USA v. Wang

OPPOSITION to Defendant's Motion to Dismiss Counts Two Through Six [45]

N.D. Cal.November 8, 2013

U.S. OPP. TO DEFT’S MTN. TO DISMISS COUNTS TWO THROUGH SIX CR 12-0581 EJD 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MELINDA HAAG (CABN 132612) United States Attorney J. DOUGLAS WILSON (DCBN 412811) Chief, Criminal Division HARTLEY M. K. WEST (CABN 191609) Assistant United States Attorney 450 Golden Gate Avenue, Box 36055 San Francisco, California 94102-3495 Telephone: (415) 436-6747 FAX: (415) 436-7234 Hartley.West@usdoj.gov Attorneys for United States of America UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION UNITED STATES OF AMERICA, Plaintiff, vs. JERRY WANG, Defendant. ) ) ) ) ) ) ) ) ) ) CR 12-0581 EJD UNITED STATES’ OPPOSITION TO DEFENDANT’S MOTION TO DISMISS COUNTS TWO THROUGH SIX Date: December 13, 2013 Time: 1:30 p.m. I. INTRODUCTION Defendant Jerry Wang moves to dismiss Counts Two through Six of the Indictment on the basis that the allegations do not state an offense. Specifically, he contends that he delegated his authority to sign visa-related documents and therefore cannot be guilty of aiding and abetting visa fraud, as charged in Counts Two through Five. He further asserts that he delegated his authority to access a nonpublic government computer and therefore cannot be guilty of aiding and abetting unauthorized access, as charged in Count Six. Both arguments fail. The allegations, which the Court must accept as true, fairly state the offenses of visa fraud and unauthorized access. Defendant’s motion should thus be denied. Case5:12-cr-00581-EJD Document60 Filed11/08/13 Page1 of 6 U.S. OPP. TO DEFT’S MTN. TO DISMISS COUNTS TWO THROUGH SIX CR 12-0581 EJD 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 II. SUMMARY OF RELEVANT FACTS On July 24, 2012, a grand jury returned a 14-count Indictment against defendant based on actions he took in connection with Herguan University, where he was and is CEO, located in Sunnyvale, California. The Indictment charges defendant with conspiracy to commit visa fraud, in violation of 18 U.S.C. § 371 (Count 1); aiding and abetting visa fraud, in violation of 18 U.S.C. §§ 1546(a) and 2 (Counts 2-5); aiding and abetting unauthorized access of a government computer, in violation of 18 U.S.C. §§ 1030(a)(3) and 2 (Count 6); use of false documents, in violation of 18 U.S.C. § 1001(a)(3) (Counts 7-13); and aggravated identity theft, in violation of 18 U.S.C. § 1028A (Counts 14 and 15). Starting in July 2007, the Indictment alleges, defendant caused Herguan to submit a petition to admit foreign students and supporting documents to the U.S. Department of Homeland Security (DHS), Student and Visitor Exchange Program (SEVP), and that these submissions contained false representations regarding Herguan’s students as well as false transfer letters. Indictment (Ind.) ¶ 11. After SEVP approved Herguan’s petition, the Indictment explains, defendant – as the school’s Designated School Official (DSO) – was issued a login ID and password enabling him to access “SEVIS,” “a nonpublic computer system . . . which is used by the United States government and operated through SEVP for the purpose of collecting nonimmigrant student information from approved schools and monitoring such aliens= status.” Ind. ¶ 7. From SEVIS, “a Certificate of Eligibility for Nonimmigrant (AF-1@) Student Status, also known as a Form I-20,” is issued and provided to the alien student. Ind. ¶ 8. The I-20 “certifies that the student has been accepted for enrollment in a full course of study, and is signed by a DSO.” Id. In the “Manner and Means” section of Count One, Conspiracy to Commit Visa Fraud, the Indictment alleges that defendant “caused a Herguan employee to access [his] SEVIS account without SEVP authorization to enter data and create I-20s.” Ind. ¶ 12. The “Overt Acts” section of the conspiracy count alleges: “In or about May 2009, WANG instructed a Herguan employee to use WANG=s identification code and password to access SEVIS.” Ind. ¶ 15(f). The Indictment further alleges that, “[a]t WANG=s instruction, the Herguan employee presented the printed I-20s to Y.W. and S.T. to forge WANG=s signature when WANG was unavailable. At WANG=s instruction, the forged I- Case5:12-cr-00581-EJD Document60 Filed11/08/13 Page2 of 6 U.S. OPP. TO DEFT’S MTN. TO DISMISS COUNTS TWO THROUGH SIX CR 12-0581 EJD 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 20s were disseminated to Herguan students.” Id. The Indictment identifies Y.W. as defendant’s father and Herguan’s President, and S.T. as defendant’s mother and Herguan’s CFO. Ind. ¶¶ 2-3. Rounding out the charges, the Indictment alleges that defendant “made false representations and submitted false documents to DHS agents and SEVP officials, who contacted Herguan to ensure compliance with applicable regulations.” Ind. ¶ 14. Some of the falsified student records that defendant submitted contained personal identifying information – including names, social security numbers, and dates of birth – of true individuals without their authorization. Ind. ¶ 15(e). As to the visa fraud charges, Counts Two through Five allege that, on specified dates and for specified individuals, defendant: did knowingly cause another to forge and falsely make a document prescribed by statute and regulation for entry into and as evidence of an authorized stay in the United States, specifically a Form I-20 for each of the following individuals, and did knowingly cause another to use, attempt to use, possess, obtain, and receive such document, knowing it to be forged, falsely made, and procured by means of a false claim and statement, and to have been otherwise procured by fraud and unlawfully obtained. Ind. ¶ 17. As to Count Six, charging unauthorized access, the Indictment alleges that defendant: did knowingly and intentionally cause another to access, without authorization, a nonpublic computer of a department and agency of the United States, specifically DHS=s SEVIS, which is used by and for the Government of the United States and such conduct affects that use by and for the Government of the United States. Ind. ¶ 19. III. ARGUMENT A district court evaluating a motion to dismiss for failure to state an offense “is bound by the four corners of the indictment.” United States v. Boren, 278 F.3d 911, 914 (9th Cir. 2002). “An indictment which tracks the words of the statute charging the offense is sufficient so long as the words unambiguously set forth all elements necessary to constitute the offense.” United States v. Fitzgerald, 882 F.2d 397, 399 (9th Cir. 1989). The “indictment should be read in its entirety, construed according to common sense, and interpreted to include facts which are necessarily implied.” United States v. Lazarenko, 564 F.3d 1026, 1033 (9th Cir. 2009) (internal quotation marks omitted). “[T]he court must accept the truth of the allegations in the indictment in analyzing whether a cognizable offense has been Case5:12-cr-00581-EJD Document60 Filed11/08/13 Page3 of 6 U.S. OPP. TO DEFT’S MTN. TO DISMISS COUNTS TWO THROUGH SIX CR 12-0581 EJD 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 charged.” Boren, 278 F.3d at 914. For purposes of a motion to dismiss, the proof at trial is irrelevant. See id.; United States v. Jensen, 93 F.3d 667, 669 (9th Cir. 1996). A. Counts Two Through Five State the Offense of Aiding and Abetting Visa Fraud Counts Two through Five track the language of the visa fraud statute, 18 U.S.C. § 1546(a), which accurately sets forth the elements of this offense. See Ninth Cir. Model Crim. Jury Instr. (2010) Nos. 8.132 and 8.133. On its face, this is sufficient. Fitzgerald, 882 F.2d at 399. Moreover, the allegations in the “Manner and Means” section of the conspiracy charge asserts that defendant instructed a Herguan employee to get forged signatures on visa-related documents, the I-20 forms, and to have these disseminated to Herguan students. Ind. ¶ 12. Reading the Indictment as a whole, as the Court must, these allegations state the criminal offense of aiding and abetting visa fraud. Defendant’s argument that he delegated his authority to sign the I-20s is premature. In considering a motion to dismiss, the Court “must accept the truth of the allegations in the indictment”; the eventual proof at trial is irrelevant. Boren, 278 F.3d at 914. B. Count Six States the Offense of Aiding and Abetting Unauthorized Access Counts Six, too, tracks the statutory language, setting forth all of the elements of 18 U.S.C. § 1030(a)(3). See Ninth Cir. Model Crim. Jury Instr. (2010) No. 8.98. The factual allegations support such an offense, as well. The Indictment alleges that DSOs are issued a login ID and password enabling them to access SEVIS, which is “a nonpublic computer system” used by the United States government and operated through SEVP. It alleges that defendant, as Herguan’s DSO, “instructed a Herguan employee to use WANG=s identification code and password to access SEVIS.” Ind. ¶ 15(f). It further alleges that defendant “caused a Herguan employee to access [his] SEVIS account without SEVP authorization to enter data and create I-20s.” Ind. ¶ 12. Because these allegations must be taken as true, see Boren, 278 F.3d at 914, defendant’s arguments that he delegated his government-issued authorization to access SEVIS and that he lacked criminal intent are irrelevant. The decisions in United States v. Nosal, 676 F.3d 854 (9th Cir. 2012), and LVRC Holdings LLC v. Brekka, 581 F.3d 1127 (9th Cir. 2009), do not change this conclusion, as both involve different and inapplicable subsections of the Computer Fraud and Abuse Act (CFAA), 18 U.S.C. § 1030, as well as Case5:12-cr-00581-EJD Document60 Filed11/08/13 Page4 of 6 U.S. OPP. TO DEFT’S MTN. TO DISMISS COUNTS TWO THROUGH SIX CR 12-0581 EJD 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 materially different facts. Nosal was a former employee of an executive search firm who convinced some current employees to download source lists and contacts from a confidential database on the company computer and transfer that information to Nosal to help him start a competing business. Company policy authorized the employees to access the database, but only to work on the company’s business. Nosal, 676 F.3d at 856. The government charged Nosal under 18 U.S.C. § 1030(a)(4) with aiding and abetting the current employees in “exceed[ing their] authorized access” with fraudulent intent. Id. The Ninth Circuit held that “‘exceeds authorized access’ in the CFAA is limited to violations of restrictions on access to information, and not restrictions on use.” Id. at 864 (emphasis in original). Because the current employees were authorized to access the database, their use of the information they obtained from it, the Court concluded, did not violate § 1030(a)(4). Id. Brekka is a civil case in which an employer alleged violations of § 1030(a)(2) and (a)(4) against an employee who accessed the company computer during his employment for improper purposes. See Brekka, 581 F.3d at 1129-32. As in Nosal, the Court distinguished between access and use: “[A] person who intentionally accesses a computer without authorization. . . accesses a computer without any permission at all, while a person who exceeds authorized access . . . has permission to access the computer, but accesses information on the computer that the person is not entitled to access.” Id. Because the employer had authorized Brekka’s use of the computer, the Court held that he did not access it without authorization or exceed authorized access. Id. at 1135 and n.7. Finally, the Court observed that “[t]here is no dispute that if Brekka accessed” the website after his employment ended, he “would have accessed a protected computer ‘without authorization’ for purposes of the CFAA.” Id. at 1136. There was insufficient evidence, however, that he had done so. Id. Whereas Nosal and Brekka involved defendants who had authorization to access a government computer, but who did so for an improper purpose, in this case defendant is charged under § 1030(a)(3) with aiding and abetting access to a government computer by someone who lacks authorization altogether. Section 1030(a)(3) makes it unlawful for one intentionally, without authorization to access any nonpublic computer of a department or agency of the United States, [to] access[] such a computer of that department or agency that is exclusively for the use of the Government of the Case5:12-cr-00581-EJD Document60 Filed11/08/13 Page5 of 6 U.S. OPP. TO DEFT’S MTN. TO DISMISS COUNTS TWO THROUGH SIX CR 12-0581 EJD 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 United States or . . . is used by or for the Government of the United States and such conduct affects that use by or for the Government of the United States. 18 U.S.C. § 1030(a)(3). Defendant’s alleged conduct directly implicates restrictions on access, rather than mere use restrictions. Nosal and Brekka are therefore inapplicable. Moreover, interpreting § 1030(a)(3) according to its plain text does not, as defendant suggests, “criminalize a broad range of day-to-day activity,” improperly “delegate to prosecutors and juries the inherently legislative task of determining” what to prosecute as crimes, or “subject individuals to the risk of arbitrary or discriminatory prosecution and conviction.” Def. Mtn. at 8 (citing United States v. Kozminski, 487 U.S. 931, 949 (1981)). Rather, it fulfills Congress’s expressly articulated intent to punish people for intentionally accessing nonpublic government computers without authorization and, through 18 U.S.C. § 2, aiding and abetting such unauthorized access. Defendant is right that the government expressly authorized him to access SEVIS when it gave him – as DSO – an identification code and password. The government did not grant access to Herguan employees who were not DSOs. When defendant caused an employee to access SEVIS without government authorization, he aided and abetted the crime of unauthorized access to a government computer. The allegations underlying Count Six adequately state this offense. IV. CONCLUSION For the above-stated reasons, the Court should deny the defendant’s motion to dismiss Counts Two through Six. DATED: November 8, 2013 Respectfully submitted, MELINDA HAAG United States Attorney /s/ HARTLEY M. K. WEST Assistant United States Attorney Case5:12-cr-00581-EJD Document60 Filed11/08/13 Page6 of 6