United States District Court

For the Northern District of California

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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

UNITED STATES OF AMERICA,

 v.

GREGORY ALEXANDER,

Defendant. /

No. C 09-00719 MHP

MEMORANDUM & ORDER

Re: Defendant’s motions to dismiss count

35; for a bill of particulars; for discovery;

and for sanctions

Defendant Gregory Alexander (“Alexander”) is charged in a thirty-five count indictment. 

Counts 1 through 34 allege felony violations of the Computer Fraud and Abuse Act (“CFAA”), 18

U.S.C. § 1030(a)(2)(c), and count 35 alleges aggravated identity theft, 18 U.S.C. § 1028A(a)(1). 

Now before the court are four separate pretrial motions filed by Alexander: (1) a motion for a bill of

particulars to require the government to provide additional details to support the CFAA counts,

Docket No. 42; (2) a motion to compel the government to produce certain documents related to the

investigation into Alexander’s conduct, Docket No. 43; (3) a motion to dismiss count 35 of the

indictment, Docket No. 44; and (4) a motion seeking various relief as a consequence for the

government’s failure to timely respond to the three previously-mentioned motions, Docket No. 49. 

The indictment alleges that on thirty-four separate occasions, Alexander accessed, without

authorization, the Yahoo! email account of Randall Hough, one of the board members of the United

States Chess Federation (“USCF”). These thirty-four intrusions into Hough’s account correspond

with the thirty-four counts of violations of the CFAA and also form the basis for the aggravated

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identity theft charge. Although none of the factual background related to this allegedly criminal

conduct is included in the indictment, the government, in its late-filed opposition to Alexander’s

motions, describes how Alexander’s actions were part of an internal power struggle among the

USCF board members.

The indictment filed by the government in this case is as factually and legally deficient as

any the court has seen in its experience. Counts 1 through 34 charge Alexander with accessing

another individual’s Yahoo! email account and thereby obtaining information. 18 U.S.C. section

1030(a)(2)(c) states that “[w]hoever intentionally accesses a computer without authorization or

exceeds authorized access, and thereby obtains information from any protected computer” shall be

punished. A violation of subparagraph (a)(2) is a misdemeanor, see 18 U.S.C. § 1030(c)(2)(A),

unless the government proves that

(I) the offense was committed for purposes of commercial advantage or private

financial gain;

(ii) the offense was committed in furtherance of any criminal or tortious act in

violation of the Constitution or laws of the United States or of any State; or 

(iii) the value of the information obtained exceeds $5,000

Id. § 1030(c)(2)(B). If the government establishes any one of those three aggravating circumstances,

a violation of subsection (a)(2) is a felony, punishable by a fine or imprisonment not more than five

years. Id. 

The indictment includes only one allegation that could possibly be construed as alleging a

violation of the CFAA under subsection (c)(2)(A). Paragraph 7 of the indictment states that

“Gregory Alexander intentionally and without authorization accessed a protected computer, to wit:

the email server operated by Yahoo administering the e-mail account randallhough@yahoo.com, by

means of interstate communications, and thereby obtained information from said protected

computer, . . . All in violation of 18 U.S.C. §§ 1030(a)(2)(c) and (c)(2)(B)(ii).” Although the

indictment purports to allege a violation of the CFAA’s felony provision, subsection (c)(2)(B)(ii),

nowhere does it allege the statutory language of that provision, nor does it include any factual

allegations from which it could be inferred that Alexander’s computer intrusions were “in

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furtherance of any criminal or tortious act in violation of the Constitution or laws of the United

States or any State.” In other words, it fails to allege any tortious or criminal conduct that would

invoke subsection (c)(2)(B)(ii). This obvious facial shortcoming in the indictment, for which the

government, at the hearing on the motion, had no explanation, requires that the court construe counts

1 through 34 as charging Alexander with misdemeanor violations of the CFAA. In fact, the

government conceded as much at the hearing. 

Having concluded that the indictment only alleges misdemeanor violations of the CFAA, the

court must dismiss count 35. Count 35 of the indictment charges Alexander with aggravated

identify theft in violation of 18 U.S.C. section 1028A(a)(1). Section 1028A(a)(1) provides that:

Whoever, during and in relation to any felony violation enumerated in subsection (c),

knowingly transfers, possesses, or uses, without lawful authority, a means of

identification of another person shall, in addition to the punishment provided for such

felony, be sentenced to a term of imprisonment of 2 years.

18 U.S.C. § 1028A(a)(1) (emphasis added). A felony violation of the CFAA, 18 U.S.C. § 1030, is

among the felony violations enumerated in 18 U.S.C. section 1028A(c) that can serve as a predicate

for a prosecution for aggravated identity theft. However, counts 1 through 34 of the indictment only

allege misdemeanor violations of the CFAA. Accordingly, count 35 must be dismissed, as it fails to

include any allegations that the identity theft engaged in by Alexander was committed “during and

in relation to any felony violation . . . .”

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United States District Court

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CONCLUSION

The court deems that counts 1 through 34 of the indictment filed against defendant allege

only misdemeanors, as opposed to felonies. On its face, the indictment fails to allege that the

defendant’s violations of 18 U.S.C. section 1030(a)(2)(c) were committed pursuant to any of the

circumstances specified in 18 U.S.C. section 1030(c)(2)(B). Accordingly, count 35 is dismissed, as

the indictment fails to allege that defendant used “a means of identification” of another individual

“during or in relation to any felony violation . . . .” 

Within thirty (30) days of the date of this order, the government must inform defendant and

the court whether it intends to seek a superseding indictment or proceed on the remaining thirty-four

misdemeanor counts for violations of the CFAA. 

IT IS SO ORDERED.

Dated: August 16, 2010 

MARILYN HALL PATEL

United States District Court Judge

Northern District of California

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