenue,
15 565 F.2d 1234, 1238 (2d Cir. 1977) (“this court by all means eschews petitio
16 principii”). The majority concludes that Valle was engaged in fantasy based on
17 its reading of his written communications and then finds his internet searches
UNITED STATES V. VALLE
‐15‐
consistent with 1 this preordained conclusion. The jury, however, may have
2 considered Valle’s internet searches in deciding that very issue—whether Valle
3 was engaged only in fantasy.
4 The jury could have also considered Valle’s post‐arrest statement to a
5 government agent that Bollinger was “more serious” about their discussions than
6 other individuals with whom Valle communicated. Trial Tr. at 1031.
7 The majority opinion takes pains to conjure innocent explanations for this
8 evidence. Perhaps Valle’s lunch with Sauer was just a normal social interaction.
9 See Maj. Op. at 24–26. Maybe Valle withheld from Bollinger Sauer’s address
10 because he did not intend to actually harm her. See id. at 24–25. Possibly Valle
11 conducted internet searches on how to kidnap someone simply because he had a
12 general interest in crime rather than criminal intent.2 See id. at 21. These are
13 perspectives on the evidence that the jury conceivably could have found
14 persuasive but did not. It was the jury’s sole prerogative to decide how to
2 Unlike the majority, the jury did not determine that Valle was merely “interested in committing
acts of sexualized violence against women,” Maj. Op. at 21; it concluded—beyond a reasonable
doubt—that Valle actually conspired to commit a kidnapping.
UNITED STATES V. VALLE
‐16‐
interpret the evidence presented, and 1 the majority’s notions of how the evidence
2 should instead have been interpreted are incompatible with our obligation to
3 respect the jury’s fact‐finding role by viewing the evidence in the light most
4 favorable to the government and drawing all reasonable inferences in its favor.
5 See United States v. Aguiar, 737 F.3d 251, 265 (2d Cir. 2013) (“We agree that much
6 of the evidence could be read to have an innocent meaning, but when the
7 evidence raises two permissible inferences then we must resolve such conflicts in
8 favor of the prosecution.”), cert. denied, 135 S. Ct. 400 (2014); United States v.
9 Friedman, 998 F.2d 53, 56 (2d Cir. 1993) (explaining that “[i]t is not for [the court]
10 to weigh . . . competing inferences and explanations” to ascertain “which
11 explanation [of defendant’s conduct] is more likely”); see also, e.g., United States v.
12 Pavulak, 700 F.3d 651, 670 (3d Cir. 2012) (rejecting defendant’s contention that his
13 requests to see a child naked were “facetious ‘banter’” and “fantasies,” because it
14 was not for the court “to weigh the evidence”), cert. denied, 133 S. Ct. 2047 (2013);
15 United States v. Dwinells, 508 F.3d 63, 74 (1st Cir. 2007) (acknowledging that
16 defendant’s response to charges of attempted enticement of a minor—“that he
17 was merely role‐playing and thought that the communications were mutually
UNITED STATES V. VALLE
‐17‐
entertained 1 fantasies”—was “plausible” and “buttressed by [his] persistent
2 dodging of suggestions that he and his correspondents meet,” but concluding
3 that “the government’s theory of the case . . . also was plausible,” and that
4 “[w]hen the record is fairly susceptible to two competing scenarios, the choice
5 between those scenarios ordinarily is for the jury”), cert. denied, 554 U.S. 922
6 (2008).
7 For each assessment of the evidence made by the majority in contravention
8 of the jury’s finding of guilt, there is a contrary light through which the evidence
9 can be viewed—in fact, must be viewed—that supports the jury’s conclusion.
10 The majority notes, for instance, that in his conversations with Bollinger,
11 Valle lied about certain seemingly important facts (such as where he lived,
12 whether he knew Sauer’s address, and whether he owned a secluded mountain
13 house). See Maj. Op. at 23–25. The majority similarly points out that Valle’s
14 “blueprint” of Sauer’s abduction listed inaccurately much of Sauer’s identifying
15 information. See id. at 23. But Valle’s misstatements hardly demonstrate a lack of
16 intent. For instance, the jury could have rationally inferred from the evidence
17 that, while the plan was still developing, Valle misled Bollinger because he did
UNITED STATES V. VALLE
‐18‐
not fully trust him. 1 Valle’s “blueprint” obscures information about Sauer that
2 could be used to find her easily, such as her last name, but other information in
3 the document is, by contrast, accurate (e.g., Sauer’s picture, marital status, lack of
4 tattoos). Bollinger, in fact, expressly assumed that mistrust was Valle’s reason
5 for not sharing certain information; when Valle claimed not to know Sauer’s
6 address, Bollinger remarked, “not like I’ll get there a day early!” App’x at 101.
7 And Valle’s lies about what he possessed to facilitate the crime—such as a
8 secluded mountain house—were in response to Bollinger’s concerns about the
9 plan’s effectiveness; the jury could have reasoned that Valle fibbed to ensure
10 Bollinger’s interest. Valle would not be the first defendant to mislead a
11 coconspirator, and his misstatements do not negate the jury’s verdict. E.g.,
12 United States v. Gersh, 328 F.2d 460, 462 (2d Cir.) (stating that there was “no less a
13 meeting of the minds” because coconspirators decided to deceive each other),
14 cert. denied, 377 U.S. 992 (1964); cf. United States v. Farley, 607 F.3d 1294, 1335 (11th
15 Cir.) (rejecting defendant’s assertion that his lack of intent was demonstrated by
16 lies to his coconspirator about details in their plot to sexually abuse a minor), cert.
17 denied, 562 U.S. 945 (2010).
UNITED STATES V. VALLE
‐19‐
The majority discounts 1 Valle’s internet searches as demonstrating merely
2 an “interest” in criminal activity. See Maj. Op. at 21. But the jury could certainly
3 reasonably deduce that Valle’s inquiries into how to incapacitate, bind, and
4 kidnap women—all conducted contemporaneously with his conversations with
5 Bollinger about abducting Sauer—provided a strong indication of criminal
6 intent.
7 The majority likewise supposes that the improbability of Valle and
8 Bollinger’s plot suggests that it was no more than fantasy. Valle and Bollinger
9 met on a sexual fetish website, knew almost nothing about each other, barely
10 discussed the logistics of Bollinger traveling thousands of miles to assist Valle,
11 developed a “blueprint” that was “no more detailed than . . . Valle’s Internet
12 chats,” id. at 25, and let their target date for Sauer’s abduction pass without
13 comment. Yet Valle and Bollinger explicitly stated that their plans were
14 incomplete and needed more work. When Valle sent Bollinger the “blueprint,”
15 in fact, he acknowledged that “obviously a lot has to be added” because they
16 were “in the beginning stages.” App’x at 100. And throughout their discussions
17 of Sauer, Valle and Bollinger contemplated additional or alternative targets. The
UNITED STATES V. VALLE
‐20‐
evidence supports the inference that 1 Valle and Bollinger agreed on a basic
2 framework and set an aspirational date but then focused on other targets or
3 plans that they later found more appealing.
4 The majority also suggests that the jury lacked evidence of Bollinger’s
5 criminal intent. See Maj. Op. at 27. To the contrary, the only evidence at trial as
6 to Bollinger was his written conversations with Valle, in which he unequivocally
7 established intent by expressly agreeing to help Valle kidnap Sauer. The
8 majority’s analysis as to why the jury should have disbelieved Valle’s intent is
9 irrelevant to the question of Bollinger’s intent. Whereas the majority points to
10 Valle’s other online conversations to contend that his statements to Bollinger
11 were feigned, no such evidence existed as to Bollinger.
12 D. The Jury’s Verdict Was Sufficiently Supported by the Evidence
13 As judges reviewing the sufficiency of the evidence in a criminal trial,
14 given the grave importance of the event, it can be tempting to view the evidence
15 in the light most convincing to us, to discount plausible factual inferences that
16 we find unpersuasive, and to conclude that if we do not believe that the evidence
17 proved guilt beyond a reasonable doubt, then no rational juror could have so
UNITED STATES V. VALLE
‐21‐
found. That, however, is simply not 1 the standard to which we are bound, see
2 Jackson, 443 U.S. at 318–19; United States v. Josephberg, 562 F.3d 478, 488 (2d Cir.)
3 (“The weight of the evidence is a matter for argument to the jury, not a ground
4 for reversal on appeal.” (internal quotation marks omitted)), cert. denied, 558 U.S.
5 965 (2009), and we must be diligent not to overreach into the jury’s domain, cf.
6 United States v. Butler, 297 U.S. 1, 79 (1936) (Stone, J., dissenting) (“[T]he only
7 check upon our own exercise of power is our own sense of self‐restraint.”). Our
8 “deference to the jury’s findings is especially important” in a conspiracy case,
9 “because a conspiracy by its very nature is a secretive operation, and it is a rare
10 case where all aspects of a conspiracy can be laid bare in court with the precision
11 of a surgeon’s scalpel.” United States v. Santos, 541 F.3d 63, 70 (2d Cir. 2008)
12 (internal quotation marks omitted), cert. denied, 555 U.S. 1122 (2009).
13 Here, I fear the majority treads beyond the strict limitations of our review
14 by improperly weighing competing inferences and explanations of the
15 evidence—as if deciding a motion for a new trial instead of reviewing a
16 judgment of acquittal—rather than viewing it, as we must, “in its totality,”
17 Hawkins, 547 F.3d at 70 (internal quotation marks), and in the government’s
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favor, see Tibbs v. Florida, 457 1 U.S. 31, 45 (1982) (recognizing “lower limit on an
2 appellate court’s definition of evidentiary sufficiency” compared to evidentiary
3 weight); see also, e.g., United States v. Autuori, 212 F.3d 105, 120 (2d Cir. 2000)
4 (affirming grant of motion for new trial while reversing judgment of acquittal).
5 All that was required to find Valle guilty of conspiracy was proof of one
6 agreement with one coconspirator to kidnap one target, as well as one overt act.
7 See Wallace, 85 F.3d at 1068. Even if the government’s evidence was insufficient
8 in respect of each of the other four alleged kidnapping conspiracies, see Maj. Op.
9 at 6–7, Valle’s conversations with Bollinger about kidnapping and cannibalizing
10 Sauer, together with Valle’s overt acts, such as his trip to Maryland, were enough
11 for the jury to rationally find that Valle committed the crime of conspiracy to
12 kidnap, see United States v. Berger, 224 F.3d 107, 113 (2d Cir. 2000) (“[T]he
13 government need[] only [] prove agreement on one of the objectives charged in
14 the indictment in order to establish that a conspiracy existed.”).
15 Of course, a jury can never determine with complete certainty what a
16 criminal defendant was thinking at a particular moment. But here the jury had
17 sufficient evidence to conclude, beyond a reasonable doubt, that Valle and
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Bollinger meant exactly what they said 1 to each other. See United States v. Rowe, 56
2 F.2d 747, 749 (2d Cir.) (L. Hand, J.) (“A jury alone could say whether in such a
3 setting the hearer ought to have understood that the utterances were not to be
4 taken at their face . . . .”), cert. denied, 286 U.S. 554 (1932). Valle and Bollinger
5 targeted Sauer because she would be easy to kidnap, spent hours plotting her
6 abduction, and repeatedly stated that they were serious—and excited—about
7 their plan. Their words were corroborated by Valle’s trip to Maryland,
8 contemporaneous internet searches, blueprint for abducting and cooking Sauer,
9 and post‐arrest assertion that Bollinger was “more serious” than others with
10 whom Valle communicated.3 The jury could reasonably deduce that the tenor of
11 Valle’s conversations with Bollinger, together with his real‐world actions, proved
12 beyond a reasonable doubt that the plot to kidnap Sauer was no fantasy. We
13 cannot second‐guess the jury’s rational conclusion. See Jackson, 443 U.S. at 319;
14 United States v. Allied Stevedoring Corp., 241 F.2d 925, 930 (2d Cir.) (L. Hand, J.)
3 This evidence, viewed in the light most favorable to the government and “in its totality,”
United States v. Florez, 447 F.3d 145, 154 (2d Cir.), cert. denied, 549 U.S. 1040 (2006), is not merely
“some incriminating evidence,” Maj. Op. at 26, whatever that may mean.
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(“What weight the jury should give to 1 [the] evidence was for them, and them
2 alone, provided that it satisfied their minds beyond any fair doubt.”), cert. denied,
3 353 U.S. 984 (1957).
4 I would thus vacate the District Court’s judgment of acquittal in respect of
5 Count I and remand for the District Court to consider Valle’s alternative
6 arguments for acquittal, which were raised below but did not form the basis for
7 the District Court’s decision.
8 II. Computer Fraud and Abuse Act (Count II)
9 Valle was convicted of conducting a computer search that exceeded his
10 authorized access to a federal law enforcement database, in violation of the
11 Computer Fraud and Abuse Act, 18 U.S.C. § 1030. Because I agree with the
12 District Court that Valle’s conduct is proscribed by the plain language of the
13 CFAA, I would affirm his conviction.
14 The CFAA imposes criminal penalties on anyone who “intentionally
15 accesses a computer without authorization or exceeds authorized access, and
16 thereby obtains . . . information from any department or agency of the United
17 States.” 18 U.S.C. § 1030(a)(2)(B). The phrase “exceeds authorized access” is
UNITED STATES V. VALLE
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defined as “access[ing] a 1 computer with authorization” to obtain “information in
2 the computer that the accesser is not entitled so to obtain.” Id. § 1030(e)(6). The
3 CFAA therefore protects information belonging to the United States both from
4 those who lack any authorization to access the computer system and from those,
5 like Valle, who did not comply with restrictions on their authorized access.
6 The evidence at trial established that, by entering the name “Maureen
7 Hartigan” into a federal law enforcement database, Valle obtained information
8 that he was “not entitled so to obtain.” See United States v. Valle, 301 F.R.D. 53,
9 109–10 (S.D.N.Y. 2014). Valle was instructed repeatedly that he had permission
10 to use his credentials to access the federal National Crime Information Center
11 (“NCIC”) database only when “required to do so in the course of [his] official
12 duties and responsibilities” as a police officer, and that there were “no exceptions
13 to this policy.” App’x at 61–62. Valle was warned that accessing law
14 enforcement databases for non‐official purposes was improper and that the
15 penalties for so doing included termination and prosecution. And Valle
16 concedes that he had no legitimate law enforcement purpose when he queried
17 the database for the name “Maureen Hartigan.” See Valle, 301 F.R.D. at 110 (“It is
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undisputed that Valle 1 had no law enforcement purpose for querying Hartigan’s
2 name . . . .”).
3 The majority nonetheless holds that, because Valle possessed the technical
4 credentials to access the NCIC database and query Hartigan’s name, he did not
5 exceed his authorized access by so doing. See Maj. Op. at 29, 37–38. In reaching
6 this result, the majority discovers ambiguity in the statutory language where
7 there is none. Under the plain language of the statute, Valle exceeded his
8 authorized access to a federal database in violation of the CFAA.
9 Statutory construction must “begin with the language employed by
10 Congress and the assumption that the ordinary meaning of that language
11 accurately expresses the legislative purpose.” Shi Liang Lin v. U.S. Dep’t of Justice,
12 494 F.3d 296, 305 (2d Cir. 2007) (en banc) (internal quotation marks omitted), cert.
13 denied, 553 U.S. 1053 (2008). “Congress says in a statute what it means and means
14 in a statute what it says there.” Id.
15 As the majority concedes, a preponderance of our sister circuits
16 interpreting the term “exceeds authorized access” have concluded that the
17 statute unambiguously encompasses conduct of the type engaged in by Valle.
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See Maj. Op. at 31; see also United States v. 1 Rodriguez, 628 F.3d 1258, 1263 (11th Cir.
2 2010), cert. denied, 131 S. Ct. 2166 (2011); United States v. John, 597 F.3d 263, 270–73
3 (5th Cir. 2010); Int’l Airport Ctrs., LLC v. Citrin, 440 F.3d 418, 420–21 (7th Cir.
4 2006); EF Cultural Travel BV v. Explorica, Inc., 274 F.3d 577, 581–84 (1st Cir. 2001).
5 The Eleventh Circuit, in United States v. Rodriguez, affirmed the conviction of a
6 Social Security Administration employee who obtained personal information
7 about former girlfriends and other women from federal databases that he was
8 authorized to use only for business reasons. 628 F.3d at 1260–63. Rodriguez
9 argued that he did not violate Section 1030(a)(2)(B) because he accessed
10 databases that he was authorized to use as a Social Security Administration
11 employee. See id. at 1263. The Eleventh Circuit rejected his argument, explaining
12 that Rodriguez clearly “exceed[ed] his authorized access” because “his access of
13 the victims’ personal information was not in furtherance of his duties” as an
14 employee. Id.
15 Similarly, in United States v. John, the Fifth Circuit found that a bank
16 employee exceeded her authorized access when, in order to facilitate fraud, she
17 accessed confidential customer information in contravention of her employer’s
UNITED STATES V. VALLE
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restrictions on computer use. 1 597 F.3d at 270–73. There, as here, the defendant
2 was aware that her employer’s “official policy,” which was reiterated in training
3 programs she attended, “prohibited misuse of the company’s internal computer
4 systems and confidential . . . information.” Id. at 272.
5 The majority concludes that these courts “looked only at the culpable
6 behavior of the defendants before them, and failed to consider the effect on
7 millions of ordinary citizens caused by the statute’s unitary definition of ‘exceeds
8 authorized access.’” Maj. Op. at 36 (internal quotation marks omitted). It notes
9 concerns, articulated by two of our sister circuits, about the potentially expansive
10 scope of the CFAA.4 See id. at 31, 35–36, 38 (discussing United States v. Nosal, 676
11 F.3d 854, 859–63 (9th Cir. 2012) (en banc) (observing that a broad construction of
12 the CFAA “would make criminals of large groups of people who have little
4 These concerns address Section 1030(a)(2)(C) of the CFAA, which prohibits exceeding
authorized access to a computer to obtain “information from any protected computer.” 18
U.S.C. § 1030(a)(2)(C). The CFAA defines “protected computer” as, among other things, a
computer “which is used in or affecting interstate or foreign commerce or communication,” id.
§ 1030(e)(2)(B), a definition that has been interpreted to encompass any computer with an
internet connection, see United States v. Yücel, 97 F. Supp. 3d 413, 418–19 (S.D.N.Y. 2015)
(collecting cases and noting “widespread agreement in the case law” that “protected computer”
includes any internet‐connected computer). Valle was not charged under Section 1030(a)(2)(C).
UNITED STATES V. VALLE
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reason to suspect they are committing a 1 federal crime” (internal quotation marks
2 omitted)), and WEC Carolina Energy Sols. LLC v. Miller, 687 F.3d 199, 206 (4th Cir.
3 2012), cert. dismissed, 133 S. Ct. 831 (2013)).
4 The majority opinion, apparently without irony, concludes that giving
5 effect to the plain language of the statute would somehow “place us in the
6 position of [the] legislature.” Maj. Op. at 35. But where, as here, the statute’s
7 language is plain and unambiguous, the “sole function of the courts is to enforce
8 it according to its terms.” United States v. Ron Pair Enters., Inc., 489 U.S. 235, 241
9 (1989); accord United States v. DiCristina, 726 F.3d 92, 96 (2d Cir. 2013), cert. denied,
10 134 S. Ct. 1281 (2014). It may well be that the CFAA sweeps broadly. But such is
11 a matter for policy debate, see United States v. Rodgers, 466 U.S. 475, 483 (1984)
12 (“Resolution of the pros and cons of whether a statute should sweep broadly or
13 narrowly is for Congress.”), and the Congress is free to amend the statute if it
14 chooses, see Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 576 (1982) (“The
15 remedy for any dissatisfaction with the results in particular cases lies with
UNITED STATES V. VALLE
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Congress and not with 1 this Court. Congress may amend the statute; we may
2 not.”).5 “Any other conclusion, while purporting to be an exercise in judicial
3 restraint, would trench upon the legislative powers vested in Congress by Art. I,
4 § 1, of the Constitution.” Dep’t of Housing & Urban Dev. v. Rucker, 535 U.S. 125,
5 134–35 (2002) (internal quotation marks omitted); cf. Dennis v. United States, 341
6 U.S. 494, 526 (1951) (Frankfurter, J., concurring) (“[W]e must scrupulously
7 observe the narrow limits of judicial authority even though self‐restraint is alone
8 set over us. Above all we must remember that this Court’s power of judicial
9 review is not an exercise of the powers of a super‐Legislature.”).
10 The majority invokes the rule of lenity in support of its view. See Maj. Op.
11 at 35–38. The doctrine is a “rule of last resort.” Oppedisano v. Holder, 769 F.3d
5 See also Principal Deputy Assistant Attorney General David Bitkower Delivers Keynote Address at
George Washington Law Review Symposium entitled “Hacking into the Computer Fraud and Abuse
Act,” U.S. Dep’t of Justice (Nov. 6, 2015), http://www.justice.gov/opa/speech/principal‐deputyassistant‐
attorney‐general‐david‐bitkower‐delivers‐keynote‐address (describing proposed
amendment to CFAA to clarify definition of “exceeds authorized access”); Cyber Crime:
Modernizing our Legal Framework for the Information Age: Hearing Before the Subcommittee on Crime
and Terrorism of the Senate Committee on the Judiciary, 114th Cong. (2015) (statement of David M.
Bitkower, Deputy Assistant Attorney General, Department of Justice), available at
http://www.judiciary.senate.gov/imo/media/doc/07‐08‐15%20Bitkower%20Testimony.pdf
(describing proposed amendments to limit breadth of CFAA).
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147, 153 (2d Cir. 2014) (internal quotation marks 1 omitted), cert. denied, 136 S. Ct.
2 211 (2015); see also Reno v. Koray, 515 U.S. 50, 65 (1995) (“The rule of lenity applies
3 only if, after seizing everything from which aid can be derived, we can make no
4 more than a guess as to what Congress intended.” (internal citations and
5 quotation marks omitted)). It “serves to aid the court in interpreting a criminal
6 statute only if there is an ambiguity,” and it cannot be “used to narrow a statute
7 that has an unambiguously broad thrust.” United States v. Litchfield, 986 F.2d 21,
8 22 (2d Cir. 1993) (per curiam); see also Abramski v. United States, 134 S. Ct. 2259,
9 2272 n.10 (2014) (“The dissent would apply the rule of lenity here because the
10 statute’s text, taken alone, permits a narrower construction, but we have
11 repeatedly emphasized that is not the appropriate test.”).
12 The majority concludes that the “sharp division” among our sister circuits
13 means that whether the statute proscribes Valle’s conduct cannot be resolved
14 simply by looking at the text of the statute, requiring us to “turn to the legislative
15 history and motivating policies for further guidance.” Maj. Op. at 31. To the
16 contrary, however, the Supreme Court has explained that “[a] statute is not
17 ambiguous for purposes of lenity merely because there is a division of judicial
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authority over 1 its proper construction.” Reno, 515 U.S. at 64–65 (internal
2 quotation marks omitted); see also DiCristina, 726 F.3d at 104 (“A statute is not
3 ‘“ambiguous” for purposes of lenity merely because it [i]s possible to articulate a
4 construction more narrow than that urged by the Government.’” (quoting Moskal
5 v. United States, 498 U.S. 103, 108 (1990))).
6 Therefore, “[w]here statutory . . . provisions unambiguously cover the
7 defendant’s conduct,” as Section 1030(a)(2)(B) clearly proscribes Valle’s conduct
8 here, the rule of lenity “does not come into play.” Litchfield, 986 F.2d at 22; see,
9 e.g., DePierre v. United States, 131 S. Ct. 2225, 2237 (2011) (explaining that the rule
10 of lenity was inapplicable “[b]ecause the statutory text allows us to make far
11 more than a guess as to what Congress intended” (internal quotation marks
12 omitted)); Rodgers, 466 U.S. at 484 (concluding that criminal statute was “not
13 sufficiently ambiguous . . . to permit the rule [of lenity] to be controlling”); see
14 also Yates v. United States, 135 S. Ct. 1074, 1098–99 (2015) (Kagan, J., dissenting)
15 (“Lenity offers no proper refuge from [a] straightforward (even though
16 capacious) construction.”). For the same reason, I also have no occasion to refer
17 to the statute’s legislative history. See United States v. Woods, 134 S. Ct. 557, 567
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n.5 (2013) (Scalia, J.) (“Whether or not 1 legislative history is ever relevant, it need
2 not be consulted when, as here, the statutory text is unambiguous.”); Puello v.
3 Bureau of Citizenship & Immigration Servs., 511 F.3d 324, 331 (2d Cir. 2007)
4 (Katzmann, J.) (“Because we believe the language in the statute is unambiguous,
5 we need not examine legislative history to divine the statute’s meaning.”).
6 I emphasize that I take no position on the applicability of Section
7 1030(a)(2)(B) in other circumstances or the scope or validity of other provisions of
8 the CFAA, which are not at issue here.6 Because I find that Section 1030(a)(2)(B)
9 of the CFAA clearly proscribes Valle’s conduct, I would affirm.
6 The majority apparently rules not on the issue presented on this appeal—whether Valle’s
conduct is proscribed by the CFAA—but on the application of this statute to other
circumstances not implicated here. See Maj. Op. at 38 (explaining that, “[w]hatever the apparent
merits of imposing criminal liability may seem to be in this case,” the majority is “constru[ing]
the statute” for the purposes of “many other situations”). Because the majority’s ruling might
“impact[] many more people than Valle,” it rejects the government’s reasonable proposal that
we let concerns about “the risk of criminalizing ordinary behavior” be addressed in due course
when raised “by individuals actually affected by the provision at issue.” Id. at 37 (internal
quotation marks omitted). In my view, the majority’s approach is unwise and improper. See
Costello v. INS, 311 F.2d 343, 348 (2d Cir. 1962) (“[W]e think the exercise of a proper judicial
restraint makes it undesirable for us to reach out and now decide more than the circumstances
of this case require us to decide.”), rev’d on other grounds, 376 U.S. 120 (1964).
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1 CONCLUSION
2 I would vacate the District Court’s judgment of acquittal in respect of
3 Count I, affirm the District Court’s judgment of conviction in respect of Count II,
4 and remand for further proceedings. Therefore, I respectfully dissent.

Outcome: For these reasons, we AFFIRM the judgment of acquittal as to
the count of conspiracy to kidnap, and REVERSE the judgment of
conviction as to the count of improperly accessing a computer in
violation of the CFAA.

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