On December 1, 2008, the U.S. Department of Justice filed an
information, alleging that
on five occasions between
January 19, 2007 and July 5, 2007, [Mark Thomas Rossini] `intentionally and
knowingly exceeded his authorized access to a protected computer belonging to
the Federal Bureau of Investigation, an agency of the United States headquartered
in the District of Columbia, and by such act obtained information from the
Federal Bureau of Investigation that he was not permitted to receive,’ in
violation of Title 18 of the U.S. Code § 1030(a)(2)(B), the Computer Fraud and Abuse Act. . . . On December 8, 2008, [Rossini]
entered a guilty plea as to all charges in the information.
Rossini v. U.S., 2014
WL 5280531 (U.S. District Court for the District of Columbia 2014).
In pleading guilty, Rossini
conceded that the following facts were
true:
`Between January 3, 2007 and July 30,
2007, the defendant made over 40 searches of the ACS for FBI information that
were for purely personal purposes, and not connected to FBI business. Each of
these searches exceeded the defendant's authorized use of the ACS system, and
were [sic] not part of any of his assigned work. As part of these searches, the
defendant obtained information to which he was not entitled.’
Rossini v. U.S.,
supra. The ACS was the FBI’s
Automated Case Support System; as this press release explains, in 2013 the FBI
replaced the “paper-based” ACS System with a new digital system. If you would like to know more about the
facts involved in this prosecution, check out the news stories you can find here
and here. The story you can find here says Rossini "passed" an FBI document to "actress Linda Fiorentino "to help the defense lawyers for rogue detective Anthony Pellicano".
On May 14, 2009, Rossini was sentenced to
1) twelve months of
probation for each of the five counts, to run concurrently; 2) a special assessment fee of $125; 3) a fine of $5,000 to be paid at a monthly rate of
$250; and 4) 250 hours of community service. . . . Since judgment was
imposed, [he] completed payment on the Court-imposed fines, his supervised
release was terminated, and he completed his community service. U.S. v Rossini, supra.
And in June of 2014, he filed a Motion for Writ of Error Coram Nobis. Docket, U.S. v. Rossini, Case No. 1:08-MJ-00692. As the District Court Judge in this case
explained,
`[t]he writ of coram nobis is
an ancient common-law remedy designed “to correct errors of fact.”’ U.S.v. Denedo, 556 U.S. 904 (2009) (quoting U.S. v. Morgan, 346 U.S. 502 (1954)). Originally, the writ was intended as a means of correcting `technical
errors.’ U.S. v. Denedo, supra.
Today it is used to correct
`fundamental errors,’ when no other remedy is available. U.S. v. Denedo, supra. Thus, `coram nobis . . . may collaterally attack only constitutional or jurisdictional errors or serious defects in the
trial either not correctible on direct appeal or where exceptional
circumstances justify the failure to appeal on those grounds.’ U.S. v.
McCord, 509 F.2d 334 (U.S. Court of Appeals for the D.C. Circuit 1974).
Rossini v. U.S.,
supra.
He went on to explain that in his opinion in U.S. v.
Williams, 630 F.Supp.2d 28 (U.S. District Court for the District of
Columbia 2009),
Judge Hogan indicated that `the D.C.
Circuit's precedent in this area is thin.’ . . . He pointed to the
leading case, U.S. v. Hansen, 906 F.Supp. 688 (U.S. District
Court for the District of Columbia 1990), in which Judge Joyce Hens Green . . .,
in the absence of D.C. Circuit authority for analyzing a petition for a writ of
error coram nobis, looked to the practice of the 3rd, 4th, 9th
and 10th Circuits. U.S. v. Hansen,
supra.
Under their precedents, relief by writ
of coram nobis was only available when: `(1) a more usual
remedy is not available; (2) valid reasons exist for not attacking the
conviction earlier; (3) adverse consequences exist from the conviction
sufficient to satisfy the case or controversy requirement of Article III; and
(4) the error is of the most fundamental character. U.S. District Court
for the District of Columbia. Accord U.S. v. Akinsade, 686
F.3d 248 (U.S. Court of Appeals for the 4th Circuit 2012); Klein
v. U.S., 880 F.2d 250, 254 (U.S. Court of Appeals for the 10th Circuit 1989); Hirabayashi v. U.S., 828 F.2d 591, 604 (U.S.Court of Appeals for the 9th Circuit 1987).
Rossini v. U.S.,
supra. This judge decided he would “follow
Judge Hogan's and Judge Green's lead and apply those factors.” Rossini
v. U.S., supra.
He therefore began his analysis with the first factor, i.e.,
whether a “more usual remedy” was available.
Rossini v. U.S., supra. The judge noted that both Rossini and the
government agree that because [he]
waived his right to an appeal when he accepted the plea agreement, and because he has now completed the various elements of his sentence, the more usual
remedies of either a direct appeal or a motion for habeas corpus relief
pursuant to 28 U.S. Code § 2255 . . . are not available. .
. . . Thus [Rossini] has satisfied the first of the coram nobis requirements.
Rossini v. U.S.,
supra.
Next, the judge took up the second issue – valid reasons for
not attacking his conviction sooner. Rossini v. U.S., supra. Rossini’s argued that he did not do so because
there
was a change in the law governing his
conviction. . . . [He] claims it was not until this Court issued its decision
in Lewis–Burke Assocs., LLC v. Widder, 725 F. Supp. 2d 187 (U.S.
District Court for the District of Columbia 2010) and the 9th Circuit
issued its decision in U.S. v. Nosal, 642 F.3d 781 (U.S. Court of
Appeals for the 9th Circuit 2011), that he became aware he had grounds to file
a petition for a writ of coram nobis.
Rossini v. U.S.,
supra.
The judge went on to explain that Rossini’s argument was “flawed”
because
both the Widder and Nosal decisions
adopted the 9th Circuit's reasoning in LVRC Holdings LLC v. Brekka, 581
F.3d 1127 (U.S. Court of Appeals for the 9th Circuit 2009), . . . issued in
2009, well before [his] current filing, which occurred five years later on June
6, 2014. . . .The government also argues that [Rossini] could have based his
argument on the reasoning in Shamrock Foods Co. v. Gast, 535
F. Supp.2d 962 (U.S. District Court for the District of Arizona 2008), . . . in
which the court ruled on the application of the [Computer Fraud and Abuse Act]
to conduct similar to that at issue in this case. . . . The
government's arguments are persuasive because there was authority in existence
well before [he] filed his current petition . . . which could have supported
the argument he makes now.
Rossini v. U.S.,
supra.
The District Court Judge then went on to explain that “even”
if this court’s decision
in Widder had been
deemed to apply retroactively, which it was not, [Rossini] still
lacked a valid reason for not attacking his conviction earlier because the
argument he now advances has in fact previously been successfully asserted,
albeit not in this circuit. On February 20, 2008, the District Court for the
District of Arizona issued its decision in Shamrock. In that
case, a civil action, the court unequivocally held that `[t]he
general purpose of the [Computer Fraud and Abuse Act] ‘was to create a cause of
action against computer hackers (e.g., electronic trespassers).’
To that end, the court concluded the
following with respect to sections 1030(a)(2) and section (4) of
the Computer Fraud and Abuse Act:
`Given the plain language, legislative
history, and principles of statutory construction, the restrictive view of
authorization is adopted. [A] violation for accessing without authorization
occurs only where initial access is not permitted. And a violation for
exceeding authorized access occurs where initial access is permitted but the
access of certain information is not permitted.’
Shamrock Foods Co. v. Gast, supra. . . .
Less than two years later, . . . the [U.S.
Court of Appeals for the 9th Circuit] issued its decision in LVRC
Holdings LLC v. Brekka, supra. In that case, a company sued a former
employee for violating sections 1030(a)(2) and (4) of the [Computer Fraud and
Abuse Act] by accessing its computer without authorization
and in excess of authorizations. First, the court noted that `an
employer gives an employee “authorization” to access a company computer when
the employer gives the employee permission to use it.’ LVRC Holdings LLC v.
Brekka, supra.
Thus, the court concluded that because
the company gave the employee permission to access its computer, he did not act
`without authorization’ when he acted for purposes contrary to the company's
interest, both while employed by the company and then after he left the
company. LVRC Holdings LLC v. Brekka, supra. For the same
reason, the court also concluded that the employee did not `exceed
authorization.’ LVRC Holdings LLC v. Brekka, supra. . . . The
court clearly stated therefore that an individual violates the above two
sections of the Computer Fraud and Abuse Act by accessing data for which he
lacks authorization, not for using data that he is authorized to access for
purposes contrary to the company's interest.
Finally, on July 28, 2010, this Court
issued its decision in Lewis–Burke Assocs., LLC v. Widder, supra. .
. . [T]he issue . . . was whether an employee violated the Computer Fraud and
Abuse Act by taking confidential and proprietary computer data with him when he
left the company where he used to work, in violation of [18 U.S. Code § 1030(a)(2)].
. . .[T]his Court also noted that the primary purpose of the Computer Fraud and
Abuse Act was to deter computer hacking. . .Then, following the Brekka line
of cases, this Court noted that when an employer gives an employee permission
to use its computer system, it is giving that employee authorization to access
the data contained therein. . . . [T]his Court concluded that `[w]hether
[an employee] had permission to copy documents onto his thumb drive or to
subsequently use the data from a non-[work] computer, after he had left its
employ, is not a question that relates to his liability under the Computer
Fraud and Abuse Act’.”
[T]he information against [Rossini] was
filed on December 1, 2008, almost ten months after the . . .Shamrock decision
was issued. Understandably, even if [he] had been aware of the Shamrock opinion,
he may not have felt compelled to base his motion for a writ of coram
nobis upon the authority of a case from the District Court for the
District of Arizona.
However, when the 9th Circuit issued
its September 15, 2009 opinion in LVRC Holdings LLC v. Brekka, supra,
[Rossini] should have been compelled to file the current motion. . . .
[A]s of . . . the Brekka decision, which was issued four months
after [he] was sentenced, he should have been aware there was circuit authority
for the proposition that he was not guilty of a misdemeanor violation of the [Computer
Fraud and Abuse Act] when he accessed FBI information for personal reasons.
Nothing whatsoever justifies his delay.
Rossini v. U.S., supra
(emphasis in the original).
The judge then took up the third factor: adverse consequences. Rossini v. U.S., supra. Rossini argued that, “as a former FBI
counterterrorism specialist who has been convicted of violating the [Computer
Fraud and Abuse Act], he has not been able to obtain work in his field of
expertise.” Rossini v. U.S., supra. The
U.S. Department of Justice conceded that
while it is true that adverse
consequences flow from a criminal conviction, it argues that not every person
who has been convicted of a crime is entitled to a writ of coram nobis.
. . . The government also notes the
following: `His admitted behavior in conducting personal searches of the FBI
database, obtaining information from that database, and sharing it with a third
party would be an obvious impediment to any effort on his part to obtain future
permanent employment in the counterterrorism field, quite separate and apart
from the conviction to which that conduct lead.’
Rossini v. U.S.,
supra.
Here, too, the judge found the government’s argument to be
“persuasive.” Rossini v. U.S., supra. He pointed
out that to satisfy the “case or controversy” requirement of
Article III, [Rossini] must show 1)
that he suffered some actual or threatened injury as a result of the
respondent's conduct; 2) that the injury resulted from the petitioner's
conduct; and 3) that the injury is likely to be redressed by a favorable
action. Valley Forge Christian Coll. v. Ams. United for Separation of Church and State, Inc., 454 U.S. 464 (1982). . . .
[E]ven if [Rossini’s] writ . . . was
granted and his conviction was vacated, the injury he claims he suffered -- that
he can no longer obtain employment in the field of counterterrorism -- would
not necessarily be redressed. . . . [Rossini] . . . admitted to having accessed
information on the FBI database, over forty times, and used it for personal
purposes. This behavior is hardly likely to make him an attractive candidate
for future work in the field of counterterrorism, where the need to maintain
secrecy is of paramount importance. . . . [H]ad [Rossini] not admitted to the
conduct at issue, vacating his judgment would have favorably redressed his
injury. Thus, [he] cannot . . . argue that the adverse consequences he suffered
were either solely the result of his conviction or . . . are sufficient to
satisfy Article III's case or controversy requirement.
Rossini v. U.S.,
supra.
Finally, the judge took up the fourth and final issue: an
“error of fundamental character”. Rossini
v. U.S., supra. The judge began by
noting that it
is hard to understand what error of a
fundamental character haunts [his] conviction. [Rossini], represented by
obviously competent counsel, chose to plead guilty and gain the benefits of
doing so when he could have demanded a trial and asserted what might have been
the successful argument that his behavior did not violate the statute. Instead,
he chose to limit his sentencing exposure by pleading guilty.
Now that the law is more favorable to
his position, he wants to undo the bargain he made and get the result he chose
not to try to get in the first place. A writ of coram nobis is
designed to cure a fundamental error, not a bad case of buyer's remorse.
Rossini v. U.S.,
supra.
He on to explain that “[a]lternatively,” Rossini “might”
argue that because the
information did not charge a crime,
this Court lacked jurisdiction over the subject matter and its exercising that
jurisdiction to convict him was a fundamental error. See, e.g., U.S. v.
Peters, 310 F.3d 709 (U.S. Court of Appeals for the 11th Circuit
2002). But, in this Circuit, it is clear that a claim that the indictment fails
to state an offense does not deprive the court of jurisdiction over the subject
matter. See U.S. v. Delgado-Garcia, 374 F.3d 1337 (U.S. Court of Appeals
for the D.C. Circuit 2004).
This is because the substantive
sufficiency of the indictment is a matter that goes to the merits of the case,
rather than to the district court's subject matter jurisdiction. U.S. v.
Delgado–Garcia, supra. Accord U.S. v. George, 676 F.3d 249 (U.S. Court of Appeals for the 1st Circuit 2012). . . . Thus, the only possible avenue of
relief [Rossini] could pursue is not available.
Rossini v. U.S.,
supra.
The U.S. District Court Judge therefore denied Rossini’s
motion. Rossini v. U.S., supra.
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