Friday, July 08, 2016

The Divorce, Extortion and Using a Computer to Commit a Crime

This post examines an opinion from the Court of Appeals of Michigan:  People v. Sedenquist, 2016 WL 3364992 (2016).  The court begins by explaining that
[a] jury convicted defendant of one count of extortion[Michigan Compiled Laws] 750.213, and one count of using a computer to commit a crime, [Michigan Compiled Laws] 752.796, and acquitted him of aggravated stalking[Michigan Compiled Laws] 750.411i. The trial court sentenced defendant to concurrent terms of 3 to 20 years' imprisonment, with credit for 10 days. Defendant appeals as of right. 
People v. Sedenquist, supra.
The court went on to explain, how, and why, the prosecution arose:
Defendant's convictions arise from his threat to accuse Carmen LaBute, his ex-wife and a registered nurse, of violating the federal Health Insurance Portability and Accountability Act (HIPAA), 42 U.S. Code § 1320d et seq., if she did not agree to certain changes in the couple's judgment of divorce (JOD).

LaBute filed for divorce in July 2012. During the pendency of the divorce, defendant lived at an isolated camp that the couple owned in Alger County and received $1,100 per month in spousal maintenance. According to defendant, he suffered from depression and seasonal affective disorder and contemplated suicide. In December 2012, defendant stopped communicating with his divorce attorney and she successfully petitioned to withdraw as his counsel approximately 10 days before the March 6, 2013 final divorce hearing. Three days before the final divorce hearing, defendant drove to Green Bay, Wisconsin, where LaBute worked as a weekend nurse for Aurora Bay Care, in the hope of convincing her to call off the divorce and intending to commit suicide if she did not. For reasons that are unclear from the record, defendant engaged in a standoff with police that resulted in defendant's confinement to a psychiatric hospital in Green Bay and his arrest while in the hospital.

Meanwhile, the final hearing in the divorce case was held in defendant's absence on March 6, 2013, and a JOD was entered. The judgment did not give defendant parenting time with his minor son or spousal support, but gave defendant until December 31, 2013, to file a motion to reinstate spousal support. LaBute received the couple's property in Alger County and $9,484.20 from defendant's Roth IRA. Her attorney, Russell Hall, drew up a qualified domestic relations order (QDRO) to transfer the money from the IRA to LaBute. Defendant refused to sign the QDRO, causing Hall to file a motion seeking authorization. Hall informed defendant of the hearing in a letter dated November 8, 2013, and in that letter invited defendant to call his office with any questions about the QDRO.
People v. Sedenquist, supra.
The opinion goes on to explain that the Defendant
telephoned Hall on November 20, 2013, two days before the scheduled QDRO hearing. According to Hall, defendant told him that LaBute had violated HIPAA numerous times by conveying to him patients' private health information and that spousal privilege no longer prevented him from reporting the violations. Defendant claimed to have written letters to seven different families whose medical information LaBute had shared with him and to have given copies of the letters to a third party. Juxtaposed to these statements were four specific requests. Defendant wanted LaBute to renounce all claims to monies from his IRA, to pay him $1,000 a month in spousal support, to change custody of their son to joint custody, and to give him first right of refusal to purchase the camp property if and when she decided to sell the property.

Hall believed an act of extortion had occurred and he and LeBute jointly decided to contact the police. As instructed by Anthony LaPlant, a detective-sergeant with the city of Escanaba public safety department, Hall e-mailed defendant the following day, November 21, 2013, asking him to come to Hall's office at 3:30 p.m. to sign the stipulation for spousal support, and to bring with him all of the letters, including the backups. Defendant did not receive the e-mail in time to attend the meeting. Defendant responded to Hall's e-mail, expressing his appreciation for Hall's `willingness to honor [his] very reasonable requests,’ and his hope that it was `the first step in doing what's right from now on.’ Defendant stated that if LaBute relinquished in good faith `all claims to all Qualified monies in my name to the court tomorrow 11/22/13, I will be open to negotiating the details on the remaining reasonable requests next week.’ On November 22, 2013, defendant sent an e-mail to Hall stating that he wanted to hear from Hall `today after you speak to your client,’ and further stating that he hoped Hall had `advised [LeBute] to cease and desist discussing anything about my medical records with anyone, she needs to better understand that a registered nurse that refuses to protect private medical information won't be a registered nurse for long.’
People v. Sedenquist, supra (emphasis in the original).
The opinion then explains that Hall obtained a two-week adjournment of the
QDRO hearing and did not contact defendant for three days while he waited for the prosecutor's office to review the information it had been provided. Around 11:00 a.m. on November 25, 2013, Hall received an e-mail from defendant asking, `Does no reply indicate no interest in a civil and reasonable relationship moving forward?’ Below this question defendant inserted the address of the Wisconsin Department of Safety and Professional Services, and to the e-mail he attached a file entitled `Carmen LaBute RN License.PNG.’ Later that afternoon, defendant sent Hall another e-mail in which he stated that Hall had `ignored every one of my simple suggestions for “good will,”’ provided three specific examples of requests that Hall and LaBute had not fulfilled, and stated in relevant part:

`I have already given GOOD WILL. I've given your client $10,000 by not taking the Spousal Support I rightfully have coming for the past 10 months. I've also protected her employment by not reporting the many, many cases of her violating patient privacy. . . .'
`I will no longer protect her from her privacy violations at the end of business tomorrow.'

Hall interpreted this e-mail as an ultimatum and a real threat to send out the letters. He contacted LaPlant, who obtained and executed a search warrant for defendant's cell phone and computer. LaPlant's investigation confirmed that the e-mails that Hall had received came from defendant's computer. Defendant was arrested, and eventually charged with extortion, using a computer to commit a crime, and aggravated stalking. A jury acquitted defendant of aggravated stalking, but convicted him of extortion and using a computer to commit a crime.
People v. Sedenquist, supra (emphasis in the original).
The Court of Appeals began its analysis of Sedenquist’s arguments by noting that he
first argues that the evidence was insufficient to convict him of extortion and of using a computer to commit a crime. We disagree. We review challenges to the sufficiency of evidence de novo and in a light most favorable to the prosecution to determine `whether a rational trier of fact could have found that the essential elements of the crime were proved beyond a reasonable doubt.' People v. Ericksen, 288 Mich.App 192, 793 NW2d 120 (2010). `Conflicts in the evidence must be resolved in favor of the prosecution.’ People v. Bennett, 290 Mich.App 465, 472; 802 NW2d 627 (2010) (quotation marks and citation omitted). In addition, `this Court must defer to the fact-finder's role in determining the weight of the evidence and the credibility of the witnesses.’ Id.

Regarding the extortion charge, defendant claims that the prosecutor did not establish that defendant acted with the malice that is required by [Michigan Compiled Laws] 750.213. Defendant insists that his discussion of LaBute's alleged HIPAA violations was a negotiation tactic aimed at securing relief from allegations that he violated personal protection orders and at resolving various issues relative to the JOD.
People v. Sedenquist, supra.
The court goes on to explain that
[o]ur Supreme Court recently interpreted MCL 750.213 in People v. Harris, 495 Mich.120; 845 NW2d 477 (2014). A defendant violates the statute when he or she
`(1) either orally or by a written or printed communication, maliciously threatens (2) to accuse another of any crime or offense, or to injure the person or property or mother, father, spouse or child of another (3) with the intent to extort money or any pecuniary advantage whatever, or with the intent to compel the person threatened to do or refrain from doing any act against his or her will.’
[People v. Harris, supra.]

According to the Court, `the Legislature's inclusion of a malice requirement provides law enforcement, judges, and juries with an explicit standard for applying [Michigan Compiled Laws] 750.213.’ [People v. Harris, supra.] Observing that the Legislature did not intend to punish everyone who makes a minor threat, but rather only those `who “maliciously’” threaten others,’ . . ., the Court defined `malice’ as: `1. The intent, without justification or excuse, to commit a wrongful act. 2. Reckless disregard of the law or of a person's legal rights. 3. Ill will; wickedness of heart. This sense is most typical in nonlegal contexts.’ Id. at 136. Therefore, concluded the Court, `only those threats made with the intent to commit a wrongful act without justification or excuse, or made in reckless disregard of the law or of a person's legal rights, rise to the level necessary to support an extortion conviction.’ Id.
People v. Sedenquist, supra (emphasis in the original)
The Court of Appeals then found that,
[v]iewed in the light most favorable to the prosecution, and resolving conflicts in the evidence in favor of the prosecution, the evidence was sufficient to allow a rational trier of fact to conclude beyond a reasonable doubt that defendant acted with the malice required by [Michigan Compiled Laws] 750.213. It is beyond dispute that defendant threatened via e-mails to accuse LaBute of HIPAA violations if she did not accede to his requests. The purpose of defendant's threatening e-mails was to obtain pecuniary advantage in the form of $1,000 in monthly child support and a waiver of LaBute's lawful claim to his retirement account, and to force her to file a petition with the court that would result in defendant's joint custody of their son.

The threats were clearly designed to force LaBute to abandon legal rights granted her by the JOD. People v. Harris, supra. Thus, a reasonable juror could find that defendant acted with the requisite malice and violated [Michigan Compiled Laws] 750.213 when, in reckless disregard of LaBute's legal rights, he sent e-mails threatening to accuse her of HIPPA violations if she did not provide him with the pecuniary benefits demanded and relinquish sole custody of their son.
People v. Sedenquist, supra.
In a footnote following the reference to “reckless disregard” in the above-quoted paragraph, the court explained that
`[d]isregard’ is `the action of ignoring or treating without proper respect or consideration.’ Black's Law Dictionary (10th ed). `Reckless disregard’ is `conscious indifference to the consequences of an act.’ Black's Law Dictionary (10th ed). Defendant could be said to have been consciously indifferent to the effect his course of action would have on LaBute's legal rights under the judgment of divorce.
People v. Sedenquist, supra.
The Court of Appeals then took up Sedenquist’s second argument, i.e., that the
evidence was not sufficient to support the conviction of using a computer to commit the crime of extortion because, according to Hall and LaPlant, all of the elements of the charged crime were present after defendant's November 20, 2013 telephone call to Hall, which was before the first e-mail was sent. Defendant maintains that the e-mails were `subsequent acts’ under MRE 404b that were admitted to prove that the crime had occurred on November 20, 2013.
People v. Sedenquist, supra.
The court began its analysis of the issue by explaining that Michigan Compiled Laws § 752.796 provides as follows:
 (1) A person shall not use a computer program, computer, computer system, or computer network to commit, attempt to commit, conspire to commit, or solicit another person to commit a crime.
(2) This section does not prohibit a person from being charged with, convicted of, or punished for any other violation of law committed by that person while violating or attempting to violate this section, including the underlying offense.
(3) This section applies regardless of whether the person is convicted of committing, attempting to commit, conspiring to commit, or soliciting another person to commit the underlying offense.
The court went on to explain that
[d]efendant presumes that the November 20, 2013 threat is the sole basis for the charge of extortion because police devised the scheme to arrest defendant on November 21, 2013, which was before any e-mails had been sent. However, the felony information specifying the charges against defendant states an offense date of `on or around November 20–26, 2013.’

The record shows that during this time frame defendant engaged in a scheme of extortion wherein he threatened multiple times to report LaBute for HIPAA violations if she did not accede to certain specific requests, and that he used a computer to make some of those threats. Thus, the evidence adduced at trial was sufficient for a reasonable trier of fact to conclude that plaintiff had proved beyond a reasonable doubt that defendant used a computer to commit the crime of extortion. People v. Ericksen, supra.  
People v. Sedenquist, supra.
For these and other reasons, the Court of Appeals affirmed Sedenquist’s convictions. People v. Sedenquist, supra.  You can, if you are interested, read more about the case in the news stories you can find here and here.

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