US v. O’Brein, No. 04-2447, is an interesting computer hacking case under 18 U.S.C. § 1030(a)(5)(A)(i), but it all comes down to a question by the prosecutor:
The prosecutor asks: [Y]ou never told the U.S. Attorney's Office, isn't that correct, that your brother was the person responsible for this activity?
...
The court summarizes:
The heart of the evidentiary objection is that the prosecutor's questioning of O'Brien about this failure to mention his brother, and the prosecutor's later statements in closing argument to the jury about this failure, were barred by Doyle v. Ohio, 426 U.S. 610 (1976).
But the court concludes: However, in our view the Doyle objection to the question was not properly preserved (no Doyle objection at all was made to the closing argument). On plain error review, it concludes if there was error, it only added very little to the prosecutor’s case, so it wasn’t plain.
Keep reading.
As to the sentencing arguments, the enhancement for obstruction is affirmed under U.S.S.G. § 3C1.1. “The enhancement requires that the district judge, not the jury, find that the false testimony was willful and material.” And Booker doesn’t change things.
Enhancements for using special skills (U.S.S.G. § 3B1.3) for hacking are affirmed over the objection that computer hacking, itself is a special skill, and therefore an element of the crime. The court concludes:
We think it is enough to say here that the use of special computer skills is certainly not an element of the statutory offense and that O'Brien was plausibly found to have had such skills beyond those possessed by an ordinary computer user.
Comments