United States v. Kevin Ledgard

FILED
NOT FOR PUBLICATION JUL 15 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-50600
Plaintiff - Appellee, D.C. No. 2:08-cr-00982-DDP-1
v.
MEMORANDUM*
KEVIN BRIAN LEDGARD,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Dean D. Pregerson, District Judge, Presiding
Argued and Submitted July 8, 2014
Pasadena, California
Before: SILVERMAN, TALLMAN, and RAWLINSON, Circuit Judges.
Following a break-up with a former coworker (“FG”), Kevin Brian Ledgard
hacked into FG’s bank, email, and Amazon accounts; made purchases and issued
checks in FG’s name; circulated sexually explicit photos of FG to her family and
friends; and made good on threats that his revenge would continue to “get worse.”
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Ledgard now appeals his convictions following a bench trial for three counts of
unauthorized access to the computer of a financial institution in violation of 18
U.S.C. §§ 1030(a)(2)(A), (c)(2)(B)(ii) (Counts One through Three); two counts of
unauthorized access to a protected computer in violation of 18 U.S.C.
§§ 1030(a)(2)(C), (c)(2)(B)(ii) (Counts Four and Five); and three counts of
aggravated identity theft in violation of 18 U.S.C. § 1028A(a)(1) (Counts Nine
through Eleven). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
The evidence was sufficient to establish that Ledgard’s unauthorized access
of FG’s Amazon account “involved an interstate or foreign communication.” See
18 U.S.C. § 1030(a)(2)(C) (2007). A rational trier of fact could have found beyond
a reasonable doubt that the “interstate communication” element was met when
Ledgard accessed FG’s Amazon account through the Internet, ordered $7,000 of
merchandise, and authorized Amazon to charge FG’s credit card and ship the items
to FG’s home address. See United States v. Sutcliffe, 505 F.3d 944, 952–53 (9th
Cir. 2007) (recognizing that “use of the internet is intimately related to interstate
commerce,” and that “[t]he Internet is an international network of interconnected
computers”).
A rational trier of fact could have found beyond a reasonable doubt that
Ledgard’s unauthorized access of FG’s Hotmail account “involved an interstate or
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foreign communication.” See 18 U.S.C. § 1030(a)(2)(C) (2007). Ledgard
accessed FG’s Hotmail account without authorization, obtained FG’s father’s email
address, and sent a series of emails to FG’s father in Japan in furtherance of his
scheme.
The evidence was also sufficient to establish that Ledgard’s unauthorized
computer access was committed in furtherance of the California state tort of
intentional infliction of emotional distress. See 18 U.S.C. § 1030(c)(2)(B)(ii). The
government provided sufficient evidence as to each element of the underlying tort.
Testimony from FG, her mother, her friend, and her former boss established that
FG suffered severe emotional distress and that Ledgard’s conduct was a substantial
factor in causing FG’s emotional distress. A rational fact-finder could conclude
that each count of computer intrusion was committed “in furtherance of”
intentional infliction of emotional distress. Id.
Applying 18 U.S.C. § 1030(c)(2)(B)(ii) to incorporate the California state
tort of intentional infliction of emotional distress does not make the resulting
statute unconstitutionally vague. The terms “outrageous conduct” and “severe
emotional distress” are well-defined in California case law and in California’s
model jury instructions. See Hailey v. Cal. Physicians’ Serv., 69 Cal. Rptr. 3d 789,
806 (Cal. Ct. App. 2007) (defining “outrageous conduct”); Fletcher v. Western
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Nat’l Life Ins. Co., 89 Cal. Rptr. 78, 90 (Cal. Ct. App. 1970) (defining “severe
emotional distress”); California Civil Jury Instruction, CACI §§ 1602, 1604
(2013). Moreover, because Ledgard’s actions “clearly come within the statute,” he
cannot prevail on a void for vagueness challenge. United States v. Kim, 449 F.3d
933, 942 (9th Cir. 2006).
Sufficient evidence demonstrated that Ledgard’s unauthorized computer
access was committed in furtherance of the California state crime of false
personation. See 18 U.S.C. § 1030(c)(2)(B)(ii). As soon as Ledgard accessed
FG’s bank account and issued checks in FG’s name, FG “might” have become
liable to pay the full amount of the checks. See Cal. Penal Code § 529. Likewise,
as soon as Ledgard accessed FG’s Amazon account and purchased goods with
FG’s credit card, FG might have become liable to pay the credit card charge. Id.
Counts Two through Five serve as predicate felony violations for Ledgard’s
aggravated identity theft convictions (Counts Nine through Eleven). See 18 U.S.C.
§ 1028A(a)(1) (requiring that the identity theft be committed “during and in
relation to any felony violation” enumerated in the statute). Because the evidence
is sufficient to support Counts Two through Five, Ledgard’s corresponding
convictions for aggravated identity theft (Counts Nine through Eleven) also stand.
AFFIRMED.
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