United States v. Pok Seong Kwong

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT July 26, 2007
Charles R. Fulbruge III
Clerk
No. 06-41461
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
POK SEONG KWONG, also known as Freddy Kwong,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Texas
(4:05-CR-1-1)
Before HIGGINBOTHAM, DAVIS, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Pok Seong Kwong challenges his conviction and sentence for
aiding and abetting the sabotage of his former employer’s computer
system, and conspiring to do the same, in violation of 18 U.S.C. §§
2, 371, 1030(a)(5)(A). AFFIRMED.
I.
In 2001, Kwong was employed as the director of information
technology (IT) for American Flood Research, Inc. (AFR), a provider
of electronic flood-zone certifications. Kwong supervised two
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
other IT employees: Wei Chen, a program analyst; and An Yuan, a
systems administrator.
On 15 November 2001, Kwong, Chen, and Yuan submitted a letter
to AFR charging, inter alia, race discrimination and demanding
compensation. The next day, AFR discovered numerous computer-
system problems. Investigation revealed the problems were caused
by harmful programs installed on AFR’s computer system.
On 13 October 2005, Kwong was charged with, inter alia, aiding
and abetting Chen to “knowingly cause[] the transmission of a
program ... [to] intentionally cause[] damage ... to a protected
computer”, in violation of 18 U.S.C. §§ 2, 1030(a)(5)(A). A jury
found Kwong guilty on that, and a related conspiracy, count. He
was sentenced, inter alia, to concurrent 51-month terms of
imprisonment and $707,823 in restitution.
II.
A.
Kwong claims the evidence was insufficient to support the
verdict, contending, inter alia, the 26 October 2001 amendments to
18 U.S.C. § 1030 should not apply because the indictment,
consistent with the pre-amendment statute, charged him with
“caus[ing] loss ... to one or more individual[]”, 18 U.S.C. §
1030(e)(8) (amended 26 October 2001) (emphasis added), rather than,
pursuant to the amended statute, with “caus[ing] ... loss to 1 or
more person[]”, 18 U.S.C. § 1030(a)(5)(B)(i) (emphasis added).
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Kwong’s properly-preserved sufficiency challenge is reviewed
in the light most favorable to the verdict, inquiring only whether
a rational juror could find the offense elements established beyond
a reasonable doubt. E.g., United States v. Cuellar, 478 F.3d 282,
287 (5th Cir. 2007) (en banc). Of course, a district court’s
application of a statute is reviewed de novo. See United States v.
Phillips, 219 F.3d 404, 409 (5th Cir. 2000).
For both the substantive and conspiracy counts, the indictment
charged, and the jury was required to find, conduct occurring after
the statutory-amendment date. Accordingly, Kwong’s contention,
based on a single word from the indictment, is unavailing. See
United States v. Harms, 442 F.3d 367, 372 (5th Cir. 2006), cert.
denied, 127 S. Ct. 2875 (2007); United States v. Garcia-Abrego, 141
F.3d 142, 167 (5th Cir. 1998).
Along that line, Kwong concedes: AFR is a “corporation”; and
the Government established loss to AFR of at least $5,000.
Moreover, the evidence established, inter alia: Kwong and Chen
were alone at AFR when harmful programs were loaded onto AFR’s
system from Chen’s computer; and several harmful programs were
written in programming language in which only Kwong was proficient.
Kwong’s sufficiency challenge fails. See 18 U.S.C. §§
1030(a)(5)(A)(i), (a)(5)(B)(i), (e)(12); Int’l Airport Centers, LLC
v. Citrin, 440 F.3d 418, 419-20 (7th Cir. 2006); United States v.
Freeman, 434 F.3d 369, 376 (5th Cir. 2005).
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B.
Relatedly, Kwong maintains the indictment was constructively
amended by the jury instructions’ requiring the Government to prove
loss to one or more “persons”. “A[] ... constructive amendment of
the indictment, constituting reversible error, occurs when it
permits ... convict[ion] upon a factual basis that effectively
modifies an essential element of the offense charged or ... on a
materially different theory or set of facts than that ... charged.”
United States v. Reasor, 418 F.3d 466, 475 (5th Cir. 2005).
As discussed supra, the October 2001 amendments to § 1030
apply. Particularly in the light of the indictment’s numerous
references to AFR in the conspiracy count, there was no reversible
error. See id.; United States v. Nuñez, 180 F.3d 227, 231 (5th
Cir. 1999).
C.
Kwong also contends the conspiracy-count jury instructions, by
repeating the substantive-offense elements, rendered the counts
multiplicitous. Although multiplicity issues are reviewed de novo,
see United States v. Soape, 169 F.3d 257, 265 (5th Cir. 1999),
Kwong’s failure at trial to object to the instructions on this
basis mandates only plain-error review. See FED. R. CRIM. P. 30(d);
United States v. Dixon, 273 F.3d 636, 641-42 (5th Cir. 2001).
Because the conspiracy-count instructions articulated properly
the required elements of a conspiracy, see Freeman, 434 F.3d at
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376, Kwong fails to show plain error. See United States v. Reedy,
304 F.3d 358, 368-69 (5th Cir. 2002); United States v. Duvall, 846
F.2d 966, 976 (5th Cir. 1988).
D.
For his final contention, Kwong challenges the district
court’s loss calculation for the purposes of both his 14-level
amount-of-loss enhancement, pursuant to Sentencing Guidelines §
2B1.1(b)(1)(H), and restitution. A district court’s interpretation
and application of the Guidelines is reviewed de novo; its loss
calculation, a factual finding, only for clear error. E.g., United
States v. Jones, 475 F.3d 701, 705 (5th Cir. 2007). A restitution
award is reviewed for abuse of discretion. E.g., United States v.
Onyiego, 286 F.3d 249, 256 (5th Cir. 2002).
The loss calculation was based on testimony from an AFR vice
president establishing, inter alia, the retail value of AFR’s lost
electronic-certification orders approximated the lost net profit on
such orders. The loss calculation was not clearly erroneous. See
Jones, 475 F.3d at 705. Concomitantly, the imposed restitution was
not an abuse of discretion.
III.
For the foregoing reasons, the judgment is
AFFIRMED.
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