Appeal from the United States District Court for the District of Guam. D.C. No. CR-94-00017-JSU. John S. Unpingco, District Judge, Presiding.
Before: Procter Hug, Jr., Chief Judge, David R. Thompson and Diarmuid F. O'Scannlain, Circuit Judges. Opinion by Chief Judge Hug.
Bernadette H. Sablan appeals her conviction for computer fraud under 18 U.S.C. § 1030(a)(5) 1988, amended by Pub. L. No. 103-322, § 290001(b), 108 Stat. 2097-2099 (Sept. 13, 1994), following a conditional guilty plea. Sablan argues that the district court wrongly interpreted the elements of the crime and, alternatively, that the statute is unconstitutional. Sablan also challenges the district court's calculation of the loss attributable to her conduct, the court's decision not to depart downward, and the restitution order. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3576. We affirm Sablan's conviction and her sentence. However, we reverse and remand for a recalculation of the restitution award.
In the early hours of August 15, 1992, Sablan, a former employee of the Bank of Hawaii's Agana, Guam branch, left a bar where she had been drinking with a friend. Sablan had recently been fired from the bank for circumventing security procedures in retrieving files. That morning, Sablan left the bar and entered the closed bank through an unlocked loading dock door. She went to her former work site (using a key she had kept) and used an old password to log into the bank's mainframe. Sablan contends that she then called up several computer files and logged off. The Government asserts that Sablan changed several of the files and deleted others. Under either version, Sablan's conduct severely damaged several bank files.
Sablan was charged with computer fraud in violation of 18 U.S.C. § 1030(a)(5) (the "computer fraud statute"). In a pretrial motion to dismiss, Sablan attacked the statute for its failure to require a mens rea for each of the essential elements of the offense. In the alternative, Sablan requested a jury instruction that required the Government to prove intent as to all elements of the crime. In particular, Sablan wanted the jury to be instructed that the Government needed to prove that she had the intent to damage bank files. The district court denied the motion and ruled that, as used in the computer fraud statute, the word "intentionally" applied only to the access element of the crime. Sablan then entered into a conditional plea agreement that preserved her right to appellate review of the issue raised in her motion.
The district court calculated Sablan's sentence under Sentencing Guideline § 2F1.1(a), and enhanced her sentence due to the amount of damage caused by Sablan's conduct. The calculation included the cost of numerous hours of computer programming to restore the damaged files. Sablan asserts that the district court improperly calculated the amount of damage due to her actions and that the improper calculation led to (1) an improperly enhanced sentence, (2) a refusal to depart downward, and (3) an improper restitution order.
THE COMPUTER FRAUD STATUTE
Sablan contends on appeal that the computer fraud statute must have a mens rea requirement for all elements of the crime. She asserts that the indictment was defective because it did not allege the appropriate mens rea required by the statute. In the alternative, Sablan asserts that a jury instruction was required to inform the jurors that the state had to prove intent for every element of the crime.
Sablan was convicted under the version of the computer fraud statute in effect from 1986 to 1994. That statute stated:
(5) intentionally accesses a Federal interest computer without authorization, and by means of one or more instances of such conduct alters, damages, or destroys information in any ...