Wednesday, September 03, 2008

Aiding and Abetting the Crime of Exceeding Access to a Computer

That’s a long title, but I can’t come up with anything shorter that captures what this post is about.

Let’s start with the facts in U.S. v. Reyeros, 2008 WL 2924837 (Third Circuit Court of Appeals 2008), the case this post is about:
[In 1999, Juan Reyeros asked Hernan Uribe] for help identifying an American company through which . . . cocaine could be imported into the United States. [Juan told Uribe his brother] Jorge [Reyeros] was a Customs inspector and could use that position to ensure containers containing drugs could enter the United States without being inspected.

Uribe . . . sought the help of [Rafael] Garravito-Garcia to find an American company to receive the smuggled cocaine. Garravito-Garcia . . . contacted an American acquaintance, James Lagrotteria, for assistance. Unbeknownst to the conspirators, . . . Lagrotteria was an informant for Customs and the United States Drug Enforcement Administration (“DEA”).

Garravito-Garcia introduced Uribe to Lagrotteria in Colombia in March 1999 and the . . . men met to discuss plans to import cocaine into the United States. Lagrotteria was tasked with identifying an American company suitable for receiving the imported cocaine. Lagrotteria was told that the conspirators were working with a Customs official and that the official planned to check a Customs computer database to see if any company Lagrotteria identified had been flagged by Customs as having previously imported contraband.

In April 1999, Customs and DEA agents fabricated records for a fictitious company they named `TJ Import Produce.’ They put the records in a Customs database and, on April 8 . . . Lagrotteria informed Garravito-Garcia that he had identified TJ Import Produce as a potential recipient of the cocaine the conspirators hoped to import. A few days later, on April 12, . . ., Jorge accessed the Customs computer database and examined the mock importation and inspection records for TJ Import Produce. Subsequently, Uribe informed Lagrotteria that TJ Import Produce had been investigated and was suitable.

Later . . . Lagrotteria traveled to Colombia to meet Juan and to discuss . . . the . . . plans to import cocaine. Uribe informed Juan and Lagrotteria he was having trouble locating 500 kilograms of cocaine. Juan responded that, to make the conspiracy worth the risks involved, they needed to import at least 500 kilograms of cocaine. . . .

[I]nstead of shipping cocaine directly from Colombia to the United States, the[y] planned to ship the drugs through Ecuador, concealed in a cargo container purportedly holding bananas. . . . Juan explained that the . . . drugs should be shipped from . . . because Jorge had said it was `impossible to take anything out of Colombia.’ . . . The[y] never actually carried out their plan, however, because they were not able to acquire cocaine.
U.S. v. Reyeros, supra. They may never actually carried out their plan, but they were still indicted by a federal grand jury:
Counts 1 through 4 . . . named only Jorge [Reyeros] and charged him. . . with conspiracy to import cocaine, . . . and . . . exceeding authorized access to a Customs computer, in violation of 18 U.S.C. § 1030(a) and 2. Specifically, the Indictment alleged that . . . Jorge conspired . . . to import into the United States cocaine concealed in cargo containers. It also alleged that Jorge had, on multiple occasions . . . unlawfully accessed a Customs computer database, obtained information identifying containers designated for inspection by Customs, and provided that information to his co-conspirators in furtherance of the conspiracy.
U.S. v. Reyeros, supra. Counts 5 and 6 of the indictment charged Juan and Jorge Reyeros, Uribe and Garravito-Garcia with conspiring to import cocaine and with aiding and abetting Jorge Reyeros’ exceeding authorized access to the Customs computer.

At trial, the jury acquitted Jorge Reyeros of the charges in Counts 1-4, but convicted him and his brother Juan of the charges in Counts 5 and 6 . . . which really doesn’t make any sense. The jury’s verdict means it found (a) that Jorge did not conspire to import cocaine and did not exceed his authorized access to a Customs computer as charged in Counts 1-4 but (b) found him guilty of conspiring to import cocaine as charged in Count 5 and guilty of aiding and abetting his own unauthorized use of the Customs computer. (I don’t know what the jury did as to Uribe and Garravito-Garcia, since this opinion is only about the Reyeros brothers.)

The rationality of the jury’s verdict concerning the Reyeros brothers is not, though, what I want to write about. What I want to write about is the exceeding authorized access and aiding and abetting exceeding authorized access charges.

Counts 2-4 of the indictment charged Jorge with exceeding his authorized access to the Customs computer. There were three counts because each count was predicated on a different instance when he used the Customs computer improperly; as I’ve noted before, a “count” in an indictment or other charging document (an information, or a complaint) charges one “crime.” Since each act of gaining unauthorized access to the Customs computer was a crime, it followed that the indictment would charge three crimes in three counts.

Section 1030 of Title 18 of the U.S. Code makes it a crime to (a) gain unauthorized access to a computer (an “outsider” hacks into a system without permission) and (b) exceed one’s authorized access to a computer. Here, Jorge was authorized to use the Customs computer for U.S. Customs business; he was not authorized to use it, as the indictment alleged, to help out people who wanted to smuggle cocaine into the U.S. In using the Customs computer for that purpose, Jorge exceeded the scope of his authorized access to the system, and committed a crime. I did a blog post about this crime a couple of years ago; you can read that post if you’d like to know more about it.

But Jorge was the only one of the people involved in this conspiracy to import cocaine who COULD commit the exceeding authorized access crime. For one thing, the others apparently had no way to access the Customs computer; and if they had, their access would have been unauthorized -- the (a) crime above, not the (b), exceeding authorized access crime.
They were, though, charged with aiding and abetting Jorge’s exceeding his authorized access to the Customs Computer. This charge appeared in Count 6 of the indictment and we know Juan and Jorge were convicted on that count; for the purpose of analysis, I’m going to assume that Uribe and Garravito-Garcia were also convicted on that count.

As I’ve mentioned before, aiding and abetting is the way the criminal law reaches out and holds people liable for encouraging someone else to violate the law. Aiding and abetting – or accomplice liability -- applies even though Juan Reyeros, Garravito-Garcia and Uribe were themselves incapable of committing the crime of exceeding authorized access to the Customs computer. The theory of aiding and abetting – or accomplice – liability is that if you encourage someone to commit a crime, you are at least to some extent responsible for causing the commission of that crime, and should be held liable for what you set in motion.

Here, it doesn’t matter that when Jorge Reyeros exceeded his authorized access to the Customs computer to see if the TJ Import Produce company would be a suitable conduit for the cocaine he was checking on a company that did not exist. In other words, it does not matter, as far as the law of aiding and abetting is concerned, that he had been set up and was really not doing anything that would promote the conspiracy to import cocaine.

That fact is irrelevant as far as Jorge’s liability for exceeding his authorized access to the Customs computer because that crime was committed when he used the computer in a way he was not authorized to; his purpose in exceeding his legitimate access to that computer is irrelevant insofar as the computer crime charge is concerned. He knew he was using the computer to do something he was not supposed to do and that constitutes the commission of this crime. And since he committed the crime, the others are liable for their role in “causing” him to commit the exceeding authorized access crime.

This is one of those cases where would-be criminals get themselves convicted of a tangential offense even though they failed to commit the crime that was their goal. These guys never actually imported cocaine because they couldn’t get any, but their failure doesn’t prevent their being charged with conspiring to import cocaine and exceeding authorized access.

By the way, the federal judge who handled the trial sentenced Jorge to serve 292 months in prison and sentenced Juan to 235 months in prison. On July 31, the U.S. Court of Appeals for the Third Circuit affirmed their convictions, so it looks like they’re stuck in prison for a long time.

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