US v. Brian Rich

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:12-cr-00369-RJC-3. Copies to all parties and the district court. [999630086]. [14-4774]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-4774

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BRIAN MATTHEW RICH,
Defendant - Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.
Robert J. Conrad,
Jr., District Judge. (3:12-cr-00369-RJC-3)

Submitted:

June 30, 2015

Decided:

July 29, 2015

Before NIEMEYER, DUNCAN, and AGEE, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Ross Hall Richardson, Executive Director, Joshua B. Carpenter,
FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Asheville,
North Carolina, for Appellant.
Jill Westmoreland Rose, Acting
United States Attorney, Anthony J. Enright, Assistant United
States Attorney, Charlotte, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Brian Matthew Rich appeals his conviction for conspiracy to
violate the Computer Fraud and Abuse Act (“CFAA”), 18 U.S.C.
§ 1030 (2012).

Pursuant

to

a

conditional

guilty

plea,

Rich

challenges the district court’s denial of his motion to dismiss
the indictment for failure to state an offense.

We affirm.

“Where, as here, a district court’s denial of a motion to
dismiss an indictment depends solely on a question of law, we
review the district court’s ruling de novo.”
Bridges,

741

F.3d

464,

467

(4th

Cir.

United States v.

2014).

A

federal

indictment must contain the elements of the offense charged,
fairly

inform

defendant

to

the

defendant

plead

double

of

the

jeopardy

prosecutions for the same offense.

charge,
as

a

and

defense

enable
to

the

future

United States v. Resendiz–

Ponce, 549 U.S. 102, 108 (2007); see Fed. R. Crim. P. 7(c)(1).
Rich’s sole challenge to the indictment is that it failed to
allege

that

LendingTree’s

the

conspirators

network.

With

lacked
respect

authorization
to

this

to

access

element,

the

indictment was required to allege that the conspirators agreed
to either access a protected computer without authorization or
exceed authorized access.

See United States v. Moussaoui, 591

F.3d 263, 296 (4th Cir. 2010) (stating elements of conspiracy);
18 U.S.C. § 1030(a)(2)(C) (stating requirements of CFAA).

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Rich argues that the factual summary accompanying his plea
agreement indicates that the conspirators accessed LendingTree’s
network solely through administrator log-in credentials validly
possessed by a coconspirator, and that such “password sharing”
does not violate the CFAA.
Miller,

687

F.3d

199,

See WEC Carolina Energy Sols. LLP v.
206

(4th

Cir.

2012)

(holding

CFAA

criminalizes obtaining or altering information individual lacked
authorization

to

obtain

or

alter).

We

cannot

consider

this

factual summary in reviewing the denial of a motion to dismiss,
but

must

instead

constrain

contained in the indictment”

our

review

“to

the

allegations

United States v. Engle, 676 F.3d

405, 415 (4th Cir. 2012). ∗
We decline to reach Rich’s argument regarding the scope of
the

CFAA

because

interpretation

is

state an offense.

even

assuming,

correct,

the

per

arguendo,

indictment

was

that

Rich’s

sufficient

to

The indictment alleges that the conspirators

“accessed without authorization and exceeded authorized access
to one or more LendingTree Network protected computers . . .
through the use of compromised LendingTree administrator log-in

∗

The Government claims that Rich’s conditional plea
agreement does not allow him to assert this argument because it
differs from the arguments he raised below.
Because Rich’s
argument fails on the merits, we assume without deciding that it
is permitted by his conditional plea agreement.

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credentials.”

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To the extent Rich argues that the indictment

allows for the possibility that a coconspirator possessed valid
log-in

credentials,

this

indictment deficient.

possibility

does

not

render

the

The indictment clearly states that the

access was “unauthorized” and that the log-in credentials used
were

“compromised.”

Because

we

find

that

the

indictment

sufficiently alleges that the conspirators intended to access
LendingTree’s

network

the

court

district

without

did

not

authorization,
err

in

denying

we

conclude

Rich’s

that

motion

to

dismiss.
We affirm the judgment of the district court.

We dispense

with oral argument because the facts and legal contentions are
adequately

presented

in

the

materials

before

this

court

and

argument would not aid the decisional process.
AFFIRMED

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