United States v. Sullivan , 40 F. App'x 740 ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4330
JOHN MICHAEL SULLIVAN,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Richard L. Voorhees, District Judge.
(CR-99-122-V)
Argued: January 25, 2002
Decided: February 28, 2002
Before NIEMEYER, LUTTIG, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: Richard Andrew Culler, CULLER & CULLER, P.A.,
Charlotte, North Carolina, for Appellant. B. Frederic Williams, Jr.,
Assistant United States Attorney, Charlotte, North Carolina, for
Appellee. ON BRIEF: Robert J. Conrad, Jr., United States Attorney,
Charlotte, North Carolina, for Appellee.
2 UNITED STATES v. SULLIVAN
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
John M. Sullivan, a computer programmer, upon getting upset with
his employer, Lance, Inc., inserted a computer code (a "logic bomb")
into the software he prepared for Lance. The code was designed to
disable a communication function in Lance’s hand-held computers.
Sullivan then quit without telling anyone about the bomb. The bomb
went off about four months later, disabling 824 hand-held computers
used by Lance’s sales representatives to communicate with the head-
quarters. Shortly thereafter, when confronted by the FBI, Sullivan
confessed to planting the bomb. Sullivan was convicted for intention-
ally causing damage to a protected computer in violation of 18 U.S.C.
§ 1030(a)(5)(A).1 He now appeals the admission of evidence seized
from his home and the denial of his motion for judgment of acquittal.
I.
Prior to Sullivan’s trial, the government filed a notice pursuant to
Federal Rule of Evidence 404(b), informing Sullivan that it intended
to present certain evidence seized from Sullivan’s home and from his
home computer. That evidence included three versions of a web page
(entitled "Dr. Crime") found on Sullivan’s home computer, each of
which Sullivan created in the period between his last day at Lance
(June 1998) and his confession (October 1998) to creating the bomb;
a plaque engraved with words "Dr. Crime’s Terminal of Doom,"
which Sullivan referenced in his web page and which he placed above
1
18 U.S.C. § 1030(a)(5)(A) provides that:
Whoever knowingly causes the transmission of a program, infor-
mation, code, or command, and as result of such conduct, inten-
tionally causes damage without authorization, to a protected
computer; shall be punished as provided in subsection (c) of this
section.
UNITED STATES v. SULLIVAN 3
the computer containing the "Dr. Crime" web page and a copy of the
logic bomb; and an e-mail from a friend of Sullivan, the content of
which indicated that Sullivan published the "Dr. Crime" web page on
the internet.
Sullivan starts out his "Dr. Crime" web page by explaining his fas-
cination with computers and goes on to state:
More than once I was accused (falsely?) of perpetuating acts
of computer crime against various systems and agencies.
But regardless if I did or didn’t, I never got caught. . . . Of
course, there was ALWAYS the chance I MAY have done
the dirty deed — but I’d never admit it!
J.A. 41-42. Sullivan then describes the plaque and notes that it hangs
in his office. He then observes that "although I have ‘settled in’ to a
real job, Dr. Crime still lives . . . quietly, anonymously, and discreet."
On the web page, Sullivan also discusses his "real job" experience at
Lance and why he quit when new management arrived:
I had a decent office, a growing staff, and stock options.
Things started out well, but about a year into the job, there
was a MAJOR management change. It seemed the new
bosses had different ideas as to what should be done. After
many months of butting heads, it was obvious that the new
regime had no use for my talents. They had caused a dozen
good people — the real working and knowledgeable staff —
to leave, all because of the need to micromanage projects.
There just wasn’t enough room in the organization for me,
them, and their egos, and eventually, I bid them fond fare-
well.
The last statement on the page is "No regrets, no fear."
The district court admitted the web page, the plaque, and the e-mail
into evidence, concluding that "[this evidence] gives relevance to
[Sullivan’s] intent at the time of the crime." J.A. 65. The district court
gave limiting instructions when that evidence was introduced to the
jury, warning the jury not to consider the admitted evidence in decid-
4 UNITED STATES v. SULLIVAN
ing whether Sullivan engaged in "the physical acts charged in the
indictment," but only "in deciding whether, in doing the physical acts
charged, he acted willfully, knowingly, intentionally, and unlaw-
fully." J.A. 109-112.
Federal Rule of Evidence 404(b) allows evidence of "other crimes,
wrongs, or acts . . . as proof of motive, opportunity, intent, prepara-
tion, plan, knowledge, identity, or absence of mistake or accident." In
United States v. Queen, 132 F.3d 991 (4th Cir. 1997), we articulated
the following test for admission of prior acts under that rule:
(1) The evidence must be relevant to an issue, such as an
element of an offense, and must not be offered to establish
the general character of the defendant. . . .
(2) The act must be necessary in the sense that it is proba-
tive of an essential claim or an element of the offense.
(3) The evidence must be reliable. And,
(4) [T]he evidence’s probative value must not be substan-
tially outweighed by confusion or unfair prejudice in the
sense that it tends to subordinate reason to emotion in the
fact-finding process.
Id. at 997.
We find unpersuasive Sullivan’s arguments that the evidence fails
each of these requirements. As to the first and the second, Sullivan’s
"Dr. Crime’s Terminal of Doom" plaque and Sullivan’s statements on
the "Dr. Crime" web page were both relevant to establishing an ele-
ment of the offense (the intent to cause damage to Lance through the
transmission of the code) and "necessary in the sense that [they were]
probative of [that] element." Id. Because Sullivan admitted that he
had planted the code, but maintained that he did so only as a benign
test and did not intend to cause any problems to Lance, see, e.g., J.A.
483-84, Sullivan’s state of mind at the time of the offense constituted
the only real issue at trial. The plaque and his statements on the web
page about his "dirty deed[s]" of invading computer systems and
UNITED STATES v. SULLIVAN 5
about his hostility toward Lance, are directly relevant to whether he
planted the bomb with unlawful intent or, as he contends, innocently.
That these statements were made during the period in which Sullivan
could have notified Lance about the bomb and thereby prevented
most of the harm makes them all the more probative of the critical
element of his intent to cause damage.
The evidence also satisfies the requirement of reliability. Sullivan
admitted that he created the web page and that he owned the plaque,
the contents of which were probative of his intent to damage Lance.
Sullivan’s insistence that neither the web page nor the plaque state
outright that he committed other computer crimes has nothing to do
with the reliability of the admitted statements for the purpose of
showing Sullivan’s intent to commit this particular crime.
Finally, Sullivan offers no credible argument that the admitted evi-
dence evoked "emotion in place of reason as a decisionmaking mech-
anism" and was thus unduly prejudicial. Queen, 132 F.3d at 998. In
any event, the limiting instructions avoided any undue prejudice that
might otherwise have resulted.
Sullivan’s reliance on United States v. Hernandez, 975 F.2d 1035(4th Cir. 1992), is misplaced. In that case, intent was not contested,
rendering irrelevant the evidence that was admitted under Rule
404(b).
Accordingly, we conclude that the district court did not abuse its
discretion in admitting the evidence pursuant to Rule 404(b).
II.
Sullivan also challenges the denial of his motion for judgment of
acquittal under Federal Rule of Criminal Procedure 29, claiming that
there was insufficient evidence to support his conviction. He argues,
first, that the government did not prove that he "knowingly cause[d]
the transmission," 18 U.S.C. § 1030(a)(5)(A), of his logic bomb to the
hand-held computers. This claim is meritless. Sullivan admitted that
he made certain changes to the program and inserted the code into
Lance’s computer system with full knowledge that if no one detected
6 UNITED STATES v. SULLIVAN
the code, it would make its way to the hand-held computers. J.A. 541-
45; J.A. 318. That is, he admitted to "knowing[ ] . . . transmission"
of the code.
Second, Sullivan asserts that the government did not establish that
Lance sustained damage "during any 1-year period," 18 U.S.C.
§ 1030(e)(8)(A) (defining damage as "any impairment . . . causing
loss aggregating at least $5,000 in value during any 1-year period").
The parties stipulated that "Lance spent $17,370 for memory cards
. . . to distribute to sales representatives to delete the code placed . . .
by the defendant." J.A. 386. Sullivan points out that this stipulation
did not contain any date reference and approximately sixteen months
elapsed between the day the bomb went off and the trial. Thus, Sulli-
van claims, it is not clear that the money for new memory cards was
spent within one year of the bomb going off. However, Sullivan’s
replacement testified that Lance’s sale representatives got their new
memory cards shortly after the bomb went off, and that all the prob-
lems relating to the bomb were fixed within a few days. See J.A. 244-
253, 269. Indeed, Lance had no choice but to replace memory cards
expeditiously, given that the problem Sullivan caused made commu-
nications between sales representatives and headquarters impossible.
See J.A. 249. This uncontested testimony provides sufficient evidence
for the jury to conclude, beyond a reasonable doubt, that Lance
replaced the memory cards within a few days after the discovery of
the defect in the software.
The district court did not err in denying Sullivan’s Rule 29 motion.2
CONCLUSION
For the reasons stated herein, Sullivan’s conviction and sentence
are affirmed.
AFFIRMED
2
Sullivan’s arguments that the statute cannot be enforced absent "ac-
tual destruction of a computer system" and that the statute requires a spe-
cific intent instruction have no basis in the text of the statute. We also
reject Sullivan’s equally meritless claim as to the calculation of loss for
the purpose of sentencing.