USA v. Andrew Auernheimer

Filing 78

ECF FILER: Transcript of oral argument on 03/19/2014 prepared at the direction of the Court. (HMF)

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
.
.
Third Circuit: #13-1816
.
Appellee,
.
.
V.
.
.
Andrew Auernheimer,
.
a/k/a Weev,
.
a/k/a Weelos,
.
a/k/a Escher,
.
.
Andrew Auernheimer,
.
.
Appellant.
.
...............................................................
United States of America,

Transcript from the audio recording of the oral
argument held March 19, 2014 at the United States Courthouse,
601 Market Street, Philadelphia, Pennsylvania. This transcript
was produced by Writer’s Cramp, Inc., certified court
transcribers for the United States Court of Appeals.
BEFORE CIRCUIT JUDGES:
THE HONORABLE MICHAEL A. CHAGARES
THE HONORABLE JOSEPH A. GREENAWAY, JR.
THE HONORABLE THOMAS I. VANASKIE
APPEARANCES:
For Appellee:

Glenn J. Moramarco, Esq.
Office of United States
Attorney
Camden Federal Building
& Courthouse
401 Market Street
Camden, NJ 08101

2
Mark E. Coyne, Esq.
Office of United States
Attorney
970 Broad Street-Rm. 700
Newark, NJ 07102
For Appellant:

Orin S. Kerr, Esq.
George Washington University
2000 H. Street, N.W.
Washington, DC 20052-0000
Tor B. Ekeland, Esq.
Tor Ekeland
6th Floor, Suite 2
155 Water Street
Brooklyn, NY 11201
Hanni M. Fakhoury, Esq.
Electronic Frontier Foundation
815 Eddy Street
San Francisco, CA 94109
Marcia C. Hofmann, Esq.
25 Taylor Street
San Francisco, CA 94102
Mark H. Jaffe, Esq.
Tor Ekeland
6th Floor, Suite 2
155 Water Street
Brooklyn, NY 11201
Steven P. Ragland, Esq.
Keker & Van Nest
633 Battery Street
San Francisco, CA 94111

Transcribing Firm:

Writer's Cramp, Inc.
6 Norton Rd.
Monmouth Jct., NJ 08852
732-329-0191

Proceedings recorded by electronic sound recording, transcript
produced by transcription service.

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JUDGE CHAGARES:

Good morning.

The first case we’ll

hear will be United States versus Auernheimer.

3

MR. KERR:

May it please the Court, my name is Orin

4

Kerr and I represent Andrew Auernheimer.

5

minutes –-

6
7

JUDGE CHAGARES:

Before you start, counsel, are you

going to reserve any time for rebuttal?

8
9

I request four

MR. KERR:

Yes, I reserve four minutes for rebuttal,

please.

10

JUDGE CHAGARES:

11

MR. KERR:

Okay, that’s granted.

The convictions in this case should be

12

reversed because there was no unauthorized access under the

13

Computer Fraud and Abuse Act.

14

reason important to every internet user.

15

made available on the World Wide Web, such that anyone in the

16

world can access it with a web browser by simply entering the

17

website address into the address line, that information is

18

effectively published to the world.

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information available assumes the risk that others will

20

discover that information and, as a result, collecting that

21

published information cannot be unauthorized as a matter of law

22

and is legal under the Computer Fraud and Abuse Act.

23

JUDGE CHAGARES:

And that’s true for a simple
When information is

Whoever makes the

Maybe we could start at the

24

threshold issue, which you raised, venue.

Now the Supreme

25

Court tells us to look to essential conduct elements and

4
1

circumstance elements.

2

the violation of New Jersey law an essential conduct element or

3

a circumstance element?

4

MR. KERR:

Let’s deal with that a little bit.

Is

It is a circumstance element, Your Honor,

5

because it occurs in § 1030(c), which is a part of the statute

6

that only deals with the proper punishment for a violation of

7

1030(a).

8

Jersey law, it merely -- it made it a crime to access a

9

computer without authorization or exceed authorized access, and

Congress did not make it a crime to violate New

10

none of those essential conduct elements occurred in New

11

Jersey.

12

convictions in this case.

13

JUDGE VANASKIE:

So that is an alternative ground for reversing the

Now in Alleyne, the Supreme Court

14

recently said that any fact that increases the punishment that

15

a Defendant faces is an element that must be proved beyond a

16

reasonable doubt.

17

crucial element and what is a circumstance element for purposes

18

of venue?

19

So how do we distinguish between what is a

MR. KERR:

Under purpose -- for purposes of venue,

20

the distinction is between what the Defendant actually did, the

21

conduct, and the circumstances in which the person did that

22

act.

23

JUDGE VANASKIE:

But an essential element under the

24

New Jersey Statute is the disclosure of the personal

25

identifying information, so isn’t that a crucial element of

5
1

getting that felony enhancement?

2

MR. KERR:

Two points.

First, it is not a crucial

3

element, because the disclosure did not occur in New Jersey;

4

and second, it’s not an element that Congress identified as a

5

crime.

6

Jersey legislature did.

7

conduct -- in the context of the felony enhancement in

8

§ 1030(c)(2), not in one of the actual crimes set out in

9

§ 1030(a), which is where the conduct elements of the offense

10
11

The question is what Congress did, not what the New
The enhancement only occurred in the

are located.
JUDGE GREENAWAY:

So is that the distinction you

12

draw, then, between Rodriguez-Moreno on the one hand and this

13

case on the other?

14

MR. KERR:

Yes, that’s correct.

So the controlling

15

distinction under Rodriguez-Moreno and Cabrales is that between

16

the essential conduct elements and the circumstance elements,

17

where was the act occurring?

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would be obtaining information under § 1030(a)(2), but it would

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not include some sort of effect that may have occurred

20

eventually later on.

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JUDGE GREENAWAY:

So that would be the access, that

So I’m sure we’ll give your

22

adversary an opportunity to answer this question, but I

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presume, from your standpoint, venue would be rather limited,

24

you’d say Arkansas, Georgia, Texas, where else?

25

JUDGE VANASKIE:

California.

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1

MR. KERR:

California as well --

2

JUDGE GREENAWAY:

3

MR. KERR:

California obviously.

-- where Spitler was located, at least

4

four different jurisdictions where this case could have been

5

brought under § 3237, the venue statute.

6

hypothetical possibility, if there were proof, of where the

7

traffic actually passed, the course of the internet traffic.

8

If there were any evidence of that, that at least possibly

9

could have been other districts, but not merely a district

There is at least a

10

where there are alleged individuals who were related to

11

information that was disclosed.

12

of the offense.

13

JUDGE GREENAWAY:

That’s not a conduct element

One of the venue arguments they

14

make is that it should -- a factor that we take in -- oh, a

15

factor that we take into account should be the Gawker article

16

and the expanse of it, you know, where it’s available, which is

17

probably all 50 states.

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when they come up, but I presume then, venue would be proper in

19

all 50 states and you would take contrast to that, right?

20

MR. KERR:

So I presume, I’ll let them argue this

Yeah, I believe the Government’s argument

21

is that venue -- in any internet crime that leads to anything

22

posted on the web that could be viewed from the web -- that

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there would be jurisdiction wherever the news story is viewed.

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So there would be -- under the Government’s theory, there would

25

be venue in every district, and that’s contrary to the general

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1

venue principles, venue should be construed narrowly, and of

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course, this Court should discourage interpretations of the

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venue statute that would allow the Government to create venue

4

in any district where the Government would want to create

5

venue.

6

this alternate ground of reversal.

The crime just did not occur in New Jersey, which is

7

JUDGE CHAGARES:

So under your theory, the essential

8

conduct elements under the Supreme Court’s regime would be

9

accessing a computer without authorization, one, and two,

10

obtaining information, are those the conduct elements?

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MR. KERR:

That’s correct.

12

JUDGE CHAGARES:

13

MR. KERR:

Okay.

There could be exceeding authorized access

14

to the extent that’s considered distinct, although it’s

15

generally grouped together --

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17

JUDGE CHAGARES:

Oh, okay, right.

But in this case I

don’t know if that’s it.

18

MR. KERR:

But that’s correct, those are the conduct

19

elements.

And then for the second crime, count two of the

20

Indictment, the identity theft count --

21

JUDGE CHAGARES:

22

MR. KERR:

Right.

-- the essential conduct elements would be

23

the transfer, possession, use, perhaps where the underlying

24

predicate offense was under the 2nd Circuit’s precedent, and

25

none of those happened in New Jersey.

There’s no evidence of

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1

any traffic in New Jersey, there’s no evidence of any

2

individuals in New Jersey in terms of Defendants or where the

3

crime actually occurred.

4
5
6

JUDGE CHAGARES:

So your view is violation of that

New Jersey law has no relevance to the venue question.
MR. KERR:

That is correct.

It is simply part of the

7

circumstance element in the felony enhancement in § 1030(c).

8

Congress made it a felony instead of a misdemeanor to commit a

9

1030(a)(2) misdemeanor offense in furtherance of some other

10
11

crime, and that’s just the circumstance of the punishment.
JUDGE CHAGARES:

How about -- your adversary makes a

12

pretty large deal about the effects and cites our case in

13

Goldberg, it’s from 1987.

14

effects are felt in New Jersey?

15

MR. KERR:

How do you respond to that, that the

Yeah, the substantial effects test is a

16

Constitutional standard which some circuits have adopted, other

17

circuits have not, which is in addition --

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JUDGE CHAGARES:

19

MR. KERR:

Have we adopted it?

It has only been referenced in Goldberg.

20

It’s cited and the Reed case is quoted, but then the Court

21

resolves the decision on other grounds.

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Court has adopted the substantial effects test, but even where

23

it’s adopted, it is a Constitutional standard in addition to

24

the statutory standard under § 3237.

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the Government has to satisfy, not a way of establishing venue

I don’t think this

So it’s another threshold

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1

that is, in some sense, easier for the Government to satisfy

2

than the statutory venue standard.

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4

JUDGE GREENAWAY:

Let’s say -- I’m sorry, were you

going to --

5

JUDGE VANASKIE:

No.

6

JUDGE CHAGARES:

Oh, no.

7

JUDGE GREENAWAY:

Let’s say you’re right on venue,

8

all right –- we all agree you’re right.

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harmless error analysis that the Government poses?

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default to that?

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point?

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gone.

What about the
Should we

Is there any showing of prejudice at this

Obviously we’ve been through trial, it’s gone how it’s
What should be the next step?

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MR. KERR:

It’s hornbook --

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JUDGE GREENAWAY:

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MR. KERR:

Vacate and remand?

It’s hornbook law that there is no

16

harmless error test for venue errors.

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applied a harmless error standard.

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single District Court case from the Southern District of New

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York which involved just a question of which side of the

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Brooklyn Bridge the case should have been brought in.

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Circuit seems to have disavowed that test.

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JUDGE GREENAWAY:

This Court has never

The Government cites a

The 2nd

The Eastern District would probably

see it a little differently, no?
MR. KERR:

I assume that a fight between the

Brooklynites and the Manhattanites continues.

But nonetheless,

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1

that’s the only case that I’m aware of that applied a harmless

2

error review standard to venue errors, and this Court has

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certainly never applied such a standard.

4

what such a standard would look like.

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brought in New Jersey when the Defendant had never been to New

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Jersey and the Defendant was coming from Arkansas.

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there were a harmless error standard, this would not be a case

8

for harmless error.

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It’s not even certain

And here the case was

So even if

If I could go back to the unauthorized access issue as

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well, because of course, if the Court reverses on the grounds

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of unauthorized access, that leads to an acquittal for Mr.

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Auernheimer.

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because of the nature of the World Wide Web.

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information on the World Wide Web so that it’s available to

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anyone to access, you assume the risk that others are going to

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access that information.

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open protocol, it’s designed to allow anyone to visit the

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website and see the website.

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AT&T did not intend for individuals other than the relevant

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iPad owners to visit those addresses, but that’s a risk that

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they assumed.

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relies a lot on the idea --

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There is no unauthorized access in this case
When you put

It’s because the World Wide Web is an

It’s clear from the record that

The Government’s case for unauthorized access

JUDGE GREENAWAY:

Why is that a risk that they

assume?
MR. KERR:

It’s the nature of the World Wide Web.

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1

The World Wide Web is a publishing platform.

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making information available to the public, using that browser

3

and the address line at the top of the browser.

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JUDGE VANASKIE:

5

JUDGE GREENAWAY:

It is a way of

Is that -So under what circumstance is

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anything private on the web?

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that nothing, under any circumstances, no matter how many

8

passwords and firewalls that you put in, is anything other than

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public?

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MR. KERR:

Or are you taking the position

No, it’s absolutely a great deal of what’s

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on the World Wide Web is private, but it’s protected by a

12

password.

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you introduce some authentication mechanism that says only one

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person knows this information, your secret password only known

15

to you, and you then can access your private account

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information.

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information that was accessed.

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collected was from public website addresses --

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That’s how you create privacy on the World Wide Web,

In this case there was no private account

JUDGE VANASKIE:

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same as a password?

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MR. KERR:

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The only information that was

So is a code-based restriction the

Are they equivalent?
A password is certainly an example of a

code-based restriction, yes.
JUDGE VANASKIE:

Well, give me an example, then, of a

code-based restriction that’s not a password.
MR. KERR:

Another would be if you visit a website

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that does not -- I think a web server, for example, that does

2

not have any way of accessing the account directly.

3

actual account, no password box.

4

example, hack into the machine, find out information that has

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not been made publicly available, through any particular

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computer exploit.

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machine, rather than looking at what has been publicly made

8

available, and that is the key distinction.

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possible to create internet privacy on the World Wide Web, but

There’s no

But you may be able to, for

It’s a way of effectively breaking into the

So absolutely it’s

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it’s through some sort of an authentication mechanism, some

11

password gate or other way of keeping people out, not just

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hoping that people don’t find the address of information that

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you have posted to the public on the web.

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JUDGE CHAGARES:

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MR. KERR:

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JUDGE CHAGARES:

Thank you, counsel.

Thank you.
Lest you -- I know you -- 15 minutes

17

doesn’t seem like a lot of time, and we can’t cover everything,

18

but rest assured we poured through your briefs, so we’re well

19

aware of your positions on the other issues.

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MR. KERR:

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JUDGE CHAGARES:

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MR. MORAMARCO:

23

Thank you, Your Honor.
Okay.
Good morning, Your Honors.

Glenn

Moramarco on behalf of the Government.

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JUDGE CHAGARES:

25

MR. MORAMARCO:

Good morning.
I’m happy to begin with either venue

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1

or the CFAA, depending on the Court’s preference.

2

JUDGE CHAGARES:

3

MR. MORAMARCO:

Let’s start with venue.
Sure.

Our position, actually, is

4

that obviously what makes it a felony is part of the essential

5

elements of the offense.

6

JUDGE VANASKIE:

The notion that -So would you concede that if you

7

didn’t have the felony enhancement provision, there would be no

8

venue in New Jersey.

9

MR. MORAMARCO:

Well, we do have a fallback argument

10

about the failure to get authorization from the individuals in

11

there, but I think our strongest argument is based on the

12

felony.

13

But we do have fallback arguments as well.

But certainly, I mean, again, the implications of the

14

argument that Mr. Kerr is making are that the felony is

15

irrelevant.

16

were to blow up a nuclear power plant in New Jersey, there’d be

17

no venue in New Jersey if the guy’s pushing the buttons in

18

Arkansas.

19

what Congress sort of incorporated, but Congress incorporated

20

the notion that there be felonies, and that felonies would be

21

based on violations of State or Federal law.

22

So if you had a CFAA crime in which the objective

He says that Congress -- he wants you to look at

JUDGE CHAGARES:

Yes, but counsel, I mean, it looks

23

to me like § 1030(a)(2)(c) is -- I mean, it says a violation is

24

done when, you know, intentionally accessing information from a

25

protected computer.

Isn’t -- aren’t those the essential

14
1

elements we need to look to?

2

MR. MORAMARCO:

3

JUDGE CHAGARES:

4

Well -I mean, do we really need to resort

to something else?

5

MR. MORAMARCO:

Well, in terms of venue, it’s not --

6

For a continuing crime, venue can continue as the effects work

7

its way through.

8

would be complete when you first grab the guy.

9

carry him through seven states as part of the kidnapping, you’d

So if you had a kidnapping, the kidnapping
But if you

10

have venue in all of those states.

11

on when you have sufficient factual support for it, it really

12

is when the crime ends.

13

ongoing, and here the effect was -- and frankly, we’re talking

14

about the object of the conspiracy.

15

a circumstance, but, you know, this is the object of the

16

conspiracy.

17

the circumstance was that there had been a prior crime already

18

committed, so it wasn’t part of the money laundering, which was

19

being charged against those individuals.

20

different situation from the object of the conspiracy itself.

21

So it really doesn’t turn

And when you have effects that are

You know, he’s calling it

So to call it a mere circumstance -- in Cabrales

JUDGE VANASKIE:

That’s a very

The Gawker article that you mention

22

as a basis for saying that there’s venue in New Jersey, did it

23

identify any New Jersey residents?

24

MR. MORAMARCO:

25

not, no.

The Gawker article in particular did

And, you know, what was -- the initial distribution,

15
1

which is not being disputed here, was the distribution to the

2

reporter, and that contained the entire lists.

3

JUDGE GREENAWAY:

So if they talked to the New York

4

Times rather than Gawker, you’d say because the New York Times

5

is distributed throughout the United States, that venue is

6

proper in all 50 states?

7

MR. MORAMARCO:

Well, actually, Gawker’s location

8

wasn’t in New Jersey either, just so the record is clear.

9

We

are saying that there is jurisdiction throughout the United

10

States in this case because, not the Government chose that, but

11

he chose to have 114,000 victims.

12

chose to have victims in every state.

13

you’ve got --

So, as a matter of fact, he

14

JUDGE GREENAWAY:

15

That is the case when

Hawaii, which I wouldn’t mind, but --

16

So we could be in the District of

(Laughter)

17

MR. MORAMARCO:

We could make a motion to change

18

venue there, which, by the way, there was not in this case.

19

And I’ll get back to that when we’re discussing harmless error.

20
21

JUDGE GREENAWAY:

Granted, only the panel can go,

but –

22

JUDGE CHAGARES:

23

MR. MORAMARCO:

Yes, that’d be great.
But yeah, opposition is, just like in

24

a mail fraud.

If you have a mail fraud against one person and

25

that person is in New Jersey, then you prosecute it in New

16
1

Jersey.

2

If you have a mail fraud against 114,000 people -JUDGE CHAGARES:

Yes, but even in New Jersey, even

3

the essential elements of the conduct under New Jersey law are

4

accessing a computer and disclosing information, and neither of

5

those happened in New Jersey.

6

MR. MORAMARCO:

7

throughout the country –

8

JUDGE CHAGARES:

9

MR. MORAMARCO:

Well, the information was disclosed

10

Well --- to the extent that there was

internet, you know, there was internet application.

11

JUDGE VANASKIE:

12

JUDGE GREENAWAY:

13

JUDGE VANASKIE:

Well, wait a second, no –
I thought the key words –
I don’t understand that.

You said

14

it was disclosed throughout the country, but it was disclosed

15

to a reporter at Gawker.

16

MR. MORAMARCO:

Well, it says Gawker with the

17

intention that it be further disclosed, and to the -- you

18

know –

19
20

JUDGE VANASKIE:

There are 4,500 New Jersey residents --

21

MR. MORAMARCO:

22

JUDGE VANASKIE:

23
24
25

Well, I’m trying to understand.

Right.
-- whose e-mails were identified.

Where -- do we know any of the New Jersey residents whose -MR. MORAMARCO:

Oh, yeah.

I mean, they were -- in

the exhibits that were given to the jury, they were broken down

17
1

by state, so that’s how we --

2
3

JUDGE VANASKIE:

And -- but where did that disclosure

occur of those New --

4

MR. MORAMARCO:

That disclosure was when the

5

Defendant, Auernheimer, sent them over the internet to the

6

reporter at Gawker.

7

Gawker article and other articles, you know, talked about

8

individual people; those did not reference New Jersey people in

9

particular.

That was the initial disclosure.

10

JUDGE VANASKIE:

All right, okay.

11

MR. MORAMARCO:

The further thing.

12

JUDGE VANASKIE:

13

MR. MORAMARCO:

Then the

Okay.
I do want to discuss the harmless

14

error point, because to say it’s hornbook law that venue can’t

15

be harmless, I think is -- well, perhaps not overstating every

16

hornbook, but overstating what the Supreme Court has said.

17

Supreme Court in The United States vs. Lane and United States

18

vs. Neder has said that Rule 52(a) admits of no exceptions.

19

The exceptions they have recognized are for structural error,

20

and no Court has ever held that venue is structural error.

21

Certainly the Supreme Court has not held that it’s structural

22

error.

23

JUDGE GREENAWAY:

The

So then let me ask you this

24

question on that point.

So if we found that there was a venue

25

defect here, you argue harmless error.

18
1

MR. MORAMARCO:

2

JUDGE GREENAWAY:

3

Yes.
Right, you want to prevail.

When

would you not prevail?

4

MR. MORAMARCO:

5

JUDGE GREENAWAY:

Well -What circumstance could there be

6

when there would be a venue defect that you would not

7

prevail –

8

MR. MORAMARCO:

9

JUDGE GREENAWAY:

10

Sure.

MR. MORAMARCO:

-- on a harmless error analysis?
There definitely would be

11

circumstances, Your Honor.

12

individual didn’t have access to the witnesses that he wanted

13

because it was an inconvenient forum.

14

the counsel of his choice because it was an inconvenient forum.

15

I do think it’s crucial here that there was no --

16
17
18
19
20
21
22
23

JUDGE GREENAWAY:

There would be cases in which the

stage.

He might not have had

No, no, no, but I mean at this

I mean, those are arguments that -MR. MORAMARCO:

Right, at this stage.

If he said,

you know -JUDGE GREENAWAY:

-- no, those are arguments you make

at the beginning.
MR. MORAMARCO:

-- if we had been in Arkansas, I

would have called these three --

24

JUDGE CHAGARES:

25

JUDGE GREENAWAY:

Hold on, counsel, let –
No, one second.

19
1

MR. MORAMARCO:

2

JUDGE CHAGARES:

3

I’m sorry.

JUDGE GREENAWAY:

-- let Judge Greenaway speak.
Those are arguments that you would

4

make, right, at the beginning.

5

case that I can remember, “Oh, no, we shouldn’t be in New York,

6

we should be wherever, because, you know, nine million people

7

are there and nobody is here and” yada yada, right.

8

talking about at this stage, right.

9

MR. MORAMARCO:

10

At the beginning of every civil

But I’m

We’ve already had a trial.

Right.

JUDGE GREENAWAY:

Presumably after you make your

11

argument, you’re going to want me to ask him, “Well, what’s the

12

prejudice if I apply a harmless error analysis,” which I’m

13

prepared to do in a moment.

14

you what’s the circumstance where, after we’ve had a trial and

15

there is a difficulty, as you would presume, showing prejudice,

16

when would I not apply harmless error?

17

MR. MORAMARCO:

But for right now, I want to ask

Well, perhaps I’m missing the point,

18

but I would have thought it would have been those same

19

questions, that it would have been -- if he could stand up

20

before Your Honor and say we weren’t in Arkansas and if we had

21

been in Arkansas I would have called these three witnesses who

22

were not available to me because they wouldn’t go to New

23

Jersey, or I would have had a different counsel.

24

this case what the record reflects is that he had pro bono

25

counsel which very generously -- you know, right outside of New

I mean, in

20
1

Jersey, right outside of Newark, across in New York, made their

2

services available to him for free, so --

3

JUDGE VANASKIE:

But we’re dealing with a -- we’re

4

dealing with a concept that’s embedded in the Constitution in

5

two places, in our Bill of Rights and in the Constitution

6

itself.

7

MR. MORAMARCO:

8

JUDGE VANASKIE:

9
10

Well --

And has the Supreme Court said that

it’s -- has the Supreme Court ever said that venue is not a
structural problem?

11
12

Sure.

MR. MORAMARCO:

No, it has not said anything about

venue being structural or not structural.

13

JUDGE VANASKIE:

14

MR. MORAMARCO:

Not said one way or another, okay.
But certainly it’s late in the day

15

for -- the Supreme Court has often held that Constitutional

16

violations are subject to harmless error analysis; we do that

17

every day.

18

error are things that really go to the integrity of the trial,

19

so they’ve looked at a biased tribunal, they’ve looked at a

20

failure to have counsel, or a failure to have self-

21

representation.

22

is the issue that they were dealing with, I believe, in Lane.

23

You know, it’s a circumstance -- you shouldn’t have tried that

24

count there.

25

joined together for trial, but the Court held that that was

What they’re looking for in terms of structural

To me, this is more like a misjoinder, which

It was in -- you know, they shouldn’t have been

21
1

harmless error, and it reversed the 2nd Circuit which had said

2

that these kinds of errors are not subject to harmless error

3

analysis, and that was the case where the Court really said

4

there are no bright line rules here.

5

categories of structural error which have already been --

6

already been suggested.

7

forum for Mr. Auernheimer because of the -- because he had

8

such –

9
10
11

Again, leaving aside the

I would suggest this is a favorable

JUDGE CHAGARES:

I don’t think he’d argue that right

now.
(Laughter)

12

MR. MORAMARCO:

Well, again, when you do harmless

13

error analysis, you do it on the basis of, in fact, the

14

strength of the evidence.

15

it very differently from our two respective corners here.

16

see a case where he’s arguing that this was completely open to

17

everyone.

18

the steps he had to take in order to get to this wide open, you

19

know, web, and I’m flabbergasted that this could be called

20

anything other than a hack.

21

the entire IOS system on his computer.

22

He had to do all sorts of things I don’t even understand what

23

they are, and certainly are beyond the ken of, you know,

24

ordinary web users.

25

notion is that it’s, you know, it’s searchable; you can get

And we have a case here where we see
I

But you look at the testimony of Daniel Spitler and

He had to -- he had to download
He had to decrypt it.

When you publish something to the web, the

22
1

there.

This was really a members only site.

2

where you had to -- it asked -- it basically asked two

3

questions:

4

are you?

are you an iPad, and if you’re an iPad, which iPad
That’s the ICC ID address, and that was the --

5

JUDGE CHAGARES:

6

MR. MORAMARCO:

7

JUDGE CHAGARES:

8
9

This was a site

Well, you’ve artfully moved from -Okay.
-- from venue.

I want to -- I want

to know about your -JUDGE GREENAWAY:

10

JUDGE CHAGARES:

11

We’re bringing you back.

Jersey law doesn’t apply.

12

MR. MORAMARCO:

-- alternative argument, if New

Well, if New Jersey law doesn’t

13

apply, then we have to go with his failure to obtain

14

authorization from the victims in New Jersey.

15

JUDGE CHAGARES:

16

MR. MORAMARCO:

That’s our --

And that’s effects, right?
Yeah, that’s effects, too.

And

17

again, even in the cases that he cites, you know, there is

18

recognition that effects matter in some cases.

19

know, this is an area where if you don’t go the harmless error

20

route, you really are probably going to have to write some new

21

law, because there really isn’t a ton on venue under the CFAA.

22

JUDGE CHAGARES: Right.

23

MR. MORAMARCO:

I mean, you

So, you know, he’s trying to

24

analogize it to certain things; I’m trying to analogize it to

25

certain other things.

But if we really take a step back and

23
1

think about computer crimes, I would really urge the Court not

2

to go narrow on computer crimes, because when the founding

3

fathers were talking about, you know, trying a crime where it

4

occurred, you didn’t have things like the internet, obviously,

5

you didn’t have -- I mean, crimes occurred, you know.

6

got, you know -- typically crimes occur, you know, right there.

7

JUDGE GREENAWAY:

You’ve

But if we went broadly, as you

8

suggest, that would mean in every computer crime, in every

9

Court in America, it would always be 50 states.

10

MR. MORAMARCO:

Well, not if you had a targeted crime

11

that involved individual victims.

12

Auernheimer wanted to sort of get your personal identifying

13

information, you know, and he was trying to target you, then we

14

couldn’t try that in Arkansas -- well, if you did it in

15

Arkansas, but we couldn’t try that in Hawaii if you were the

16

only victim of the offense.

17

trying to adopt a rule that doesn’t really work very well when

18

the felony enhancement is a serious one where the effects are

19

important.

20

JUDGE GREENAWAY:

I mean, again, if Mr.

And I think the problem is he’s

Well, one -- since you’ve mentioned

21

felony enhancement, I’m still not clear as to how you get

22

around Rodriguez-Moreno and Cabrales.

23

mentioned in a footnote, and you spent most of your time on

24

Rodriguez-Moreno.

25

I know Cabrales you

I’m not getting that.

JUDGE CHAGARES:

And Goldberg.

24
1

JUDGE VANASKIE:

2

MR. MORAMARCO:

Right, right, sorry.
Well, I don’t think Rodriguez-Moreno

3

is a bad case for me.

I think that when you take a step back

4

and you look at it, what it’s saying is, again, it came up

5

through this Circuit where this Circuit had held the opposite,

6

and Judge Alito sort of dissented and said you can’t just look

7

at the verbs, you’ve got to look at the crime in total.

8

they have really -- there were two parts to that crime, just

9

like there are two parts here.

And so

You had the using and carrying

10

of a firearm, and you had the -- you know, in furtherance of a

11

kidnapping.

12

computer in furtherance of the New Jersey crime, and you put

13

them together.

14

And what you have here is, you know, use of a

-

JUDGE GREENAWAY:

Yes, but here you’re relying on the

15

violation of the New Jersey crime.

16

- the key is felony enhancement.

17

MR. MORAMARCO:

In Rodriguez-Moreno, it’s How are those meshing?

Well, you have to -- again, in

18

Rodriguez-Moreno, it would have been very easy for the Court to

19

have said, as Justice Scalia said in dissent, that you’re being

20

charged with using a firearm during and relation to a crime --

21

to a kidnapping where everyone concedes that he didn’t have a

22

gun in New Jersey.

23

because when you looked at the crime overall, kidnapping was a

24

part of it, and it was an important part of it.

25

though nothing in New Jersey happened related to that gun, and

But it was okay to charge it in New Jersey,

But even

25
1

he was charged with during and relation, that was enough to

2

bring it in.

3

the violation of New Jersey law is enough to make this strong.

4

So what I’m suggesting here is that bringing in

But let me get a little bit to -- because I haven’t really

5

discussed the substantial contacts test, which this Court did

6

at least --

7

JUDGE CHAGARES:

8

MR. MORAMARCO:

9

JUDGE CHAGARES:

10

that case?

11

That’s Goldberg, right?
Yes.
Now did we really adopt that test in

I mean, there’s a quotation there.

adopt anywhere.

12

MR. MORAMARCO:

13

JUDGE CHAGARES:

14
15

I don’t see

Well -And we’ve -- and, as far as I know,

we haven’t followed Goldberg in any other case.
MR. MORAMARCO:

Well, fair enough, in the sense that

16

it is a quotation and that’s the only place, though, where the

17

Court sets out what the standard would be.

18

you quote another Court’s standard, if you’re disagreeing with

19

it you’ll say, and if you’re not disagreeing with it, you’re

20

probably agreeing that at least it –

21

JUDGE CHAGARES:

22

MR. MORAMARCO:

So typically when

All right.
-- works in this case.

So that’s

23

where that came from.

Importantly, in Rodriguez-Moreno, the

24

Government argued a substantial contacts argument, and they

25

said in footnote two that they were leaving that open, they

26
1

were not reaching that question; they didn’t need to because

2

they were doing it under the locus delicti --

3

JUDGE CHAGARES:

4

MR. MORAMARCO:

Right.
-- which is very narrow.

But the

5

fact that the Court left it open, it surprised me that some of

6

the cases seem now to be suggesting that you automatically

7

lose, you know, under substantial contacts, because the Supreme

8

Court didn’t adopt it in Rodriguez-Moreno, and I think that’s

9

an overread.

10

And I think even the cases that he relies on, some of

11

those are quite good for us.

12

Circuit, which he cites in his reply brief, I mean, that’s a

13

case where the effects are felt in another District and the

14

Court said fine.

15

deposition was given in one jurisdiction, and the obstruction

16

would have been in -- it was given in D.C., the obstruction

17

would have been in a Maryland tribunal, and the Court said

18

fine, the effects there should be felt.

19

this Court to look at effects, because victims do matter.

20

The Oceanpro case out of the 4th

It was obstruction of justice, and the

And so I would urge

It doesn’t really matter where the server is located.

I

21

mean, if we’re going that route, I mean, again, the law ought

22

to make some sense.

23

hits the “send” button, you know, there he’s doing some

24

contact.

25

It’s one thing to say, obviously where he

JUDGE GREENAWAY:

Well, if the law is supposed to

27
1

make sense, I mean, it is obtaining and accessing, right,

2

that’s what we’re supposed to be focused on.

3

MR. MORAMARCO:

Yeah, but it’s identity fraud, too.

4

And so how do you obtain somebody’s identity?

5

sort of a very --

6
7

JUDGE GREENAWAY:

Sure, but you want to think about

what are the means employed, how did you go about it.

8
9

I mean, it’s

MR. MORAMARCO:
Judge Greenaway.

I want to think about the harms,

That’s what I want to think about.

Who is

10

harmed by this, and isn’t that what makes it a crime?

11

makes it a crime is there’s somebody, you know, sitting home in

12

New Jersey, you know, whose identity has been taken by this

13

individual, and he didn’t have to take 114,000 of them if he

14

didn’t want to be subject to nationwide.

15
16

JUDGE GREENAWAY:

It would have been very easy for

them --

17

JUDGE CHAGARES:

18

JUDGE GREENAWAY:

19

What

But --- to say that in Cabrales and

Rodriguez-Moreno if that’s what they meant.

20

MR. MORAMARCO:

21

the locus delicti alone was enough.

22

open.

23

go the harmless error route.

24

on that.

25

They didn’t need to reach it because
The Court has left it

It may be an issue that you have to reach if you don’t

JUDGE CHAGARES:

I would urge you to think broadly

All right, thank you, counsel.

28
1

MR. MORAMARCO:

2

MR. KERR:

Thank you.

On rebuttal, I’d like to make just two

3

points about harmless error.

First, the Government says that

4

Rule 52 should apply and the harmless error standard there.

5

The difficulty is that venue is a statutory standard in

6

addition to a rule-based standard.

7

three different sources, the Constitution, the statutes, and

8

the Federal Rules.

9

standards of review for the Federal Rules does not address

10

whether there is a harmless error standard for the statute

11

3237.

12

why there is no harmless error standard.

So the venue law comes from

The fact that there are harmless error

13

This case is being brought under the statute and that’s

In terms of the question of prejudice, which Judge

14

Greenaway mentioned, there are several types of prejudice here

15

if the Court does reach a harmless error standard.

16

there are computer crime units in all of the major U.S.

17

Attorneys’ offices right now, and to be candid, they are

18

looking for cases.

19

And if the standard --

JUDGE GREENAWAY:

20

One is that

You want to help Atlanta?

What –

(Laughter)

21

MR. KERR:

If the standard is that any district can

22

bring a case, then any individual defendant doesn’t only have

23

to get a denial in one district or two districts or four

24

districts, but any prosecutor in any district can bring the

25

case.

And as revealed by the fact that Mr. Auernheimer is

29
1

serving 41 months in prison right now, clearly he has felt

2

prejudiced with the prosecution of this case.

3
4
5

I also wanted to address the issue of -- the Government
says that the -JUDGE CHAGARES:

6

should be aware of?

7

MR. KERR:

Is there any other prejudice we

It’s sort of a metaphysical question, I

8

think, as to how the case would have gone in a district where

9

there was venue.

It’s not clear even what that means.

10

was certainly challenged below.

11

no motion to transfer venue.

12

a lack of venue.

13

Venue

challenged when this case was brought.

14
15
16

The Government says there was

There was a motion to dismiss for

It was, in fact, the first issue that was

JUDGE GREENAWAY:

I’m not getting you on I’m

prejudiced then.
MR. KERR:

So the fact that he was prosecuted is one

17

form of prejudice.

If this case could only be prosecuted in

18

some districts, in certain districts, that means that only

19

several U.S. Attorneys’ offices can bring the case.

20

venue can be brought in any district, then every U.S.

21

Attorney’s office has the opportunity to determine, do we want

22

to bring a prosecution in this particular case.

23

addition to we just don’t know how the case would have gone if

24

it had been brought in Arkansas where the Defendant was

25

located, what resources he would have been able to bring to the

And if

And that’s in

30
1

case.

There’s no record on that question.

2

reasons why, I think, there is no harmless error standard for

3

venue error --

4
5

JUDGE VANASKIE:

MR. KERR:

Absolutely.

JUDGE VANASKIE:

You said we don’t -- we shouldn’t be

tried here.

10

MR. KERR:

11

JUDGE VANASKIE:

12

Yeah, it was raised

initially, it was raised -- that was the first --

8
9

And shouldn’t it be enough that you

raised venue initially in -- I mean, that’s your prejudice.

6
7

It’s one of the

That’s right.

And it was the first --

The case should have never been

brought here.

13

MR. KERR:

That’s absolutely correct, the first issue

14

raised in this case.

The Government also says that under

15

Rodriguez-Moreno, it’s left open whether there is an effects

16

test.

I think that’s a misreading of the Rodriguez-Moreno

17

case.

That case leaves open that there may be another

18

possibility of a statutory standard, that is, other venue

19

statutes may allow an effects test.

20

conduct element written into the statute that is phrased in

21

terms of an effect, then that can be considered under the

22

statute.

23

such a test, but there is not under § 3237, which specifies the

24

essential conduct elements under the Cabrales case.

25

are no further questions.

So if there’s an essential

So it’s possible in other cases that there would be

If there

31
1

JUDGE CHAGARES:

2

MR. KERR:

3

Thank you, counsel.

JUDGE CHAGARES:

Thank you, Your Honor.
Counsel, thank you so much for your

4

excellent briefing and excellent argument.

5

under advisement.

6

We’ll take the case

(Court adjourned)

7
8
9
10
11
12
13
14
15
16
17
18

CERTIFICATION
I certify that the foregoing is a correct transcript from the
electronic sound recording of the proceedings in the aboveentitled matter.
4/4/14
___________________________
Signature of Transcriber

__________
Date

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
UNITED STATES OF AMERICA,
Third Circuit No. 13-1816
Appellee,
CERTIFICATION OF COUSEL
v.
ANDREW AUERNHEIMER,
a/k/a WEEV,
a/k/a WEELOS,
a/k/a ESCHER,
Appellant.
Following review of the transcript by all parties, including counsel for the
government, I hereby certify on behalf of all parties that the foregoing transcript is
accurate.
Dated this 7th day of April, 2014.
Respectfully submitted,
/s/ Hanni M. Fakhoury
Hanni M. Fakhoury
ELECTRONIC
FRONTIER FOUNDATION
815 Eddy Street
San Francisco, CA 94109
Counsel for DefendantAppellant Andrew Auernheimer

1

CERTIFICATE OF SERVICE
I hereby certify that I electronically filed the foregoing with the Clerk of the
Court for the United States Court of Appeals for the Third Circuit by using the
appellate CM/ECF system on April 7, 2014.
I certify that all participants in the case are registered CM/ECF users and
that service will be accomplished by the appellate CM/ECF system.
Dated: April 7, 2014

By: /s/ Hanni M. Fakhoury__
Hanni M. Fakhoury
ELECTRONIC
FRONTIER FOUNDATION
Counsel for DefendantAppellant Andrew Auernheimer

2