
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 96-1317                                    UNITED STATES,                                      Appellee,                                          v.                                RICHARD W. CZUBINSKI,                                Defendant - Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Nathaniel M. Gorton, U.S. District Judge]                                              ___________________                   [Hon. Robert B. Collings, U.S. Magistrate Judge]                                             _____________________                                 ____________________                                        Before                               Torruella, Chief Judge,                                          ___________                            Bownes, Senior Circuit Judge,                                    ____________________                              and Stahl, Circuit Judge.                                         _____________                                _____________________               Susan B. Hanmer, with whom Oliver C. Mitchell, Jr., Louis J.               _______________            _______________________  ________          Scerra,  Jr.  and Goldstein  & Manello,  P.C.  were on  brief for          ____________      ___________________________          appellant.               S. Theodore Merritt, Assistant  United States Attorney, with               ___________________          whom Donald K. Stern, United States Attorney, and Amy B. Lederer,               _______________                              ______________          Assistant United States Attorney, were on brief for appellee.                                 ____________________                                  February 21, 1997                                 ____________________                    TORRUELLA, Chief Judge.    Defendant-appellant  Richard                    TORRUELLA, Chief Judge.                               ___________          Czubinski  ("Czubinski")  appeals  his jury  conviction  on  nine          counts of wire fraud, 18 U.S.C.    1343, 1346, and four counts of          computer  fraud,  18 U.S.C.    1030(a)(4).    The wire  fraud and          computer fraud  prosecution that  led to the  conviction survived          serious challenges put forward  by Czubinski in various pre-trial          motions.   Given the broad  scope of the  federal fraud statutes,          motions charging insufficient pleadings or  selective prosecution          generally deserve careful consideration.   We need not scrutinize          the lower court's rejection of the defendant's arguments in favor          of  dismissing the  indictment, however,  because we  reverse the          conviction on the clearer ground that the trial evidence mustered          by  the government was insufficient  to support a guilty verdict,          and  hold that the  defendant's motion for  judgment of acquittal          should have been granted on all counts.  Unauthorized browsing of          taxpayer files, although certainly inappropriate conduct, cannot,          without more, sustain this federal felony conviction.                                      BACKGROUND                                      BACKGROUND          I.  Pertinent Facts          I.  Pertinent Facts                    On  an appeal  from a  jury conviction,  we review  the          relevant facts  in the light  most favorable  to the  government.          United States v. Tierney, 760 F.2d 382, 384 (1st Cir. 1985).  The          _____________    _______          evidence  in this case,  so presented,  is inadequate  to support          convictions on either the wire fraud or computer fraud charges.                    For all periods relevant to the acts giving rise to his          conviction,  the defendant  Czubinski was  employed as  a Contact                                         -2-          Representative  in the  Boston  office of  the Taxpayer  Services          Division of the Internal Revenue Service ("IRS").  To perform his          official duties, which  mainly involved answering questions  from          taxpayers regarding their  returns, Czubinski routinely  accessed          information from one of  the IRS's computer systems known  as the          Integrated  Data  Retrieval  System  ("IDRS").    Using  a  valid          password given  to Contact Representatives, certain search codes,          and  taxpayer  social security  numbers,  Czubinski  was able  to          retrieve, to  his terminal  screen in  Boston, income  tax return          information regarding virtually any taxpayer  -- information that          is  permanently  stored in  the  IDRS  "master file"  located  in          Martinsburg, West Virginia.  In the period of Czubinski's employ,          IRS rules plainly stated that employees with passwords and access          codes were not permitted to  access files on IDRS outside of  the          course of their official duties.1                     In  1992, Czubinski  carried out  numerous unauthorized                                        ____________________          1  In 1987 Czubinski  signed an acknowledgment of receipt  of the          IRS Rules of Conduct, which contained the following rule:                      Employees  must  make  every   effort  to                      assure security  and prevent unauthorized                      disclosure of  protected information data                      in the  use of Government owned or leased                      computers.    In addition,  employees may                      not use any  Service computer system  for                      other than official purposes.          See  Government's Exhibit  1.   In  addition, Czubinski  received          ___          separate rules regarding use of the IDRS, one of which states:                       Access  only  those accounts  required to                      accomplish your official duties.          See Government's Exhibit 3.          ___                                         -3-          searches  of IDRS files.   He knowingly disregarded  IRS rules by          looking  at  confidential  information  obtained   by  performing          computer searches that were outside of the scope of his duties as          a  Contact Representative,  including,  but not  limited to,  the          searches  listed in the  indictment.2  Audit  trails performed by          internal  IRS auditors  establish that Czubinski  frequently made          unauthorized accesses on  IDRS in 1992.   For example,  Czubinski          accessed  information   regarding:    the  tax   returns  of  two          individuals involved in the David Duke presidential campaign; the          joint  tax return of an assistant district attorney (who had been          prosecuting  Czubinski's father on  an unrelated  felony offense)          and his  wife;   the  tax  return of  Boston  City Counselor  Jim          Kelly's Campaign  Committee (Kelly had defeated  Czubinski in the          previous election for the Counselor seat for District 2); the tax          return  of one of his brothers' instructors; the joint tax return          of a Boston Housing Authority police officer, who was involved in          a community  organization with  one of Czubinski's  brothers, and          the officer's wife; and the  tax return of a woman  Czubinski had          dated a few times.  Czubinski  also accessed the files of various          other social acquaintances by performing unauthorized searches.                      Nothing  in  the  record indicates  that  Czubinski did          anything more than knowingly disregard IRS rules by observing the          confidential information he accessed.   No evidence suggests, nor                                        ____________________          2  The indictment charged ten  counts of wire fraud for accessing          the  return  information  of  ten different  entities;  the  four          computer fraud counts (counts eleven through fourteen) identified          unauthorized searches  that also  underlay four of  the ten  wire          fraud counts (counts one, two, eight and nine).                                         -4-          does  the  government  contend,   that  Czubinski  disclosed  the          confidential information he  accessed to any third  parties.  The          government's only  evidence demonstrating  any intent to  use the          confidential  information  for  nefarious  ends  was   the  trial          testimony of William A. Murray, an acquaintance  of Czubinski who          briefly  participated in  Czubinski's local Invisible  Knights of          the Ku Klux Klan ("KKK") chapter and worked with him on the David          Duke campaign.   Murray testified that Czubinski had  once stated          at a social  gathering in "early  1992" that "he intended  to use          some of that information to build dossiers on people" involved in          "the white  supremacist movement."   Trial Transcript, Vol.  2 at          170,  188.  There is, however, no evidence that Czubinski created          dossiers, took steps  toward making dossiers (such as by printing          out  or recording the information  he browsed), or  shared any of          the  information he  accessed in  the years following  the single          comment  to Murray.   No  other witness  testified to  having any          knowledge of  Czubinski's alleged intent to  create "dossiers" on          KKK members.                    The  record shows  that Czubinski  did not  perform any          unauthorized searches after 1992.  He continued to be employed as          a  Contact Representative  until  June 1995,  when  a grand  jury          returned  an indictment against him on ten counts of federal wire          fraud under 18  U.S.C.    1343, 1346, and  four counts of federal          interest computer fraud under 18 U.S.C.   1030(a)(4).                    The  portion  of  the  indictment  alleging wire  fraud          states that Czubinski defrauded  the IRS of confidential property                                         -5-          and defrauded the IRS  and the public  of his honest services  by          using  his  valid  password   to  acquire  confidential  taxpayer          information  as part  of  a scheme  to:  1) build  "dossiers"  on          associates in the KKK; 2) seek information regarding an assistant          district attorney who was  then prosecuting Czubinski's father on          an unrelated criminal charge;  and 3) perform opposition research          by inspecting the records of a political opponent in the race for          a Boston  City  Councilor  seat.    The  wire  fraud  indictment,          therefore,  articulated particular  personal  ends  to which  the          unauthorized   access   to   confidential   information   through          interstate wires was allegedly a means.                    The  portion  of  the  indictment  setting  forth   the          computer fraud charges  stated that Czubinski  obtained something          of  value, beyond the mere unauthorized use of a federal interest          computer, by performing certain searches -- searches representing          a subset of those making up the mail fraud counts.          II.  Proceedings Below          II.  Proceedings Below                    After   indictment  and   arraignment  in   June  1995,          Czubinski filed a motion  to dismiss the indictment, a  motion to          strike surplusage from the indictment, and a motion for discovery          from the government relating to a claim of selective prosecution.          In separate  orders, a  magistrate judge  and the district  court          rejected all of these motions.  Specifically,  the district court          rejected  Czubinski's argument  that counts  1 through 10  of the          indictment must be dismissed  because "browsing" does not deprive          the  IRS of any property and because section 1346, the intangible                                         -6-          right to honest  services amendment  to the mail  and wire  fraud          statutes, was  unconstitutionally vague  as applied  to him.   In          December   1995,   Czubinski  filed   motions  in   limine  which                                                         ___________          essentially  sought  to  prevent  references  to   certain  white          supremacist activities, such as his membership in  a KKK chapter,          during  trial.  This motion  was also denied,  although the trial          court  gave a  limiting  instruction regarding  the relevance  of          Czubinski's KKK  membership  to  a  finding  of  wire  fraud  and          computer fraud.                    On  December  15,  1995,  the   district  court  denied          Czubinski's motion for judgment of acquittal on all counts except          for count 3,3 and on that day the jury returned a verdict finding          Czubinski guilty on  all thirteen remaining  counts.  On  appeal,          Czubinski challenges  the  denial of  his motion  to dismiss  the          indictment, including  the rejection  of a  selective prosecution          claim,   the finding that he had not  made out a prima facie case          of  selective prosecution,  the admission  at trial  of allegedly          inflammatory   evidence   of   Czubinski's    white   supremacist          activities, the  denial of  his  motion for  acquittal, the  jury          instructions, and the sentencing determination.                    We reverse on the ground that the district  court erred          in denying Czubinski's motion for acquittal, and therefore bypass          Czubinski's other claims.                                        ____________________          3    On  count  3,  the  district  court  ruled  that  there  was          insufficient proof showing that the search alleged in count 3 was          not requested by the taxpayer whose files were browsed.                                         -7-                                  STANDARD OF REVIEW                                  STANDARD OF REVIEW                    A motion  for judgment of acquittal  under Federal Rule          of Criminal Procedure 29 is the proper vehicle for a defendant to          make  a sufficiency challenge.  See 2 C. Wright, Federal Practice                                          ___          and Procedure:  Crim. 2d   467 (1982). The denial of a motion for          judgment  of acquittal presents a question of law, and our review          is de  novo. See United States  v. Staula, 80 F.3d  596, 604 (1st             ________  ___ _____________     ______          Cir.   1996).    We  determine  anew  whether  "the  evidence  is          sufficient to sustain a conviction."  Fed. R. Crim. P. 29(a).                    In determining the evidentiary sufficiency  of a guilty          verdict,  "the relevant  question is  whether, after  viewing the          evidence  in the  light  most favorable  to the  prosecution, any                                                                        ___          rational trier of fact could have found the essential elements of          the crime beyond a  reasonable doubt."  Jackson v.  Virginia, 443                                                  _______     ________          U.S.  307, 319 (1979); see  also United States  v. Valle, 72 F.3d                                 _________ _____________     _____          210, 216  (1st Cir.  1995).   The  scope of  review  is over  the          totality of  the evidence,  both direct and  circumstantial:   we          "take  a hard look at  the record" and  "reject those evidentiary          interpretations    and    illations   that    are   unreasonable,          insupportable, or overly speculative."  United States v. Spinney,                                                  _____________    _______          65 F.3d 231, 234 (1st Cir. 1995).                                      DISCUSSION                                      DISCUSSION          I.  The Wire Fraud Counts          I.  The Wire Fraud Counts                    We  turn first  to Czubinski's  conviction on  the nine                                         -8-          wire fraud counts.4  To support a conviction for wire fraud,  the          government  must prove  two elements  beyond a  reasonable doubt:          (1) the defendant's knowing and willing participation in a scheme          or artifice to defraud  with the specific intent to  defraud, and          (2) the use of interstate  wire communications in furtherance  of          the scheme.  United States v.  Sawyer, 85 F.3d 713, 723 (1st Cir.                       _____________     ______          1996) (citing United States  v. Cassiere, 4 F.3d 1006,  1011 (1st                        _____________     ________          Cir.  1993)).    Although  defendant's  motion  for  judgment  of          acquittal places emphasis on shortcomings in proof with regard to          the  second element,  by arguing that  the wire  transmissions at          issue were not proved to be interstate, we find the first element          dispositive and hold that the government failed to prove beyond a          reasonable doubt  that the defendant willfully  participated in a          scheme  to defraud within the meaning of the wire fraud statute.5                                        ____________________          4   The federal wire fraud statute, 18 U.S.C.   1343, provides in          pertinent part:                      Whoever, having devised  or intending  to                      devise any scheme or artifice to defraud,                      or  for obtaining  money  or property  by                      means of false  or fraudulent  pretenses,                      representations,  or  promises, transmits                      or causes  to be transmitted by  means of                      wire . . . communication in interstate or                      foreign  commerce,  any writings,  signs,                      signals,  pictures,  or  sounds  for  the                      purpose  of  executing  such   scheme  or                      artifice, shall be fined under this title                      or imprisoned  not more than  five years,                      or both.           5  We  do not find that it was irrational  for a trier of fact to          conclude  beyond  a  reasonable doubt  that  Czubinski's searches          caused information from the IDRS master file in Martinsburg, West          Virginia, to  be sent to his terminal  in Boston.  The interstate          element   could  reasonably   be  inferred   from  circumstantial          evidence.    See,  e.g.,  Testimony of  Edward  Makaskill,  Trial                       ___   ____                                         -9-          That  is, assuming  the counts  accurately describe  unauthorized          searches   of   taxpayer   returns   through    interstate   wire          transmissions, there is insufficiant  record evidence to permit a          rational  jury to conclude that  the wire transmissions were part          of a criminal scheme to defraud under sections 1343 and 1346.                    The government  pursued two  theories of wire  fraud in          this prosecution:  first, that Czubinski defrauded the IRS of its          property,  under   section   1343,  by   acquiring   confidential          information for  certain intended personal uses;  second, that he          defrauded the IRS and the public of their intangible right to his          honest  services, under sections 1343 and 1346.6  We consider the          evidence with regard to each theory, in turn.          A.  Scheme to Defraud IRS of Property          A.  Scheme to Defraud IRS of Property                    The  government  correctly   notes  that   confidential                                        ____________________          Transcript, Vol. 3  at 82 (explaining that  certain command codes          used by Czubinski generally  access information from out-of-state          computer).          6    The district  court's jury  instructions  on the  wire fraud          counts repeat both of the scheme to defraud theories:                                 In  this case, the government has charged                      Mr. Czubinski  with devising a  scheme or                      artifice,  that  is, a  plan,  to do  two                      things:                      (1) to defraud the IRS, the United States                      Government,   and    the   citizens   and                      taxpayers   of   the  United   States  by                      depriving them of their  intangible right                      to   his  honest   services  as   an  IRS                      employee; and                      (2) to defraud the  IRS and to obtain its                      property, that  is, confidential taxpayer                      information,    by    false    pretenses,                      representations and promises.          Trial Transcript, Vol. 4 at 76-77.                                         -10-          information  may constitute  intangible "property"  and that  its          unauthorized dissemination or other use  may deprive the owner of          its  property rights.  See  Carpenter v. United  States, 484 U.S.                                 ___  _________    ______________          19, 26  (1987) ("Confidential business information  has long been          recognized as property. . . .  [A newspaper] had a property right          in  keeping  confidential  and  making exclusive  use,  prior  to          publication,  of  the  schedule  and contents"  of  a  particular          column.).   Where such deprivation is  effected through dishonest          or  deceitful means, a "scheme to defraud," within the meaning of          the  wire fraud  statute, is  shown.   See id.  at  27.   Thus, a                                                 ___ __          necessary step toward satisfying  the "scheme to defraud" element          in  this  context  is  showing  that  the  defendant intended  to          "deprive" another of their protected right.                    The government, however, provides no case in support of          its   contention   here   that  merely   accessing   confidential          information, without doing, or clearly intending  to do, more, is          tantamount  to a deprivation of IRS property under the wire fraud          statute.  In Carpenter, for example, the confidential information                       _________          regarding the contents of a newspaper column was converted to the          defendants's use to  their substantial  benefit.  See  id. at  27                                                            ___  __          (defendants participated in "ongoing  scheme to share profit from          trading in anticipation" of  newspaper column).  We do  not think          that  Czubinski's unauthorized  browsing, even  if done  with the          intent  to deceive the IRS  into thinking he  was performing only          authorized  searches,  constitutes  a  "deprivation"  within  the          meaning of the federal fraud statutes.                                         -11-                    Binding  precedents,  and   good  sense,  support   the          conclusion  that  to  "deprive"  a  person  of  their  intangible          property interest in confidential information under section 1343,          either some  articulable  harm  must befall  the  holder  of  the          information  as a result  of the defendant's  activities, or some          gainful  use  must  be  intended  by  the  person  accessing  the          information,  whether  or  not  this  use is  profitable  in  the          economic sense.7    Here, neither the taking of the IRS' right to          "exclusive use" of the  confidential information, nor Czubinski's          gain from access to the information, can be shown absent evidence          of his "use"  of the information.   Accordingly, without evidence          that  Czubinski used or intended to  use the taxpayer information          (beyond mere browsing),  an intent to  deprive cannot be  proven,          and, a fortiori, a scheme to defraud is not shown.               __________                    All  of the cases cited by the government in support of          their contention that the confidentiality breached by Czubinski's          search  in itself constitutes  a deprivation of  property in fact          support our  holding today, for they all involve, at a minimum, a          finding of a further intended use of the confidential information          accessed by the defendants.   The government's best support comes          from  United  States v.  Seidlitz, 589  F.2d  152, 160  (4th Cir.                ______________     ________          1978),  in which  a former  employee of  a computer  systems firm          secretly accessed its files, but never was shown to have sold  or                                        ____________________          7  For  example, had  the government  established that  Czubinski          disclosed or intended to  disclose taxpayer information, then the          deprivation or intended deprivation of property rights would have          been shown.                                           -12-          used the data he accessed, and was nevertheless convicted of wire          fraud.  The affirming  Fourth Circuit held, however, that  a jury          could  have reasonably  found  that, at  the  time the  defendant          raided a  competitor's computer  system, he intended  to retrieve          information that would be helpful for his own start-up, competing          computer  firm.  In the instant case, Czubinski did indeed access          confidential  information  through  fraudulent  pretenses  --  he          appeared to  be performing his  duties when  in fact he  used IRS          passwords to perform unauthorized searches.  Nevertheless, it was          not proven that  he intended to deprive the IRS of their property          interest through either disclosure or use of that information.                    The resolution  of the instant case  is complex because          it  is  well-established that  to be  convicted  of mail  or wire          fraud, the defendant need not successfully carry  out an intended          scheme to defraud.  See, e.g., United States v. Serrano, 870 F.2d                              ___  ____  _____________    _______          1, 6 (1st Cir. 1989) (defendant need only participate in a scheme          to  defraud with the  intent to achieve  its illicit objectives);          Seidlitz, 589 F.2d at 160 (where circumstantial evidence suffices          ________          to  prove intent to accomplish  scheme to defraud,  actual use of          confidential information need not be shown).  The government does          not contend  either that  Czubinski actually created  dossiers or          that   he  accomplished  some  other   end  through  use  of  the          information.   It need  not do so.   All that  the government was          required  to  prove  was the  intent  to  follow  through with  a                                        ______          deprivation  of the IRS's property and the use or foreseeable use          of interstate  wire transmissions pursuant  to the accomplishment                                         -13-          of the scheme  to defraud.  See, e.g.,  United States v. Silvano,                                      ___  ____   _____________    _______          812 F.2d  754, 760  (1st Cir.  1987).  In  the case  at bar,  the          government failed to make even this showing.                    The  fatal flaw in the government's case is that it has          not  shown beyond a  reasonable doubt that  Czubinski intended to          carry out a scheme to deprive the IRS of its property interest in          confidential information.   Had there been  sufficient proof that          Czubinski  intended either  to create  dossiers  for the  sake of          advancing   personal  causes   or  to   disseminate  confidential          information to third parties, then his actions in searching files          could arguably be said to be a step in furtherance of a scheme to          deprive  the  IRS  of   its  property  interest  in  confidential          information.   The government's case regarding Czubinski's intent          to make  any  use of  the  information he  browsed rests  on  the          testimony  of one witness at trial who stated that Czubinski once          remarked at a social gathering that he intended to build dossiers          on  potential KKK informants.8   We must assume,  on this appeal,          that Czubinski did indeed make such a comment.  Nevertheless, the          fact that during  the months  following this remark  -- that  is,          during  the  period  in  which Czubinski  made  his  unauthorized          searches -- he  did not  create dossiers (there  was no  evidence          that he created dossiers either during or after the period of his          unauthorized  searches); given the fact that he did not even take          steps toward creating dossiers, such as recording or printing out          the information; given the  fact that no other  person testifying                                        ____________________          8  Testimony of William J. Murray. See Background, supra.                                             ___             _____                                         -14-          as to Czubinski's involvement  in white supremacist organizations          had  any  knowledge  of  Czubinski's  alleged  intent  to  create          dossiers or use confidential information; and given the fact that          not  a  single piece  of  evidence suggests  that  Czubinski ever          shared taxpayer  information with others, no  rational jury could          have  found beyond  a reasonable  doubt that, when  Czubinski was          browsing  taxpayer files,  he was  doing so  in furtherance  of a          scheme to use the information he browsed for private purposes, be          they  nefarious or otherwise.  In addition, there was no evidence          that  Czubinski   disclosed,  or  used  to   his  advantage,  any          information regarding political opponents or regarding the person          prosecuting his father.                    Mere  browsing of the records  of people about whom one          might have a particular  interest, although reprehensible, is not          enough  to sustain a wire  fraud conviction on  a "deprivation of          intangible property" theory.   Curiosity  on the part  of an  IRS          officer may  lead  to dismissal,  but  curiosity alone  will  not          sustain a finding of participation in a felonious criminal scheme          to deprive the IRS of its property.          B.  Honest Services Fraud (Section 1346)          B.  Honest Services Fraud (Section 1346)                    In  McNally v. United States, 483 U.S. 350 (1987),  the                        _______    _____________          Supreme Court held that  the mail and wire fraud statutes  do not          prohibit schemes to defraud individuals of their intangible, non-          property  right to  honest government  services. Id.  at 359-60.9                                                           ___                                        ____________________          9  Before McNally, however, the fraud statutes had been  "read as                    _______          a broad  shield"  by  this  and  other  circuits,  applying,  for          example,  to cases of corruption on the ground that the defendant                                         -15-          Congress responded  to McNally in 1988 by  enacting section 1346,                                 _______          the honest services amendment, which provides:                      For  the purposes  of  this chapter,  the                      term  "scheme  or  artifice  to  defraud"                      includes  a scheme or artifice to deprive                      another of the intangible right of honest                      services.          18 U.S.C.   1346 (effective Nov.  11, 1988).  We have held, after          considering the relevant legislative  history, that section  1346          effectively  restores to  the scope  of the  mail and  wire fraud          statutes10   their   pre-McNally   applications   to   government                                   _______          officials'  schemes  to defraud  individuals of  their intangible          right  to honest  services.   See  Grandmaison,  77 F.3d  at  566                                        ___  ___________          (collecting cases).11                    We  recently had  the opportunity  to discuss,  at some          length,  the  proper  application  of  the  section  1346  honest          services amendment to the wrongful acts of public officials.  See                                                                        ___          Sawyer, 85 F.3d at 722-26.   The discussion and holding in Sawyer          ______                                                     ______                                        ____________________          had used  the mails  in furtherance  of a  scheme to defraud  the          public  of its intangible right  to honest services.   See, e.g.,                                                                 ___  ____          Silvano,  812 F.2d  754 (1st  Cir. 1987)  (applying, pre-McNally,          _______                                                  _______          mail fraud statute to local political corruption);  see generally                                                              _____________          United  States v. Grandmaison, 77  F.3d 555, 565  (1st Cir. 1996)          ______________    ___________          (discussing change wrought by McNally).                                        _______          10    Identical standards  apply  in determining  the  "scheme to          defraud"  element under the mail and wire fraud statutes.  United                                                                     ______          States v. Boots, 80  F.3d 580, 586  n.11 (1st Cir. 1996)  (citing          ______    _____          Carpenter, 484 U.S. at 25 n.6).          _________          11  Finding insufficient evidence to convict, we do not reach the          issue of  whether the honest services  amendment raises vagueness          concerns.  Cf. United States v. Waymer, 55 F.3d 564, 568-69 (11th                     ___ _____________    ______          Cir. 1995) (rejecting facial vagueness and overbreadth  challenge          to section 1346).                                         -16-          directly guide  our disposition of the instant  appeal.12  First,          as  a general matter, we noted in  Sawyer that although the right                                             ______          to  honest  services "eludes  easy  definition,"  honest services          convictions  of  public   officials  typically  involve   serious          corruption,  such as  embezzlement  of public  funds, bribery  of          public  officials, or  the failure  of public  decision-makers to          disclose certain  conflicts of interest.  Id. at 724.  Second, we                                                    ___          cautioned  that "[t]he  broad scope  of  the mail  fraud statute,          however, does not encompass every instance of official misconduct          that  results  in the  official's personal  gain."   Id.  at 725.                                                               ___          Third,  and most  importantly, Sawyer  holds that  the government                                         ______          must not  merely indicate wrongdoing  by a  public official,  but          must also demonstrate that the wrongdoing at issue is intended to          prevent or call into question the proper or impartial performance          of that public  servant's official  duties.  Id.  at 725  (citing                                                       ___          pre-McNally  precedent  to  demonstrate that  even  where  public              _______          officials  violated state laws,  their actions were  not found to          defraud citizens of  their right to honest  services, because the          officials did not actually fail to perform their official  duties          properly).   In other  words, "although  a public  official might          engage  in   reprehensible  misconduct  related  to  an  official                                        ____________________          12   In Sawyer, we  vacated and remanded  for further factfinding                  ______          the mail  and wire fraud conviction of a private lobbyist who was          found to have violated  Massachusetts' gift and gratuity statutes          in the course of his lobbying activities.  See 85 F.3d at 730-31.                                                     ___          The  conviction  was vacated  because the  violation of  the gift          statute,  in itself, was held insufficient  to establish a scheme          to defraud the public of its intangible right to honest services.          See id.          ___ ___                                         -17-          position, the conviction of that official cannot stand where  the          conduct does not actually  deprive the public of its right to her          honest services, and it is not shown to intend that result."  Id.                                                                        ___                    Applying these  principles to Czubinski's  acts, it  is          clear that his conviction  cannot stand.  First, this  case falls          outside  of  the  core   of  honest  services  fraud  precedents.          Czubinski  was not bribed  or otherwise influenced  in any public          decision-making capacity.  Nor did he embezzle funds.  He did not          receive, nor  can it  be found that  he intended to  receive, any          tangible  benefit.     His  official  duty  was   to  respond  to          informational requests from taxpayers regarding their returns,  a          relatively straightforward  task that  simply does not  raise the          specter  of   secretive,  self-interested   action,  as  does   a          discretionary,  decision-making  role.    Cf.  United  States  v.                                                    ___  ______________          McNieve, 536 F.2d  1245, 1251  (8th Cir. 1976)  (finding no  mail          _______          fraud  violation  where  city  employee  accepted  gratuities  in          connection with non-discretionary duty).                    Second,  we believe  that  the cautionary  language  of          Sawyer is  particularly  appropriate  here,  given  the  evidence          ______          amassed by the defendant at trial indicating that during his span          of employment at IRS, he received no indication from his employer          that this workplace violation  -- the performance of unauthorized          searches   --  would   be  punishable   by  anything   more  than                                         -18-          dismissal.13  "To allow every transgression of state governmental          obligations to amount to mail  fraud would effectively turn every          such   violation  into   a   federal  felony;   this  cannot   be          countenanced."  Sawyer, 85 F.3d at 728.  Here, the  threat is one                          ______          of transforming governmental workplace violations  into felonies.          We find no evidence that Congress intended to create what amounts          to a draconian personnel  regulation.  We hesitate to  imply such          an  unusual result  in the  absence  of the  clearest legislative          mandate.                    These general considerations, although serious, are not          conclusive:  they  raise  doubts  as to  the  propriety  of  this          conviction that  can be outweighed  by sufficient  evidence of  a          scheme to  defraud.   The third  principle identified in  Sawyer,                                                                    ______          instructing  us as  to  the basic  requirements  of a  scheme  to          defraud  in this  context,  settles any  remaining  doubts.   The          conclusive consideration  is that  the government simply  did not          prove that Czubinski deprived, or intended to deprive, the public          or his  employer of their right to his honest services.  Although          he  clearly  committed   wrongdoing  in  searching   confidential          information, there is no  suggestion that he failed to  carry out          his official tasks adequately, or intended to do so.                    The government alleges that,  in addition to defrauding          the  public of his  honest services, Czubinski  has defrauded the                                        ____________________          13  See  Appendices to Czubinski's  Motion to Dismiss  (including              ___          February 8, 1994 IRS memorandum to employees indicating  that the          probable   penalty  for  "unauthorized   accessing"  of  taxpayer          information ranges from "Reprimand" to "Removal").                                         -19-          IRS  as  well.   The  IRS  is  a public  entity,  rendering  this          contention  sufficiently  answered  by  our  holding  above  that          Czubinski  did not  defraud  the public  of his  honest services.          Even if the IRS were a private employer, however, the pre-McNally                                                                    _______          honest  services  convictions  involving  private  fraud  victims          indicate that  there must be a  breach of a fiduciary  duty to an          employer  that involves  self-dealing of  an  order significantly          more  serious  than the  misconduct at  issue  here.   See, e.g.,                                                                 ___  ____          United  States v. Lemire, 720 F.2d 1327, 1332-34 (D.C. Cir. 1983)          ______________    ______          (employee took bribes  and did not  disclose that contractor  was          overcharging); United States v.  Seigel, 717 F.2d 9, 14  (2d Cir.                         _____________     ______          1983)   (employees  used   corporate   funds  for   non-corporate          purposes);  United States  v. Boffa, 688 F.2d  919, 931 (3d  Cir.                      _____________     _____          1982) (union official bribed into accepting lower wages for union          members).   Once again, the  government has failed  to prove that          Czubinski  intended to  use  the IRS  files  he browsed  for  any          private purposes, and  hence his actions, however  reprehensible,          do not  rise to the level of a  scheme to defraud his employer of          his honest services.          II.  The Computer Fraud Counts          II.  The Computer Fraud Counts                    Czubinski  was convicted  on all  four of  the computer          fraud counts on which he was indicted;  these counts arise out of          unauthorized searches that also  formed the basis of four  of the          ten  wire fraud counts in  the indictment.   Specifically, he was          convicted  of  violating  18  U.S.C.    1030(a)(4),  a  provision          enacted in the Computer Fraud and Abuse Act of 1986.  Section                                         -20-          1030(a)(4) applies to:                      whoever .  . . knowingly and  with intent                      to defraud, accesses  a Federal  interest                      computer   without    authorization,   or                      exceeds authorized access,  and by  means                      of  such  conduct  furthers the  intended                      fraud  and  obtains  anything  of  value,                      unless the  object of the  fraud and  the                      thing obtained consists  only of the  use                      of the computer.           We  have never  before addressed  section 1030(a)(4).   Czubinski          unquestionably exceeded  authorized access to a  Federal interest          computer.14  On appeal he argues that he did not obtain "anything          of  value."   We  agree, finding  that  his searches  of taxpayer          return information did not satisfy the statutory requirement that          he  obtain  "anything of  value."   The  value of  information is          relative to one's  needs and objectives; here, the government had          to show that the  information was valuable to Czubinski  in light          of a fraudulent scheme.  The government failed, however, to prove          that  Czubinski  intended  anything  more than  to  satisfy  idle          curiosity.                      The  plain language  of  section 1030(a)(4)  emphasizes          that more  than mere  unauthorized  use is  required: the  "thing          obtained"  may not  merely be the  unauthorized use.   It  is the          showing  of some  additional  end --  to  which the  unauthorized          access is a means -- that is  lacking here.  The evidence did not          show that Czubinski's end  was anything more than to  satisfy his                                        ____________________          14  "[T]he  term 'exceeds  authorized access' means  to access  a          computer with authorization and  to use such access to  obtain or          alter  information  in the  computer  that  the  accesser is  not          entitled so to obtain or alter."  18 U.S.C.   1030(e)(6).                                          -21-          curiosity  by viewing  information about  friends, acquaintances,          and  political rivals.  No evidence suggests that he printed out,          recorded, or used the  information he browsed.  No  rational jury          could conclude beyond a  reasonable doubt that Czubinski intended          to  use   or  disclose  that  information,   and  merely  viewing          information cannot be deemed  the same as obtaining something  of          value for the purposes of this statute.15                    The legislative history further supports our reading of          the  term "anything  of  value."    "In  the  game  of  statutory          interpretation, statutory language  is the ultimate trump  card,"          and the remarks of sponsors of legislation are authoritative only          to the extent that they are compatible with the plain language of          section 1030(a)(4).   Rhode Island v.  Narragansett Indian Tribe,                                ____________     _________________________          19  F.3d 685, 699  (1st Cir. 1994) (citing  Grove City College v.                                                      __________________          Bell, 465  U.S. 555,  567 (1984)).  Here,  a Senate  co-sponsor's          ____          comments  suggest that  Congress intended  section 1030(a)(4)  to          punish  attempts  to steal  valuable data,  and  did not  wish to          punish mere unauthorized access:                     The  acts  of  fraud  we  are  addressing  in                    proposed  section 1030(a)(4)  are essentially                    thefts  in  which  someone  uses   a  federal                                        ____________________          15   The  district  court, in  denying a  motion  to dismiss  the          computer  fraud   counts  in  the  indictment,   found  that  the          indictment  sufficiently alleged  that the  confidential taxpayer          information was itself a "thing of value" to Czubinski, given his          ends.  The indictment,  of course, alleged specific uses  for the          information, such  as creating dossiers on KKK members, that were          not proven at trial.  In light of the trial evidence -- which, as          we have said, indicates  that there was no  recording, disclosure          or  further use of the  confidential information --  we find that          Czubinski  did  not  obtain   "anything  of  value"  through  his          unauthorized searches.                                         -22-                    interest computer to wrongly obtain something                    of value from another. . . . Proposed section                    1030(a)(4)   is   intended  to   reflect  the                    distinction between the theft of information,                    a  felony, and  mere  unauthorized access,  a                    misdemeanor.            132 Cong.  Rec. 7128,  7129, 99th Cong.,  2d. Sess. (1986).   The          Senate Committee  Report further  underscores the fact  that this          section  should  apply to  those  who  steal information  through          unauthorized access as part of an illegal scheme:                    The  Committee  remains convinced  that there                    must be a  clear distinction between computer                    theft, punishable as a felony  [under section                    1030(a)(4)],    and    computer     trespass,                    punishable  in   the  first  instance   as  a                    misdemeanor  [under  a different  provision].                    The  element in  the  new  paragraph  (a)(4),                    requiring a showing of an intent to  defraud,                    is meant to preserve  that distinction, as is                    the requirement that the  property wrongfully                    obtained via computer  furthers the  intended                    fraud.          S.  Rep. No.  132,  99th  Cong.,  2d  Sess.,  reprinted  in  1986                                                        _____________          U.S.C.C.A.N.  2479.   For the  same reasons  we deemed  the trial          evidence  could not support a finding that Czubinski deprived the          IRS of its property,  see discussion of wire fraud  under section                                ___          1343 supra,  we find  that  Czubinski has  not obtained  valuable               _____          information  in  furtherance  of  a  fraudulent  scheme  for  the          purposes of section 1030(a)(4).                                      CONCLUSION                                      CONCLUSION                    We  add a cautionary note.   The broad  language of the          mail  and wire fraud statutes  are both their  blessing and their          curse.  They can address new forms of serious crime  that fail to          fall  within more  specific legislation.    See United  States v.                                                      ___ ______________                                         -23-          Maze,  414 U.S. 395, 405-06 (1974) (observing that the mail fraud          ____          statute serves "as a  first line of defense" or  "stopgap device"          to tackle  new types of frauds  before particularized legislation          is developed)  (Burger, C.J.,  dissenting).   On the other  hand,          they  might be used to  prosecute kinds of  behavior that, albeit          offensive  to the  morals or  aesthetics of  federal prosecutors,          cannot  reasonably  be expected  by the  instigators to  form the          basis of  a federal felony.   The  case at bar  falls within  the          latter  category.    Also   discomforting  is  the  prosecution's          insistence,  before  trial,  on  the  admission  of  inflammatory          evidence   regarding   the   defendant's   membership   in  white          supremacist  groups purportedly as a  means to prove  a scheme to          defraud,  when, on appeal, it  argues that unauthorized access in          itself is  a  sufficient ground  for  conviction on  all  counts.          Finally, we caution that the wire fraud statute must not serve as          a vehicle for  prosecuting only  those citizens  whose views  run          against the  tide, no  matter how incorrect  or uncivilized  such          views are.                    For  the reasons  stated in this  opinion, we  hold the          district  court's denial  of defendant's  motion for  judgment of          acquittal on counts 1, 2,  and 4 through 14, to be in error.  The          defendant's conviction is thus reversed on all counts.                                         reversed                                         ________                                         -24-
