                                                                           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                           NOT FOR PUBLICATION                              JUL 15 2014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


                                           3
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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