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Conviction Vacated Because Venue Did Not Lie in New Jersey in Computer Fraud and Abuse Act Prosecution

In United States v. Auernheimer, No. 13-1816, the defendant was accused of hacking into AT&T's system and obtaining the email addresses of 114,000 iPad owners.  Neither he, his co-conspirator, nor the servers he hacked were in New Jersey, but some of the iPad owners lived there, and the government prosecuted him in the District of New Jersey.  The district court denied his request for a jury instruction on venue, reasoning that venue properly lied in New Jersey as a matter of law.

The Third Circuit reversed, noting that proper venue is twice guaranteed to a criminal defendant in the Constitution, at Article III, Section 2, Clause 3 and in the Sixth Amendment.  It is also codified in Federal Rule of Criminal Procedure 18.  The panel reasoned that neither of the "essential conduct elements" of the Computer Fraud and Abuse Act ("CFAA") offense - accessing a computer without authorization, and obtaining information - occurred in New Jersey.  Further, because the government charged Auernheimer with conspiring to violate the CFFA in furtherance of a New Jersey state crime, neither of the conduct elements of that offense (accessing a computer without authorization, and disclosing information) occurred in New Jersey either.  Therefore, venue was not proper on the conspiracy count.

With respect to the identity fraud offense, neither of the essential conduct elements (transfer, possession or use, and doing so in connection with a federal crime or state felony) occurred in New Jersey, so venue was not proper on that charge.

The Court rejected the government's policy arguments for discounting the ordinary "essential conduct elements" test for venue.  It also rejected the government's argument that the venue error was harmless.  The Court indicated that a venue error may be structural and in any case this error was not harmless.  The Court reversed the district court's venue determination and vacated Auernheimer's conviction. 

Special thanks to Claudia Van Wyk for her contributions to this post!




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