US v. Horvath, No. 06-30447 (7-10-07)

Can lying in a PSR result in a false statement charge under 18 USC 1001? The 9th says "no." This case involved a defendant, being sentenced on a prohibited possessor charge, telling the probation officer writing the PSR that he had served in the Marine Corps and received an honorable discharge. The PSR included this information without verification, and the court questioned defendant on it. The court believed it to be true, and used it as one of the mitigators to place the defendant on probation. Four years later, the government determined that the defendant had not served in the Marines, and subsequently indicted him for a false statement under 1001(a)(2). The false statement statute, however, contains an exception for statements made by a party in a judicial proceeding, submitted to a judge, and made in the proceeding. The case here turns on the second, and whether a probation officer is a "judge." The 9th (Graber joined by Pregerson) hold that the probation officer, when preparing a PSR, is acting at the direction of the judge. The PSR is required by Fed. R. Crim. P. 32, and the PSR requires factual information to be gathered by the probation officer. The information included in the was factual, and was to be given to the court, and the probation officer " exercised no discretion." The 9th stresses that the 1001 exception only applies if the law requires the probation officer to include the statement and submit the PSR to the court. The 9th looks to McNeil, the case concerning financial affidavits. Dissenting, Judge Rymer acknowledges that this is a "tough case," but would read the statute literally, that statements made to the probation officer are not made to the judge.

US v. Shea, No. 06-10450 (7-11-07)
Defendant was convicted of intentionally causing damage to a protected computer in violation of 18 USC 1030(a)(5)(A)(i). The defendant was a disgruntled former employee (performance issues and a denial of a "work at home" request). The business was a financial company. After the defendant was fired, a computer program "time bomb" went off that took the accounts and inserted random numbers in place of actual figures. The company restored most data but at great cost, and the FBI went investigating, ending up at the doorstep of the defendant. His name was one of the user names on the code. He gave statements about being stressed and having medical problems. Still, a 7-count indictment was handed down, later consolidated to one count. At trial, the government presented circumstantial evidence that the password and user name came from defendant's computer, he had access, and opportunity. On appeal, alleging insufficient evidence, the 9th (Hall joined by O'Scannlain and Ikuta) held that the jury could make the inference. The 9th also found no variance between the date code was compiled (Jan. 7th) and the trigger date of Jan. 29th. The latter date was the only date listed in the computer, but the defendant's "fingerprints" were not to be found. The 9th reasoned that the date was not important as the act was damaging the computer by the code, which could run at a set time. The defendant was not prejudiced because he knew the various counts and theories. The 9th also brushed aside the defendant's request for new counsel mid-trial as untimely and for reasons that related to tactical decisions within counsel's discretion.