1. US v. Nosal, No. 10-10038 (4-28-11)(Trott with O’Scannlain; dissent by Campbell, Senior DJ, Utah). Defendants got information from their employer’s computer allegedly for the purpose of defrauding the employer and setting up a competing business. This violates the Computer Fraud and Abuse Act, 18 USC 1030. The statute states that someone who goes beyond set purposes of computer access is considered to have exceeded authorized access and thus violated the statute. The 9th, in LVRC Holdings LLC v. Bekka, 581 F.3d 1127 (9th Cir. 2009), seemed to interpret the statute as making irrelevant policy usage if the defendant had any access at all. If the defendant had any access, overstepping by itself could not be criminal. The district court in adopting this reading dismissed counts. The gov’t appealed, and argues, successfully, that the overstepping is relevant, it violates the statute’s clear language, and that it is a factor for consideration of specific intent. The 9th joins other circuits in using the employer’s access policies and computer use policies to show possible intent. If such policies could not be used, what use would they be? The 9th states that if one steps over the use line, one could arguably have violated the statute. Dissenting, Judge Campbell thinks the statute is void for vagueness, and that statutory construction should limit it to those who are barred from any usage, rather than possible policy violation. The statute was written in the new age of computer usage, and the majority’s interpretation is unrealistic as to how computer usage has developed at work.
2. US v. Whitlock, No. 10-30124 (4-28-11)(Fisher with Graber and M. Smith). In a SR case, the 9th holds that post-revocation sentencing recommendations made by the probation office must be disclosed unless the local rules reads otherwise or the district court so orders. However, it is not a due process or equal protection violation if the recommendation is
not disclosed by local rule or the court orders it not disclosed so long as the factual determinations and underpinnings are disclosed. Essentially, it would be nice if the recommendations were disclosed, but it is not a constitutional violation if they are not provided there is a local rule or the court orders, and the facts in the report are let out. Here they were, and so the SR revocation sentence is affirmed.
3.Kemp v. Ryan, No. 08-99030 (Callahan with Rymer and Ikuta). Thew 9th affirms denial of capital habeas. The petitioner argued that his statements were a result of constitutional violations; that there was insufficient evidence to show the requisite mental state necessary for imposition of the death penalty, and that his constitutional rights were
violated by the admission of other bad act evidence, by late disclosure by the state, and by the failure to voir dire on the issue. Under AEDPA’s deferential standards, the 9th holds that the Arizona Supreme Court’s opinion affirming his conviction and sentence was not an unreasonable application of federal law nor an unreasonable determination of the facts.
