US v. Kelly Wadford, Jr.

Filing 920090610

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-4423

UNITED STATES OF AMERICA, Plaintiff ­ Appellee, v. KELLY EDWARD WADFORD, JR., Defendant ­ Appellant.

Appeal from the United States District Court for the District of South Carolina, at Charleston. Patrick Michael Duffy, District Judge. (2:06-cr-01294-PMD-1)

Argued:

March 26, 2009

Decided:

June 10, 2009

Before WILKINSON and SHEDD, Circuit Judges, and David A. FABER, Senior United States District Judge for the Southern District of West Virginia, sitting by designation.

Affirmed in part, vacated in part, and remanded by unpublished opinion. Judge Shedd wrote the opinion, in which Judge Wilkinson and Senior Judge Faber joined.

ARGUED: David Bruce Betts, Columbia, South Carolina, for Appellant. Eric John Klumb, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, South Carolina, for Appellee. ON BRIEF: W. Walter Wilkins, United States Attorney, Columbia, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

SHEDD, Circuit Judge: The United States filed an eleven-count superseding

indictment against Kelly Wadford Jr., charging him with a number of federal offenses. The indictment included charges that

Wadford slipped a date rape drug into a co-worker's drink while they were on of an her interstate partially business naked. trip The and then took

photographs

indictment

further

alleged that Wadford unlawfully accessed protected computers and sent false, fraudulent, and threatening e-mails in interstate or foreign commerce to co-workers and attached copies of the

photographs. federal jury

Wadford pled guilty to two of the counts, and a found him guilty of the remaining nine counts.

Wadford now appeals, challenging the sufficiency of the evidence with respect to Counts One through Seven of the indictment. For

the following reasons, we affirm in part, vacate in part, and remand for further proceedings.

I Viewing the evidence in the light most favorable to the government, (1942), the see Glasser v. at United trial States, 315 U.S. 60, 80

evidence

establishes

the

following.

Wadford worked in South Carolina as a manager of Pumps America, a company which distributed electric water pumps throughout the United States. Pumps America is a subsidiary of Leader Pumps, 2

an Italian manufacturer of electric water pumps. employees used the company's computers in South

Pumps America Carolina to

communicate with employees located in Italy, and employees in Italy used the company's computers to access electronic

information stored in South Carolina. In January 2005, Wadford hired a woman (hereinafter, the "co-worker") as a sales representative for Pumps America. March 2005, Wadford purchased approximately 250 tablets In of

Rohypnol from a pharmacy in Brazil. in the United States, is a

Rohypnol, which is illegal brand name for the drug

flunitrazepam. been secretly

It is known as a "date rape drug" because it has given to individuals to facilitate sexual

assaults. 1 On April 11, 2005, Wadford and the co-worker left South Carolina by car on a multi-day interstate sales trip. Wadford

selected the customers they would visit ahead of time, and he brought one or more Rohypnol tablets with him. The next day,

after meeting with a customer in Ohio, Wadford and the co-worker stopped for gas, and he offered to get her a drink. Wadford

went into a store and returned with a fountain soda for her.

Flunitrazepam is a strong central nervous depressant which causes extreme sleepiness and amnesia. water-soluble, tasteless, and odorless.

1

system It is

3

Wadford put flunitrazepam in her drink without her knowledge. She consumed the drink and shortly thereafter became nauseated. When they arrived at a hotel later that day, Wadford

checked them into separate rooms and then helped the co-worker into her room. next morning. The next thing she remembered is waking up the Unbeknownst to her, Wadford had entered her hotel

room during the night and had taken photographs of her naked from the waist down. Over a year later, in May 2006, someone sent an anonymous e-mail to Pumps America's parent company in Italy, complaining that Wadford an was sexually harassing employees. and began The company

initiated

internal

investigation

interviewing

employees about the allegations.

The co-worker and her fellow

employees, Mary Brown and Vicki Hilderbrand, were among those interviewed. Wadford was fired sometime in June 2006.

During May and June 2006, Wadford accessed the work e-mail accounts of Hilderbrand and Brown and sent a series of

unauthorized e-mails under their names in an effort to disguise his identity. In the e-mails, Wadford sent copies of the

photographs and threatened Pumps America employees in an effort to get them to retract allegations about him so he could retain or get his job back. relevant to this appeal. Three of the e-mails are particularly

4

On May 20, Wadford sent an e-mail from Hilderbrand's work e-mail account to Brown's work e-mail account, and it contained the following text: "Mary, If you care about the long term

future of your grandkids you should tell the truth and resign from the company." J.A. 661-62. It was signed "Vicki." Id.

The government introduced the expanded header information for this e-mail into evidence. 2 The expanded header included data When

about the route the e-mail took from sender to recipient.

coupled with other evidence presented at trial, including the expert testimony of an FBI computer forensic examiner, the

header information shows that the e-mail was sent from Wadford's home in South Carolina and travelled through a Leader Pumps

server located in Italy before it was received by Brown back in South Carolina. This e-mail serves as the basis for Count Five

of the indictment. On June 20, Wadford sent an e-mail from Hilderbrand's work e-mail account to her personal e-mail account, which ended in "@aol.com." This e-mail contained the following text: "If you

wish to ensure the long term welfare of evryone [sic] close to E-mails usually display partial header information which reveals the basic to/from information, the date, and the subject line of the e-mail. However, users can access an e-mail's extended header information which contains additional information, such as the Internet Protocol addresses associated with the sender and recipient and information about the servers that processed the e-mail.
2

5

you, you should consider telling the truth and resign from your position," J.A. 664, and it serves as the basis for Count Six. Like the e-mail underlying Count Five, the government introduced the expanded header information for this e-mail. The evidence

indicates that Wadford sent this e-mail from his home in South Carolina and that Hilderbrand received it in South Carolina. Unlike the Count Five e-mail, however, this one did not pass through the company's server in Italy because Wadford sent it to Hilderbrand's personal e-mail account. Instead, the e-mail

passed through servers owned or operated by various companies, including America Online ("AOL"). 3 information through appears the to contain While the expanded header about the the AOL servers did not

data

which

e-mail

passed,

government

introduce any evidence regarding the location of those servers or the specific route this e-mail travelled. computer forensic examiner testified that The government's the Internet is

basically a group of computers and servers acting together, but the government did not ask, and the expert did not offer, any opinion on whether an e-mail sent from South Carolina to an

AOL provides a number of online communications tools, such as e-mail, news groups, and chat rooms, that allow its subscribers to communicate with one another and with other users over the Internet.

3

6

"@aol.com" address which was received in South Carolina could or would travel outside the state. Also on June 20, Wadford sent an e-mail from Brown's work e-mail account to Hilderbrand's work e-mail account and from there forwarded the e-mail to the co-worker's work e-mail

account.

Wadford attached three photographs he took of the co-

worker during their April 2005 sales trip showing her naked from the waist down. are 137 more The e-mail contained the following text: "there these but better. To prevent widespread

like

distribution, you need to contact the one you have wronged." J.A. 659-60. It was signed "Vicki." Id. The expanded header

information and other evidence in the record establishes that Wadford sent this e-mail from his home in South Carolina and it travelled through a company server in Italy before being

received by the co-worker back in South Carolina. serves as the basis for Count Seven.

This e-mail

As noted, the government filed an eleven-count superseding indictment against Wadford. 4 After he pled guilty to two firearm

After the grand jury returned an eight-count indictment against Wadford, he was released on bond pending trial. Approximately two weeks later, a police officer on patrol spotted Wadford on the same street where the co-worker lived. Wadford was wearing a black mask, a hooded sweatshirt, and gloves. He was also carrying a backpack. When the officer stopped Wadford and examined the contents of his backpack, the officer found a handgun with the safety off and a bullet in the chamber. The officer also found Rohypnol tablets in Wadford's (Continued) 7

4

possession

counts,

a

federal

jury

found

him

guilty

of

the

remaining nine counts.

At the close of the government's case,

Wadford moved for a judgment of acquittal under Fed.R.Crim.P. 29 based on insufficiency of the evidence, and he renewed the

motion at the close of all evidence and after the jury returned its verdict. The district court denied Wadford's motions and This

sentenced him to a total term of 180 months imprisonment. appeal followed.

II Wadford argues that the district court erred by denying his Rule 29 motion. his convictions of the In particular, he argues that we should vacate on Counts One through in Seven those because counts certain are not

elements

offenses

charged

supported by substantial evidence. We review the district court's decision to deny a Rule 29 motion for judgment of acquittal de novo. Gallimore, 247 F.3d 134, 136 (4th Cir. 2001). United States v. Where, as here,

car, which was parked nearby. The government then filed the superseding indictment, which included three additional charges based on Wadford's post-indictment conduct: possession of a firearm by a felon in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), 924(e), and 3147(1); attempted witness tampering in violation of 18 U.S.C. §§ 1512(a)(2)(A) and 3147(1); and carrying a firearm during and in relation to his attempt to tamper with a witness in violation of 18 U.S.C. § 924(c)(1).

8

the motion was based on a claim of insufficient evidence, "[t]he verdict of a jury must be sustained if there is substantial evidence, taking the view most favorable to the Government, to support it." evidence Glasser, 315 U.S. at 80. "a reasonable finder of Substantial evidence is fact could accept as

which

adequate and sufficient to support a conclusion of a defendant's guilt beyond a reasonable doubt." United States v. Burgos, 94 In evaluating the

F.3d 849, 862 (4th Cir. 1996) (en banc).

sufficiency of the evidence, we do not review the credibility of the witnesses, and in we assume that in the favor jury of resolved all

contradictions

the

testimony

the

government. In

United States v. Sun, 278 F.3d 302, 313 (4th Cir. 2002).

addition, we consider circumstantial and direct evidence, and allow the government the benefit of all reasonable inferences. United States v. Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982). A. In Count One, the government charged Wadford with attempted computer 1030(b). that fraud in violation of 18 U.S.C. §§ 1030(a)(4) and

As an element of the offense, the government must show accessed or attempted to access a "protected

Wadford

computer," 18 U.S.C. § 1030(a)(4), which includes a computer "used in or affecting interstate or foreign commerce or

communication," id. § 1030(e)(2)(B).

9

Wadford argues that his conviction on Count One should be vacated because there is no evidence that the computers in

question were "protected computers."

We disagree.

The evidence

adduced at trial indicates that the company's computers were used by employees in Italy in and South that Carolina employees to in communicate Italy used with the

employees

computers to access electronic data stored in South Carolina. Viewing this evidence in the light most favorable to the

government, we conclude that substantial evidence supports the jury's verdict because the computers were used in foreign

communication.

See, e.g., Cable & Wireless P.L.C. v. FCC, 166

F.3d 1224, 1231 (D.C. Cir. 1999) (recognizing that Congress has defined the phrase "foreign communication" as a "`communication or transmission from or to any place in the United States to or from a foreign country'"). 5 B. In Count Three, the government charged Wadford with

attempted possession of flunitrazepam with intent to distribute it in violation of 21 U.S.C §§ 841(a)(1), 841(b)(1)(D), and 846.

Wadford also argues that the jury's verdict on Count Two, which alleged aggravated identity theft in violation of 18 U.S.C. § 1028A(a)(1) could not be sustained because it was dependent upon a valid finding of guilt on Count One. Because we reject Wadford's argument regarding Count One, we find that his argument regarding Count Two is also without merit.

5

10

Wadford argues that his conviction under Count Three should be vacated because there is no evidence that he intended to

distribute the flunitrazepam. the light most that favorable Wadford to

However, viewing the evidence in the government, approximately including 250 the

evidence

purchased

tablets

containing flunitrazepam before his April 2005 trip with the coworker, brought one or more of the tablets with him on the trip, and then placed the drug in her this drink, element we of conclude the that

substantial offense.

evidence

supports

charged

C. In Count Four, the government charged Wadford with

violating the Mann Act, 18 U.S.C. § 2422(a), which generally prohibits a person from coercing or inducing another to travel in interstate commerce to engage in unlawful sexual activity. Wadford argues that the evidence is insufficient to support a finding that he induced the co-worker to travel in interstate commerce to engage in unlawful sexual activity. Specifically,

he argues that the evidence shows that they left South Carolina on a legitimate business trip and, at most, he drugged and

photographed the co-worker entirely within Ohio.

We disagree.

To establish a violation of the Mann Act, the government does not need to establish that an unlawful purpose was the sole factor motivating Wadford's interstate travel. 11 Some courts have

sustained Mann Act convictions where the unlawful purpose was simply one of the purposes motivating the interstate travel

while other courts have required the unlawful purpose to be the dominant purpose. See, e.g., United States v. Vang, 128 F.3d The evidence in this case tends to

1065, 1071 (7th Cir. 1997).

prove that Wadford purchased the flunitrazepam approximately two months after he hired the co-worker and one month before he went on the April 2005 interstate trip with her. The evidence also

indicates that Wadford decided where they would travel on their trip, took one or more tablets containing flunitrazepam with him on the trip, slipped the drug into her drink, and then took photographs of her naked while she was under the influence of the drug. Viewed in the light most favorable to the government,

we conclude that substantial evidence supports a finding that an unlawful purpose was not only one of the purposes motivating Wadford's interstate travel but a dominant purpose. D. In Counts Five, Six, and Seven, the government charged

Wadford with sending three threatening e-mails in violation of 18 U.S.C. §§ 875(b) and (d). Wadford argues that substantial

evidence does not support a finding that the e-mails underlying these counts were transmitted in either interstate or foreign commerce as required by §§ 875(b) and (d). As set forth below,

12

we find that substantial evidence supports the jury's verdict with respect to Counts Five and Seven, but not Count Six. A conviction under either §§ 875(b) or (d) requires the government to prove that the threatening communication was

transmitted "in interstate or foreign commerce." 875(b) (emphasis added); id. § 875(d).

18 U.S.C. §

The emphasized language

is important because "Congress uses different modifiers to the word `commerce' in the design and enactment of its statutes." Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 115 (2001). For example, "[t]he to phrase regulate `affecting to the commerce' outer Id. limits indicates of its

Congress'

intent

authority under the Commerce Clause."

In contrast, the

words in commerce are "understood to have a more limited reach." Id. Courts have repeatedly that the held that the in commerce cross a

formulation

requires

communication

actually

state or national border.

See, e.g., United States v. Lewis,

554 F.3d 208, 212-14 (1st Cir. 2009); United States v. Schaefer, 501 F.3d 1197, 1200-02 (10th Cir. 2007); Smith v. Ayres, 845 F.2d 1360, 1366 (5th Cir. 1988). Consistent with these cases,

we find that §§ 875(b) and (d) require as an element of the offenses border. that the communication cross a state or national

This element can be established by either direct or

circumstantial evidence.

13

With respect to the e-mail Wadford sent to Brown's work email address and the e-mail he sent to Hilderbrand's and the coworker's work e-mail addresses ­ i.e., those underlying Counts Five and Seven ­ we find that substantial evidence supports a finding that they were transmitted in interstate or foreign

commerce. mails servers were

As noted above, the evidence indicates that these esent from in South Carolina they and were travelled received through by these

located

Italy

before

employees back in South Carolina. We reach a different conclusion with respect to the e-mail underlying Count Six ­ the e-mail Wadford sent to Hilderbrand's personal evidence "@aol.com" does not e-mail support a address finding ­ because this substantial e-mail was

that

transmitted in interstate or foreign commerce.

The government

concedes that there is no direct evidence on this point, and we discern no circumstantial evidence in this record which would allow a reasonable juror to infer that the e-mail crossed a state or national border. 6 Therefore, we agree with Wadford that

his conviction on Count Six must be vacated. 7

We recognize that other courts have found that e-mails sent to an "@aol.com" address always pass through AOL servers located in Virginia before arriving at their final destination. See, e.g., Jaynes v. Commonwealth, 666 S.E.2d 303, 307 (Va. 2008). However, the government acknowledges that the record in this case is silent on the location of AOL's servers. Moreover, the government asserted at oral argument that it would not be (Continued) 14

6

III For the foregoing reasons, we affirm the district court in part, vacate in part, and remand for further proceedings

consistent with this opinion. AFFIRMED IN PART, VACATED IN PART, AND REMANDED

appropriate to take located in Virginia.
7

judicial

notice

that

AOL's

servers

are

It appears that vacating Wadford's conviction on Count Six will not alter his length of imprisonment. The district court sentenced Wadford to a 70-month prison term on Count Six, but this term was to run concurrently with at least one other 70month prison term.

15