State v. GaikwadState v. Gaikwad
Defendant Arun Gaikwad appeals from his conviction under Monmouth County Indictment No. 98-03-0415, after a jury trial,
On appeal, Gaikwad raises the following issues:
I. Failure of the court to charge the definition of “obtain” rendered the charge on count one and count four insufficient and incomplete.
II. The court‘s charge on count one was insufficient and incorrect and the evidence was insufficient to convict.
III. There was insufficient evidence to sustain a conviction on count four.
IV. The jury findings on count one were inconsistent with the verdicts on counts three and five.
V. The court was required to charge the lesser inсluded offense of N.J.S.A. 2C:20-32.
VI. The court‘s charge on counts three and five was insufficient.
VII. The court failed to charge an affirmative defense pursuant to N.J.S.A. 2C:20-2 and 2C:20-27(b).
VIII. Authorization to access AT & T systems was not sufficiently explained given the testimony adduced in the case.
IX. The court improperly restricted cross-examination of the credibility of Michael Romano.
X. The indictment should have been dismissed on Sixth Amendment speedy trial grounds.
Prior to trial, Gaikwad‘s motion to dismiss the indictment on speedy trial grounds was denied. Defendant‘s attorney‘s motion to be relieved as counsel was granted and Gaikwad proceeded to trial pro se before a jury.
The following facts were developed at the trial. On September 3, 1996, Lori Kershner, a software developer with AT & T at its Red Hill location, logged onto her computer at work and noticed that the last date and time she accessed her account as reported by the computer appeared odd as it did not appear to be a time when she had logged on to the system. Although the login reported that she had recently logged on to the “trumpet system,” she had not personally logged on to that system in several days. Kershner then accessed her account‘s history file to determine why the computer reported that she had logged onto the trumpet system. This file revealed a variety of UNIX commands which she was positive she had not entered, including a connection to AT & T‘s “uhura” system through a remote login command;2 an attempt to access the mail
After discussing the matter, Kershner and Williamson called Charles Bennett of corporate security. Williamson discussed the break-in with Bennett, Glenn Evans, and the AT & T District Manager. They determined that Kershner‘s account had been accessed without authorization using the “.rlogin” command to edit her “.rhosts” file and then using the shortcut to navigate through systems, deleting all commands and changing the file back upon exiting the system.
On September 6, 1996, Williamson installed a program that would notify him any time Kershner‘s account was modified. He also installed monitoring devices to trace the intruder‘s actions once in her account. Williamson determined that the intruder‘s originating account was through a group account labeled “INT” with a single user password accessed by multiple users to test software. He then traced the access to the INT account back to the harbor system, which had been accessed through a network providing access to various AT & T systems. Williamson concluded from security billing records that the access was from outside the AT & T Red Hill location, and specifically from the Corporate Wide Area Network, and an originating group with the name “841/297/erredfs1,” and the “node name” “m97a.”
From this it was further learned that the originating group was located at 580 Howard Avenue, Somerset, in a building shared by AT & T and Lucent Technologies, which had recently been spun-off from AT & T as a separate company. The node name m97a, however, belonged to Lucent.
Williamson went to Bennett with his findings and they met with Lucent‘s Security Manager, District Manager, and a representative from its Outsourcing Contractor, IBM Global Securities. By examining network server logs, Norborne Preas of IBM was able to determine the precise computer terminal that had accessed the AT & T system from an office occupied solely by Gaikwad.
At that time, Gaikwad was a contract employee with Lucent and was employed as a full time software developer on August 2, 1996. Gaikwad‘s employment with Lucent did not anticipate or require access tо the AT & T computer system. Prior to his employment with Lucent, Gaikwad was a contract employee of AT & T from November 11, 1992 to July 31, 1996, as a software developer and tester. Gaikwad‘s supervisor during that time, Michael Romano, testified that Gaikwad‘s performance was generally good but towards the end of his employment there was a drop off in performance which, combined with management‘s desire to reduce staff, led to his dismissal. Gaikwad‘s individual username and password were locked out of the AT & T system when he was dismissed on July 31, 1996.
Preas installed a database monitor on Gaikwad‘s terminal on September 12, 1996. This monitor was a security device which captured all activity to and from the terminal and enabled security to monitor and capture every strike of the keyboard at Gaikwаd‘s terminal. On September 29, 1996, security installed a pin hole surveillance
AT&T‘s investigation revealed that from August 2 to October 5, 1996, Gaikwad accessed AT & T‘s system, without authorization, from his terminal at Lucent 144 times. On October 9, 1996, the State Police obtained a warrant for Gaikwad‘s arrest. On October 10, 1996, he was arrested.
AT&T‘s District Manager, Joseph Zeigler reviewed the print-out logs from the database monitor from September 16, 1996 to October 10, 1996. He concluded that they revealed a consistent pattern of Gaikwad entering into various coworkers’ individual accounts using the trusted hosts shortcut feature, impersonating the user, copying their elеctronic mail to the directory he was located in so that he could view the contents of the mail without detection, and using a shell to avoid leaving a history of commands on the account or simply deleting the history. Zeigler testified that copying the file prevented the legitimate user from knowing Gaikwad had accessed it. The State presented a step by step, keystroke by keystroke, reenactment of Gaikwad‘s entering into certain co-workers’ systems and reading of their mail. At trial, Williamson presented examples of sensitive proprietary information actually accessed by Gaikwad through reading co-workers’ e-mail, including various e-mails regarding an AT & T bid for a system to monitor capacity management of telephone call volume that could have been used by AT & T‘s competitors to obtain an unfair advantage.
Due to Gaikwad‘s unauthorized access, AT & T was forced to employ certain remedial measures to ensure security. First, they shut down all the systems Gaikwad had accessed without notice to its users prior to Gaikwad‘s arrest. Williamson testified that shutting down the systems without notice was a great inconvenience to its users but was necessary because AT & T did not want news of the shut down to get back to Gaikwad or any other unauthorized users. After Gaikwad was arrested they reloaded the systems with new software, disrupting the systems and their users for several days. Additionally, all access through group accounts was blocked and all .rhosts files were removed, eliminating the trusted host shortcuts between computer systems, thus inconveniencing legitimate users of the shortcuts. Zeigler placed thе cost of the investigation and the cost of the four systems administrators involved in reloading the systems at $21,875. He also estimated that the disruption in service of the systems affected fifty users at a cost of $35,000, for a total of $56,875, not including AT & T‘s corporate security costs.
Gaikwad testified in his own defense that he was authorized by Romano to access AT & T‘s computer system to check the status of, and to aid in developing, the projects he was working on when he left AT & T. He asserted that Romano and his co-workers called him after he left for help with the project. Gaikwad further stated that he accessed the AT & T system to determine whether the project was to be canceled. If he discovered that the project was to be canceled, he intended to alert his friends still working on the project of the pending cancellation.
Romano testified he told Gaikwad they would call him if they had any questions, but did not recall giving him permission to log back onto the AT & T system to work on the project. Although two co-workers acknowledged calling him regarding problems with the software, the problems did not require Gaikwad to log onto AT & T‘s system. Furthermore, Gaikwad‘s former co-workers testified that they had not given
I.
Gaikwad challenges the judge‘s jury charge instructions in several respects. He claims the judge erred in failing to (1) charge the definition of the word “obtain” in
We note initially that Gaikwad did not object to the charge at trial. R. 1:7-2 provides that “no party may urge as error any portion of the charge to the jury or omissions therefrom unless objections are made thereto before the jury retires to consider its verdict....” This is because “[t]he absence of an objection ... prevent[s] the trial judge from remedying any possible confusion in a timely fashion.” Bradford v. Kupper Assoc., 283 N.J.Super. 556, 573-574, 662 A.2d 1004 (App.Div.1995), certif. denied, 144 N.J. 586, 677 A.2d 759 (1996). However, “the appellate court may, in the interests of justice, notice plain error not brought to the attention of the trial or appellate court.” R. 2:10-2. See State v. Hock, 54 N.J. 526, 538, 257 A.2d 699 (1969), cert. denied, 399 U.S. 930, 90 S.Ct. 2254, 26 L. Ed.2d 797 (1970).
There is no reversible error “where the charge, considered as a whole, adequately conveys the law and is unlikely to confuse or mislead the jury....” Fischer v. Canario, 143 N.J. 235, 254, 670 A.2d 516 (1996).
A.
Gaikwad asserts that in charging the jury as to
When an instruction in the statutory language does not sufficiently guide the jury “the definition and construction of pertinent terms for the jury” is required.
B.
Gaikwad also claims that the judge erred in failing to charge the statutory definitions of the terms “оbtain” and “electronic communications” in the instructions on
A person is guilty of a crime of the third degree if, for the purpose of commercial advantage, private commercial gain, or malicious destruction or damage, he (1) knowingly accesses without authorization a facility through which an electronic communication service is provided or exceeds an authorization to access that facility, and (2) thereby obtains, alters, or prevents authorized access to a wire or electronic communication while that communication is in electronic storage.
a. “Wire communication” means any aural transfer made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable or other like connection between the point of origin and the point of reception.... “Wire communication” includes any electronic storage of such communication, and the radio portion of a cordless telephone communication that is transmitted between the cordless telephоne handset and the base unit[.]
* * *
m. “Electronic communication” means any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectric or photo-optical system that affects interstate, intrastate or foreign commerce, but does not include:
(1) Any wire or oral communication;
(2) Any communication made through a tone-only paging device; or
(3) Any communication from a tracking device[.]
Reading the two definitions together, it is clear that the Legislature intended to cover the wide spectrum of potential communications made possible through technological advances. As defined, wire communications include aural communications and the electronic storage of aural communications. Therefore, electronic
Here the verdict indicates that the jury properly applied the term electronic communications to the improperly accessed e-mail. While it may have been preferable for the trial judge to have charged the definition of “electronic communications,” the judge‘s failure to do so clearly did not produce an unjust result warranting reversal. R. 2:10-2.
As to the judge‘s failure to charge thе statutory definition of the word obtain, we observe that unlike
C.
Gaikwad further argues that the judge erred in failing to charge the disorderly persons offense in
Applied here, there is no rational basis in the evidence for the jury to find Gaikwad not guilty of
The record is replete with testimony from the State‘s experts regarding the damage caused by Gaikwad‘s unauthorized entry. Although this testimony may have created a question as to the valuation of the damage, and whether it was quantifiable, there was little question as to whether damage actually occurred.
Moreover, Gaikwad never disputed that his access caused damage. Instead, his defense was based upon a claim of right. He maintained throughout the trial that he was given authorization to access the AT & T network by Romano. Thus, the central issue at trial was whether Gaikwad had authorization to access the system. Because the record does not support a finding that Gaikwad accessed the systеm without authorization and without causing damage, the judge did not err in failing to charge
D.
Additionally, Gaikwad asserts that the judge erred in not charging the “affirmative defenses” under
The record clearly demonstrates that all of Gaikwad‘s actions were intentional and there is no basis for a finding of recklessness. Gaikwad‘s unauthorized access into AT & T‘s system and his unauthorized entry into individuаl employee‘s accounts were reproduced in great detail at trial. Furthermore, the jury observed Gaikwad‘s video-taped access to electronic mail files and his copying of those files so that he could read their contents. As stated by the trial judge on the motion for a new trial, “the technical aspects of the intrusions belie reckless conduct.”
Moreover, as previously stated, Gaikwad‘s defense that he was authorized to enter the system was inconsistent with any claim of recklessness. Thus, there was no basis for a jury instruction based on his acting recklessly under
Next, we address Gaikwad‘s claims regarding
E.
Gaikwad further argues that the charge on
Nor was it plain error for the judge not to explain to the jury that
Further, the evidence clearly indicated that, aside from his entry into the AT & T system for which he claimed authorization, Gaikwad accessed or attempted to access internal systems within the greater AT & T system such as the “Uhura” and “Hugo” systems that he was unauthorized to enter even when he was employed at AT & T. Considering the overwhelming evidence of unauthorized access, the lack of explicit differentiation between a “computer system” and an individual computer in the
In sum, the jury charge on all counts, read as a whole, did not confuse or mislead the jury and Gaikwad has failed to demonstrate plain error capable of leading the jury to an unjust result.
II.
Gaikwad‘s claim that the jury was improperly charged and that there was insufficient evidence for the jury to convict him
R. 3:20-1 provides that a trial judge shall grant a motion for a new trial if, “having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a manifest denial of justice under the law.” See State v. Sims, 65 N.J. 359, 373-74, 322 A.2d 809 (1974). On appeal, our standard of review is essentially the same. The trial judge‘s ruling “shall not be reversed unless it clearly appears that there was a miscarriage of justice under the law.” R. 2:10-1; accord Feldman v. Lederle Lab., 97 N.J. 429, 463, 479 A.2d 374 (1984) (The standard is substantially similar except that due deference should be madе to the trial court‘s “`feel of the case,’ and `matters of credibility.‘“); Dolson v. Anastasia, 55 N.J. 2, 7, 258 A.2d 706 (1969).
Gaikwad argues that the judge erred in not employing a more restrictive reading of
Gаikwad was not tried for executing a scheme to defraud. The proofs did establish that he accessed AT & T‘s computer files, made copies, viewed and deleted the copies, and in the process compromising the integrity of AT & T‘s system, with attendant necessity for costly remedial action. With respect to “obtain[ing] services, property, or money,” Gaikwad argues that because subsection a of the statute prohibits taking as opposed to obtaining, the Legislature intended subsection c to be more narrow in accordance with the definition of “obtain” in
The definition of “obtain” in the statute with respect to property, “to bring about a transfer or purported transfer of a legal interest in the property,” could also be used to define “taking.” As noted above, the definition of obtain provided by the Legislature does not differ markedly from its plain and ordinary meaning. Moreover, taking is not defined by the Legislature, and thus, there is no basis to compare two definitions to determine whether the Legislature intended one term to be narrower than the other. Simply because Gaikwad could have been convicted of taking data under subsection 25a, an offense for which he was not indicted, does not indicate that his conviction under subsection 25c was improper.
Our review of the record reveals ample evidence to support the jury‘s verdict. There was no miscarriage of justice which would warrant reversal of the denial of a new trial. A conviction under
Gaikwad further argues that
III.
Gaikwad asserts that the jury‘s verdict on count one, third degree computer theft, was inconsistent with the verdicts on counts three (the third degree accessing and altering where no monetary value can be assessed) and five (the third degree attempted accessing and altering convictions) because on count one the jury placed a value on damages and on counts three and five found that no value could be assessed. We disagree.
Generally, there is no requirement in criminal cases that jury verdicts be consistent. State v. Grey, 147 N.J. 4, 9-10, 685 A.2d 923 (1996); State v. Scherzer, 301 N.J.Super. 363, 485, 694 A.2d 196 (App.Div.), certif. denied, 151 N.J. 466, 700 A.2d 878 (1997). Inconsistent verdicts are permissible so long as there is sufficient evidence in the record “to permit a rational factfinder to find a defendant‘s guilt beyond a reаsonable doubt on the charges on which the defendant was convicted.” State v. Ellis, 299 N.J.Super. 440, 456, 691 A.2d 403 (App.Div.), certif. denied, 151 N.J. 74, 697 A.2d 546 (1997). Accord State v. Grey, supra (147 N.J. at 10, 685 A.2d 923).
Here, the evidence demonstrated that from August 2 to October 5, 1996, Gaikwad accessed the AT & T system without authorization on 144 separate occasions. Gaikwad‘s access compromised AT & T‘s security and as a result AT & T was forced to implement certain remedial actions
Based upon the evidence the jury could have reasonably determined that of the 144 times Gaikwad accessed the system, certain unauthorized entries resulted in quantifiable damage, while other entries, such as those in which he obtained proprietary information, resulted in loss that was not quantifiable. Moreover, the jury could also have found defendant guilty of attempted accessing, count five, based upon his numerous failed attempts. Thus, there is no inconsistency in the verdicts which would warrant reversal.
IV.
Next, Gaikwad claims that the judge improperly restricted Gaikwad‘s cross-examination of Romano. Gaikwad argues that the judge limited his ability to question Romano as to certain prior inconsistent statements impinging his credibility and, as a result, Romano‘s testimony that Gaikwad was not authorized to enter the AT & T system went unchallenged. This argument is unpersuasive.
As an element of the right to confront witnesses, criminal defendants are guaranteed the right to cross-examine witnesses for the prosecution by the Sixth Amendment tо the United States Constitution and Art. I, Par. 10 of the New Jersey Constitution. State v. Harvey, 151 N.J. 117, 187-188, 699 A.2d 596 (1997), cert. denied sub. nom., 528 U.S. 1085, 120 S.Ct. 811, 145 L.Ed.2d 683 (2000). However, the right to cross-examine is not unlimited. Id. at 188, 699 A.2d 596. “It is well-established that the scope of cross-examination is a matter for the control of the trial court and an appellate court will not interfere with such control unless clear error and prejudice are shown.” State v. Murray, 240 N.J.Super. 378, 394, 573 A.2d 488 (App.Div.), certif. denied, 122 N.J. 334, 585 A.2d 350 (1990). Accord State v. Harvey, supra (151 N.J. at 188, 699 A.2d 596); State v. Martini, 131 N.J. 176, 619 A.2d 1208 (1993).
While we recognize that “[a] paramount purpose of cross-examination is the impeachment of the credibility of the witness,” Cavanaugh v. Skil Corp., 331 N.J.Super. 134, 174, 751 A.2d 564 (App.Div.1999), aff‘d, 164 N.J. 1, 751 A.2d 518 (2000), (quoting Perna v. Pirozzi, 92 N.J. 446, 457 A.2d 431 (1983)), “a cross-examiner does not have a license to roam at will under the guise of impeaching credibility.” State v. Engel, 249 N.J.Super. 336, 375, 592 A.2d 572 (App.Div.), certif. denied, 130 N.J. 393, 614 A.2d 616 (1991). The record demonstrates that the judge properly exercised his discretion in limiting the scope of Gaikwad‘s cross-examination to the relevant issues in the case. The judge limited Gaikwad‘s cross-examination of Romano on two occasions, and this was solely because Gaikwad‘s questioning of Romano focused on the quality of Gaikwad‘s work and the reason why he was terminated from AT & T, issues which were clearly irrelevant to whether he committed the charged offenses.
Gaikwad‘s opportunity to cross-examine Romano on prior inconsistent statements to the State Police regarding whether he provided Gaikwad with authorization was not limited by the Judge. On the contrary, when Gaikwad finally raised the question of Romano‘s authorization to access the AT & T system, Gaikwad made no mention of Romano‘s prior statements to the State Police. Gaikwad‘s only reference to the police report was to dispute
V.
Lastly, Gaikwad alleges that the trial judge erred in denying his motion to dismiss the indictment on speedy trial grounds. The judge found that the seventeen month delay between arrest and indictment was not unduly lengthy and Gaikwad had not suffered any prejudice by the delay. We agree.
The Sixth Amendment guarantees criminal defendants the right to a speedy trial and that right is applied to the states by the Fourteenth Amendment. Barker v. Wingo, 407 U.S. 514, 515, 92 S.Ct. 2182, 2184, 33 L. Ed.2d 101, 108-109 (1972); see also R. 3:25-3 (providing that a defendant may move to dismiss, or the court may sua sponte dismiss an indictment for unreasonable delay). The protections afforded by the Sixth Amendment are triggered upon either arrest or indictment. State v. Szima, 70 N.J. 196, 199-200, 358 A.2d 773, cert. denied, 429 U.S. 896, 97 S.Ct. 259, 50 L. Ed.2d 180 (1976); State v. Alexander, 310 N.J.Super. 348, 352-353, 708 A.2d 770 (App.Div.), certif. denied, 156 N.J. 408, 719 A.2d 640 (1998). In Barker v. Wingo, supra (407 U.S. at 529, 92 S.Ct. at 2191, 33 L.Ed.2d at 116-117), the Supreme Court established four factors for courts to consider in determining whether a defendant‘s right to a speedy trial has been violated. The criteria include the “[l]ength of delay, the reason for the delay, the defendant‘s assertion of his right, and prejudice to the defendant.” Ibid.; accord State v. Szima, supra (70 N.J. at 201, 358 A.2d 773); State v. Cappadona, 127 N.J.Super. 555, 558, 318 A.2d 425 (App.Div.), certif. denied, 65 N.J. 574, 325 A.2d 707 (1974).
We are satisfied that the seventeen month delay between Gaikwad‘s arrest and indictment was not unreasonable. The delay here appears to have been the result of the complexity of the subject matter of the case and not “[a] deliberate attempt to delay the trial in order to hamper the defense....” Barker v. Wingo, supra (407 U.S. at 531, 92 S.Ct. at 2192, 33 L.Ed.2d at 117) (noting as an example that “the delay that can be tolerated for an ordinary street crime is considerably less than for a serious, complex consрiracy charge“); see also State v. Douglas, 322 N.J.Super. 156, 171, 730 A.2d 451 (App.Div.1999) (holding that three year delay in a capital prosecution does not “give rise to prejudice or denial of the right to [a] speedy trial“), certif. denied, 162 N.J. 197, 743 A.2d 849 (1999). Furthermore, Gaikwad did not assert his right to a speedy trial until after the indictment.
Turning to the question of prejudice, the Court has identified three factors of prejudice: “oppressive pretrial incarceration, anxiety and concern of the accused and impairment of the defense.” State v. Szima, supra (70 N.J. at 201, 358 A.2d 773); accord Barker v. Wingo, supra (407 U.S. at 531, 92 S.Ct. at 2192, 33 L. Ed.2d at 117). Gaikwad did not suffer lengthy pretrial incarceration and does not claim anxiety and concern. His sole claim of prejudice is that his defense was impaired by the delay. He argues that this is evidenced by “numerous instances of failed memory concerning authorization.” However, the record does not reflect this. While Romano did not remember some of the specific details surrounding Gaikwad‘s work at AT & T, he was quite clear that he had not authorized Gaikwad to access AT & T‘s system after his dismissal to help with projects. Nor did he authorize him to
Affirmed.