Monday, August 25, 2008

Computer Fraud and Conspiracy . . . ?

Conspiracy is a traditional common law crime, one that has become very popular in modern U.S. law. Learned Hand, a distinguished federal judge for almost forty years, said conspiracy was “the darling of the modern prosecutor’s nursery” because it is used so often and in so many ways.

Sometimes I think you can say that of computer crime statutes, as well. Some of them are used in novel and, on occasion, at least arguably improper ways (like the federal computer crime charge against Lori Drew for her contribution to Megan Meier’s suicide).

Today I want to write about an interesting case from Louisiana that combines conspiracy and computer crime. I have no problem concluding that what the defendant did was “wrong,” was a crime, but I think the charges brought against her are interesting . . . I’m not sure they would have been my first choice.

The case is from New Orleans. Here is a summary of the facts, taken from a judicial opinion and a news story: Five years ago, Glenda Spears, a criminal defense attorney, and Angela Kirkland, a probation officer, came up with a scheme to get judges to release probationers who paid them off. The scheme targeted probationers who faced court-ordered drug testing or other conditions of their probation.

According to the indictment returned in the case, Kirkland, a former drug court counselor, would urge drug court probationers to hire Glenda Spears as their lawyer "if they wanted to be released from probation." Spears would charge each probationer a fee for obtaining his or her release, and give half of the bribe to Kirkland, according to the indictment. The indictment says Kirkland would then recommend to the judge that the probationer be released. As the local U.S. Attorney noted after the scheme came to light, "Both state and federal court judges routinely follow the recommendations of probation officers whom they believe are acting in good faith,” so the scheme worked.

(For more detail on the facts, see Gwen Filosa, Lawyer, Ex-Drug Court Worker Indicted, New Orleans Times Picayune 1 (August 13, 2004) and In re Spears, 964 So.2d 293 (Supreme Court of Louisiana 2007).

The scheme began to unravel in April of 2004, when the Chief Judge of the Orleans Parish Criminal District Court told the FBI that someone who was “on drug probation was complaining that his probation officer, Angela Kirkland, was pressuring him to pay $500 in order to be released from probation and aftercare.” In re Spears, supra. The man who was on probation
agreed to cooperate with law enforcement and to record his conversations with Ms. Kirkland. On April 26, 2004, the probationer met Ms. Kirkland, and in a recorded conversation, she accepted $360, a portion of the requested $500 payment. During the conversation, Ms. Kirkland told the probationer that as a result of the payment he would be released from drug court probation and aftercare. Shortly thereafter, Ms. Kirkland recommended to the sentencing judge that the defendant be released from probation and aftercare, and he was released.
In re Spears, supra. The investigation continued, as FBI agents and officers from the
New Orleans Police Department (NOPD) began interviewing other[s] . . . who had been released from probation. This . . . revealed that Spears, who was then employed by the Orleans Indigent Defender Program had received a $500 payment from a probationer on November 15, 2003. Spears split this fee with Ms. Kirkland, who . . . recommended to the court that the probationer be released from probation. The judge accepted this recommendation, and the probationer was released from probation.

On July 12, 2004, the FBI and the NOPD approached Ms. Kirkland, who admitted that she had engaged in criminal activity. She also implicated Spears in the scheme. . . . With Ms. Kirkland's cooperation, agents . . . taped three . . . calls [in which] Kirkland told Spears that she had . . . other probationers who wanted to be released from probation. . . . Spears said that the fee . . . would be $2,500 per probationer. . . .

[O]n July 16, an . . . agent posing as a probationer met with Spears and paid her $2,500. During the meeting, which was . . . recorded . . ., Spears accepted the . . . payment and agreed that the probationer would be released from probation because she was working with Ms. Kirkland. Spears [met[ with Ms. Kirkland and split . . . the $2,500 [with her].

On July 21, . . . , Spears met with another . . . agent posing as a probationer. This meeting was also . . . recorded . . . and Spears again . . . received $2,500 from the agent. After the payment was made, Spears met Ms. Kirkland under the overpass at Poydras and North Broad Streets and paid her $1,250. That money was recovered by the FBI and Spears was immediately arrested.
In re Spears, supra.

Sounds like a local bribery (and maybe some kind of obstruction of justice) case, doesn’t it? Well, it became a federal computer crime case. Why, you ask? The “why” really encompasses two issues: The first is why a FEDERAL case. The other is why a federal COMPUTER CRIME case, instead of a federal bribery case.

As to the first question, I can only speculate, but it’s pretty common in a case of criminal corruption in a local justice system for the crimes to be charged federally, instead of locally, for some practical reasons. It’s easier for federal authorities to prosecute local officials because they don’t work in the same system and haven’t been colleagues of the people who are being prosecuted. It can also enhance the appearance of fairness in the proceeding because the federal prosecutors who bring the case and the federal judge who handles it have no ties to the defendants -- no reason not to be perfectly impartial. That might have been a significant factor in this case because Spears “is the sister of lawyer and former Judge Ike Spears, and the sister-in-law of 1st City Court Judge Sonja Spears.” Gwen Filosa, Lawyer, Ex-Drug Court Worker Indicted, supra.

But what we really care about is the second question. There are federal bribery statutes, so charges might have worked here, but maybe not. Maybe neither Spears or Kirkland qualify as “public officials” under 18 U.S. Code § 201, which is the basic federal bribery statute. That could explain why this became a federal computer crimes case.

That is what it became: Spears was charged with computer fraud under 18 U.S. Code § 1030(a)(4) and with conspiracy to commit computer fraud under 18 U.S. Code § 371. (I’m not sure about Kirkland; I can’t find any reports of what she was charged with, if anything.)

Section 1030(a)(4) makes it a federal crime to “knowingly and with intent to defraud, access a . . . computer without authorization, or exceed authorized access, and by means of such conduct furthers the intended fraud and obtains anything of value”. The prosecution’s theory was that Spears “actions constituted computer fraud because she affected the Orleans Parish Criminal District Court Docket Master Computer, where all entries involving a defendant's case are maintained.” In re Spears, supra. The computer “provides case numbers, defendants’ names, charges, court minutes and other key information related to” charges before this court. Gwen Filosa, Lawyer, Ex-Drug Court Worker Indicted, supra.

Where was the fraud, you ask? Well, the prosecution’s theory was that Spears and Kirkland put false information into the computer "`to release a person from probation for the personal gain of something of value.’" Gwen Filosa, Lawyer, Ex-Drug Court Worker Indicted, supra. The result is fraud, and since they used a computer, however tangentially, to carry out the fraud their actions constituted federal computer fraud, which is punishable by a fine and up to 5 years in prison.

The conspiracy charge under 18 U.S. Code § 371 is very simple: Section 371 makes it a crime to conspire to commit a federal crime. Conspiracy is, in essence, a criminal contract: The crime is committed when two or more people agree to the commission of a crime, a federal crime in this instance. Since what Spears and Kirkland did constituted federal computer crime (under the prosecution’s theory), and since they both agreed to commit the crime, we have conspiracy to commit computer fraud, which adds another 5 years in prison to the punishment Spears would get if convicted.

Not surprisingly, given all those recorded phone calls and meetings, Spears pled guilty. In a stroke of irony, she was sentenced to 3 years probation. She was put on home detention for 6 months, and required to wear an electronic monitoring device. Spears was also fined $10,000 and ordered to perform 200 hours of community service after she completed home detention. In re Spears, supra. She was permanently disbarred by the Louisiana Supreme Court, which means she’ll never practice law there (or probably anywhere else) again.

My focus, though, is not on the penalty she received (which actually doesn’t seem like that much), but on the charges. This is an instructive case: Note, first, how what doesn’t really SEEM like a federal computer crime case can become one; the incidental use of the court’s computer transformed what I see as a state bribery case into a computer crime case. That’s one of the interesting aspects of federal criminal law: It can have a very expansive reach.

Also note how useful conspiracy is. Perhaps you see why Learned Hand called it the prosecutor’s “darling:” If the commission of a crime involves 2 or more people, you pretty much have an automatic conspiracy charge, which ratchets up the penalty and has certain other consequences, such as letting a lot of people be tried together. If the evidence hadn’t been as strong and if Kirkland hadn’t cut a deal, the two might well have gone to trial . . . together, which might well have meant that they were pointing fingers at each other, trying to save themselves by dooming the other. That’s often an inevitable, perhaps irresistible, strategy, but it only works to the prosecution’s advantage. If the defendants are blaming each other, they both look bad.

On a side note, it’s really depressing and aggravating to see a lawyer do something like this.

No comments: