PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.

ELAINE ROBERTSON CIONI,

Defendant-Appellant.  No. 09-4321

ELECTRONIC FRONTIER FOUNDATION;

NATIONAL ASSOCIATION OF CRIMINAL

DEFENSE LAWYERS,

Amici Supporting Appellant. 

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Gerald Bruce Lee, District Judge.

(1:08-cr-00239-GBL-1)

Argued: January 28, 2011

Decided: April 20, 2011

Before NIEMEYER, KING, and GREGORY,

Circuit Judges.

Affirmed in part, vacated in part, and remanded for further

proceedings by published opinion. Judge Niemeyer wrote the

opinion, in which Judge King and Judge Gregory joined.
COUNSEL

ARGUED: Jenifer Wicks, Washington, D.C., for Appellant.

Jay V. Prabhu, OFFICE OF THE UNITED STATES

ATTORNEY, Alexandria, Virginia, for Appellee. ON

BRIEF: Josh Goldfoot, Senior Counsel, UNITED STATES

DEPARTMENT OF JUSTICE, Washington, D.C.; Neil H.

MacBride, United States Attorney, Alexandria, Virginia, for

Appellee. Thomas K. Maher, NORTH CAROLINA OFFICE

OF INDIGENT SERVICES, Durham, North Carolina; Lee

Tien, Jennifer Stisa Granick, Marcia Hofmann, ELECTRONIC FRONTIER FOUNDATION, San Francisco, California, for Amici Supporting Appellant.

OPINION

NIEMEYER, Circuit Judge:

Elaine Cioni was convicted of five electronic communications offenses. In Count 1, she was convicted of conspiracy to

commit the offenses charged in the remaining four counts and

other related electronic communications offenses, in violation

of 18 U.S.C. § 371. In Counts 2 and 4, she was convicted of

obtaining information through unauthorized access to computers, in violation of 18 U.S.C. § 1030(a)(2)(C). Her convictions

on Counts 2 and 4 also included charges of committing the

offenses "in furtherance of" a violation of 18 U.S.C. § 2701(a)

(obtaining access to communications in electronic storage),

thus elevating her convictions on those counts from misdemeanors to felonies. In Count 5, she was convicted of making

harassing telephone calls, in violation of 47 U.S.C.

§ 223(a)(1)(C). And in Count 6 she was convicted of obtaining access to communications in electronic storage, in violation of 18 U.S.C. § 2701. Again in this count, her conviction

included charges of committing the offense "in furtherance

of" a violation of 47 U.S.C. § 223(a)(1)(C) (making harassing

2 UNITED STATES v. CIONI
telephone calls), thus elevating her conviction from a misdemeanor to a felony. The government dismissed Count 3

before trial.

The district court sentenced Cioni to a 15-month term of

imprisonment, followed by 2 years of supervised release.

Cioni challenges her convictions and sentence on numerous

grounds. As we more fully explain in our opinion, with

respect to Counts 2 and 4, we agree with Cioni that the

offenses were improperly elevated from misdemeanors to felonies, and we vacate the convictions on those two counts and

remand for entry of misdemeanor convictions. In view of that

conclusion, we also vacate Cioni’s sentence and remand for

resentencing. With respect to her other challenges, we affirm

the judgment of the district court.

I

Beginning in the summer of 2005, Cioni began having an

affair with Bruce Enger, her former supervisor at Long &

Foster Realty in Northern Virginia. Both Cioni and Enger

were married at the time. During the affair, which continued

for approximately two years, Cioni suspected that she was not

the only one with whom Enger was having an affair. Nonetheless, after Cioni relocated to the Chattanooga, Tennessee area

to take a new job and after the affair ended, Cioni and Enger

remained on speaking terms, and occasionally communicated

by telephone or e-mail.

Beginning in March 2007, however, Cioni began an anonymous electronic campaign of harassment against Enger, that

lasted more than a year and that was uncovered only after an

extensive investigation.

Initially, Enger started receiving harassing telephone calls

from an unknown source. The calls were made to several of

Enger’s telephone numbers, including those of his office,

UNITED STATES v. CIONI 3
mobile telephone, his wife Maureen’s telephone, and the telephones of several of his business associates. In each case, the

person making the call spoke in a distorted male voice and

revealed private information regarding Enger’s work and personal life. For example, on August 24, 2007, the unidentified

person called Enger on his Blackberry and said, "I know

where you are . . . [be]cause I’m there too. I followed you."

At other times, the caller recited the contents of Enger’s password protected e-mail accounts and told Enger that "we’re

watching every move you make" and that copies of damaging

e-mails would be sent to Enger’s family while he was travelling. Occasionally the calls also made threats toward Enger,

telling him, for example, that he "need[ed] to get on out of

Dodge." Caller identification indicated that the calls originated from telephone numbers familiar to Enger, such as his

home telephone number or his daughter’s cell phone number,

but in fact they originated from other telephones. Although

Enger sought to avoid the calls by changing his telephone

numbers several times, these efforts were unsuccessful, and

the harassing calls continued through May 2008.

At Enger’s prompting, the harassment campaign was investigated by Long & Foster, which sought to identify the caller’s identity. Long & Foster’s investigation focused on Craig

Scott, a former employee who Long & Foster believed had a

motive for retaliating against company officials, as well as the

technical knowledge necessary to carry out the campaign.

Between March and September 2007, Long & Foster gathered

evidence relating to the calls, to prior computer network intrusions, and to Scott’s whereabouts. Long & Foster then provided that information to local authorities, who charged Scott

with making the harassing telephone calls and improperly

accessing Enger’s e-mail. The charges, however, were later

dismissed because of a lack of supporting evidence. The

investigation nonetheless had a catastrophic impact on Scott,

who lost both his job and his marriage in the process.

Frustrated with its lack of progress in the investigation,

Long & Foster turned to the FBI, which conducted an exten4 UNITED STATES v. CIONI
sive investigation and ultimately determined that the harassing calls were made not by Scott but by Cioni and her longtime friend, Sharon Thorn. The FBI learned that Cioni and

Thorn had used a service known as "Spoofcard," which

enabled them to mask their telephone numbers and voices,

and make downloadable audio recordings of their calls.

Spoofcard’s billing records, which the FBI subpoenaed, indicated that over 300 calls were made from Cioni’s telephones

using some or all of Spoofcard’s features, and more than 220

of the calls were made to Enger’s various telephone numbers.

Inspired by actress Paris Hilton’s reported use of similar technology to access rival Lindsay Lohan’s voicemail, Cioni also

used Spoofcard to access Enger’s voicemail, during which

time she listened to new messages, played old messages,

deleted messages, and left her own disguised messages. Payment for many of the Spoofcard calls was made electronically

from computers at Cioni’s home and workplace, using a credit

card belonging to Cioni.

The FBI’s investigation also revealed that Cioni had

accessed or attempted to access numerous e-mail accounts

belonging to Bruce Enger, his wife, Maureen Enger, their

children, and several of Enger’s business associates, including

Patricia Freeman, Enger’s former assistant. These intrusions

were documented in log files kept by AOL, Google, and other

Internet service providers, which indicated that computers

with Internet Protocol addresses linked to Cioni’s home and

office had accessed or had attempted to access each of the

accounts noted. All of the accounts were password protected,

and none of the account holders had shared their passwords

with Cioni. The FBI discovered that Cioni had gained access

to many of these e-mail accounts by using an online service

known as "yourhackerz.com," which, for a fee, acquired thirdparties’ e-mail passwords surreptitiously. Some of the payments to yourhackerz.com were made by Cioni using Thorn’s

credit card, with Thorn’s permission, so as to "hide the paper

trail."

UNITED STATES v. CIONI 5
Finally, on May 22, 2008, FBI agents obtained a warrant to

search both Cioni’s office and residence. These searches

uncovered additional evidence linking Cioni to the e-mail

intrusions and harassing telephone calls. In particular, the

agents discovered on Cioni’s computers images of e-mail

inboxes belonging to two of Enger’s acquaintances, fragments

of e-mail communications between Enger family members,

and a confirmation e-mail from yourhackerz.com for the purchase of Enger’s e-mail password.

Cioni was indicted for her electronic communications

crimes, and, following a four-day trial, was convicted on all

counts. She testified at trial and corroborated much of the evidence. Specifically, she acknowledged that she had called

Enger and his wife via the Spoofcard service on numerous

occasions; that she had listened to Enger’s voicemail messages without his permission; that she had accessed without

authorization e-mail accounts held by Enger, his wife, Patricia

Freeman, and several other individuals; and that she had sent

printouts of some of the purloined e-mails to Enger’s residence via the U.S. Postal Service. But Cioni denied having

viewed any unread e-mail messages or having had any intention to intimidate Enger through these communications.

At the sentencing hearing, during which Cioni represented

herself following a disagreement with her attorney, the district

court reviewed the presentence report and ruled on objections

raised by both sides. The court determined that Cioni’s

offense level was 14 which, with her criminal history category

I, yielded a recommended Sentencing Guidelines range of 15

to 21 months’ imprisonment. After hearing extensively from

the parties, the court sentenced Cioni to a concurrent 15-

month sentence on each of the 5 counts of conviction, followed by 2 years of supervised release.

This appeal followed.

6 UNITED STATES v. CIONI
II

For her most substantial argument, Cioni contends that

Counts 2 and 4 improperly charged her with felony offenses,

when those counts could only have charged, based on the

facts alleged, misdemeanors. She bases this claim on the way

in which those counts were factually structured: each charged

her with committing a misdemeanor computer fraud offense

under 18 U.S.C. § 1030 and each elevated that offense to a

felony by alleging that she had done so "in furtherance of" the

separate crime of accessing, without authorization, communications in electronic storage under 18 U.S.C. § 2701.

Although Cioni accepts that she committed the misdemeanor

offenses, she contends that the indictment relied on the same

conduct to elevate those offenses to felonies, thereby violating

the Double Jeopardy Clause. In other words, Cioni argues that

Counts 2 and 4 "are multiplicitous in that each count charged

her twice with a single offense." If the elevating allegations

in Counts 2 and 4 were ineffective because they violated double jeopardy principles, then, as Cioni claims, she should have

been punished only for misdemeanor offenses, not felonies.

She requests that we "remand [those counts] for entry of judgment on the lesser included misdemeanor charges."

Count 2 charges that Cioni accessed a computer in interstate commerce without authorization and thereby obtained

information from the computer, in violation of 18 U.S.C.

§ 1030(a)(2)(C). Standing alone, that offense is punishable as

a misdemeanor by a fine or imprisonment for not more than

one year. Count 2 also alleges that the offense was committed

in furtherance of criminal and tortious acts . . . [in

that] Cioni accessed and attempted to access, without

authorization, a protected computer operated by

AOL within the Eastern District of Virginia and

obtained and attempted to obtain information (i.e.,

[Maureen Enger’s] unopened electronic communications) stored on that protected computer, by means

UNITED STATES v. CIONI 7
of electronic communications from Tennessee and

elsewhere, in furtherance of a violation of Title 18,

United States Code, Section 2701.

(Emphasis added). If the violation of 18 U.S.C. § 2701

involved the commission of a distinct crime, the "in furtherance of" allegation would elevate the misdemeanor alleged in

Count 2 to a felony. See 18 U.S.C. § 1030(c)(2)(B)(ii); see

also Boddie v. Am. Broadcasting Cos., 731 F.2d 333, 339 (6th

Cir. 1984) (holding that similar language in the Wiretap Act

[on which the "in furtherance of" enhancement in § 1030 was

based] applies only when the elevating crime is "other than"

the Wiretap Act violation).

The crimes described in 18 U.S.C. § 1030 and § 2701 are

similar, and a violation of § 1030 may be a lesser included

offense of a violation of § 2701, since a person usually must

obtain information through access to a computer in order to

obtain access to communications in electronic storage. Nonetheless, the two crimes are distinct and different. Section

1030(a)(2)(C) punishes the obtaining of information through

the unauthorized access to a computer, whereas § 2701(a)

punishes accessing without authority a "facility through which

an electronic communication service is provided" and thereby

obtaining communications that are "in electronic storage.

(Emphasis added). Thus, proof of a § 2701(a) offense requires

proof of facts that are not required for a violation of § 1030.

Cioni argues, however, that the conduct of accessing Maureen Enger’s e-mail account and viewing her e-mail there was

used to charge both the underlying violation of

§ 1030(a)(2)(C) as well as the elevating violation of § 2701,

so that the same conduct supported both crimes. This overlap

that Cioni identifies is essentially a "merger problem," "tantamount to double jeopardy," United States v. Santos, 553 U.S.

507, 527 (2008) (Stevens, J., concurring), where the facts or

transactions alleged to support one offense are also the same

used to support another. See also United States v. Halstead,

8 UNITED STATES v. CIONI
___ F.3d ___, No. 09-7442, 2011 WL 769053 (4th Cir. March

7, 2011). In Halstead, we explained:

Thus, when the illegal activity [healthcare fraud]

includes money transactions to pay for the costs of

the illegal activity, a merger problem can occur if the

government uses those transactions also to prosecute

the defendant for money laundering. An individual

cannot be convicted of money laundering for paying

the essential expenses of operating the underlying

crime. But when the financial transactions of the

predicate offense are different from the transactions

prosecuted as money laundering, the merger problem

recognized in Santos does not . . . arise.

Slip op. at 17 (internal quotation marks and citation omitted).

Looking simply at the allegations of Count 2, it does appear

that the government charged Cioni with unauthorized access

or attempted access to information in Maureen Enger’s e-mail

account and sought to elevate that charge to a felony by alleging that the access to Maureen Enger’s e-mail also constituted

a violation of § 2701. Moreover, the facts that the government

offered into evidence in support of Count 2 confirm this reading.

The government concedes the problem, stating:

The evidence presented at trial more than supports a

conviction under [Count 2]: it showed that the defendant did, in fact, access AOL using a hackerprovided password and obtained unopened e-mail.

However, there was no evidence that the defendant

committed this offense "in furtherance of any" separate and distinct "criminal or tortious act in violation

of the Constitution or laws of the United States or of

any State." 18 U.S.C. § 1030(c)(2)(B)(ii).

UNITED STATES v. CIONI 9
* * *

[B]ecause the only "criminal . . . act" proven at trial

that might have been a violation of 18 U.S.C. § 2701

was the same criminal act charged as the "offense"

in Count 2—i.e., the defendant’s unauthorized

access to AOL using a hacker-provided password, to

obtain unopened e-mail—there was not sufficient

evidence to prove that the defendant’s Section 1030

offense was "in furtherance of" criminal acts that

violated Section 2701.

We thus conclude that a merger problem did arise, implicating double jeopardy principles, and that therefore the felony conviction on Count 2 must be vacated, and, as requested

by Cioni, the count remanded for entry of a simple misdemeanor conviction, under § 1030(a)(2)(C).

The circumstances of Count 4 are no different, although the

government argues that Count 4 does not suffer from the same

problem as does Count 2.

Count 4 charges that § 1030(a)(2)(C) was violated

in furtherance of criminal acts committed in violation of the laws of the United States; that is, CIONI

intentionally attempted to access, without authorization, a protected computer operated by AOL within

the Eastern District of Virginia and obtain information contained in [Patricia Freeman’s] electronic

mail account by means of interstate electronic communications from Tennessee and elsewhere, in furtherance of violations of Title 18, United States

Code, Section 2701.

Count 4 alleges that this conduct occurred on March 10, 2008.

While the government argues that Count 4 does allege two

separate and distinct crimes, one for attempting to obtain

10 UNITED STATES v. CIONI
information through unauthorized access to a computer, in

violation of § 1030(a)(2)(C), which was allegedly committed

in furtherance of a second crime for attempting to obtain

Patricia Freeman’s unopened e-mail, in violation of § 2701,

the indictment does not allege facts sufficient to indicate that

the two crimes were based on distinct conduct. The full recitation of facts (contained in the description of overt acts in

Count 1), which is the basis for Count 4, states:

On or about March 10, 2008, the Defendant and/or

another member of the conspiracy attempted to

access, without authorization, from an Internet connection at the Defendant’s then-residence in Tennessee information contained within the AOL electronic

mail account of [Patricia Freeman]. This information

was stored on a protected computer operated by

AOL within the Eastern District of Virginia. This

attempt in 2008 failed.

Thus, Count 4, which claims two crimes, one in furtherance

of the other, is actually based on Cioni’s single unsuccessful

attempt to access Patricia Freeman’s AOL electronic e-mail

account. Moreover, this is all that the government proved at

trial. If the government had proven that Cioni accessed Freeman’s e-mail inbox and then used the information from that

inbox to access another person’s electronic communications,

no merger problem would have arisen. But the government

charged and attempted to prove two crimes using the same

conduct of attempting, but failing, to access only Patricia

Freeman’s e-mail account. This creates a merger problem,

implicating double jeopardy principles.

Just as fatal to Count 4 is the fact that the indictment, as

well as the evidence, failed to establish any crime under

§ 2701. While § 1030 criminalizes attempts to the same

degree as completed access, see 18 U.S.C. § 1030(c)(2), section 2701 does not, see 18 U.S.C. § 2701(a). Section 2701

requires that the person actually access a facility without

UNITED STATES v. CIONI 11
authorization and obtain, alter, or prevent authorized access to

a communication while in electronic storage. See 18 U.S.C.

§ 2701(a). Thus, while Cioni clearly violated § 1030(a) on

March 10, 2008, by attempting to access Patricia Freeman’s

e-mail account, her failed attempt could not have formed the

basis for a violation of § 2701(a).

For these reasons, we conclude that the felony convictions

on Counts 2 and 4 must be vacated and that the district court

must reduce those convictions to misdemeanors—i.e., simple

violations of § 1030(a)(2)(C).

III

Cioni also contends that the government’s evidence in support of its convictions on Count 1 (conspiracy, in violation of

18 U.S.C. § 371) and Count 6 (unauthorized access of an electronic communication service, in violation of 18 U.S.C.

§ 2701, committed in furtherance of harassing telephone calls,

in violation of 47 U.S.C. § 223), was insufficient. In considering this argument, we view the evidence in the light most

favorable to the government and determine whether substantial evidence supported the convictions. See United States v.

Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en banc).

As to Count 1, Cioni contends that the government offered

no evidence that she conspired with anyone else to access email accounts in violation of § 1030(a), committed in furtherance of a violation of § 2701(a). This argument challenges the

proof of conspiracy and repeats the argument that Cioni made

as to Counts 2 and 4. But the scope of conduct alleged in

Count 1 is significantly broader than that alleged in Counts 2

and 4, alleging conspiracy to commit numerous other electronic communications crimes, and the proof of record supports the broader allegations. Count 1 alleged and the

evidence showed that Cioni, in concert with Sharon Thorn,

hired and thus conspired with hackers to surreptitiously obtain

passwords to various e-mail accounts; that these hackers did

12 UNITED STATES v. CIONI
in fact provide Cioni with the passwords; and that Cioni used

the passwords successfully to access several e-mail accounts.

In one instance, Cioni used a hacker-provided password to

download a third party’s e-mail inbox and sent e-mail folders

that contained unread e-mails. Thorn participated in the conspiracy by permitting Cioni to use Thorn’s credit card to purchase the passwords and thereby enabling Cioni to "hide the

paper trail." In addition, Count 1 alleged that Cioni conspired

to access e-mail accounts and voice mail messages, in furtherance of accessing unread e-mail messages and making telephone calls to "harass, annoy, and harm" Enger and his

family. And the evidence again showed that Cioni did, without authorization, access Enger’s voicemail, including

unopened messages, and thereby obtained information that

she used to taunt Enger and his family, for instance, referring

to the Engers’ recent travel and to Cioni’s feigned surveillance of them. Viewing this evidence in the light most favorable to the government, it was sufficient to show that Cioni

conspired unlawfully to access computers and electronic storage facilities containing unopened e-mails for the purpose of

accessing other computers and harassing, annoying, and

harming Enger and his family. And because the objects of this

conspiracy included felony offenses that would have violated

18 U.S.C. § 1030; id. § 2701; and 47 U.S.C. § 223, the conspiracy was also a felony violation. See 18 U.S.C. § 371.

As to Count 6, Cioni contends that while she did illegally

access unopened voicemails, as alleged, in violation of

§ 2701(a), the record contains no proof that she did so "in furtherance of" making harassing telephone calls, in violation of

47 U.S.C. § 223. Again, this contention is belied by the

record, which shows clearly that Cioni made harassing telephone calls to Bruce Enger and his family, taunting them with

facts about their recent travel and her alleged surveillance of

them, information that she obtained by her unlawful access to

Enger’s voicemail. The illegal access to voicemail thus facilitated the harassing telephone calls by supplying the ammunition that made the calls harassing and threatening.

UNITED STATES v. CIONI 13
IV

Cioni next contends that in waiving her right to counsel at

sentencing, she did not do so knowingly and intelligently, and

that the district court thus erred in granting her request to proceed pro se.

After Cioni was arraigned, she hired private counsel to represent her. Before trial, however, a conflict arose between

Cioni and her counsel, prompting counsel to file a motion to

withdraw and Cioni to file a motion for leave to proceed pro

se. During the hearing on these motions, Cioni’s counsel

remarked that Cioni was "certainly competent under [Indiana

v.] Edwards," 554 U.S. 164 (2008), to represent herself. Eventually, however, Cioni withdrew her motion, stating that she

was "emotionally incapab[le] of representing [herself]

because [she was] so emotionally involved in th[e] matter,"

and counsel stayed on to represent Cioni throughout the trial.

Before sentencing, however, the issue again arose as Cioni

indicated that she was dissatisfied with her counsel and

wished to proceed pro se. Once more, counsel filed a motion

to withdraw and Cioni filed a motion to represent herself pro

se. Addressing the motions at the beginning of the sentencing

hearing, the court engaged Cioni in a dialogue regarding her

stated desire to proceed pro se, making sure that she (1) had

thought about representation "very carefully"; (2) had performed "extensive[ ]" legal research; (3) was aware of the

Sentencing Guidelines and the factors under 18 U.S.C.

§ 3553(a); (4) understood "what would take place at sentencing"; and (5) had no further questions for the court. When the

court then asked her if she preferred to go forward without

counsel, Cioni indicated that she did not but that financial difficulties forced her to do so. The court replied that it could

appoint counsel if Cioni qualified as indigent. Cioni

responded that she did not qualify, given the availability of

funds in her 401(k) account and that she preferred to reserve

those funds for her son. Following this dialogue, the district

14 UNITED STATES v. CIONI
court found that Cioni had knowingly and intelligently waived

her right to counsel and granted her request to proceed pro se.

Cioni now argues that her waiver was not voluntary, due to

either her financial duress or her emotional instability.

Based on her dialogue with the district court, we conclude

that Cioni’s waiver was a "‘knowing, intelligent act done with

sufficient awareness of the relevant circumstances.’" Iowa v.

Tovar, 541 U.S. 77, 81 (2004) (quoting Brady v. United

States, 397 U.S. 742, 748 (1970)). Her claim of financial

duress was simply her unwillingness to make the decision to

use her assets for legal representation in lieu of some other

purpose. And as to her claim of emotional instability, made

for the first time on appeal, the record provides insufficient

evidence from which to conclude that Cioni was incapacitated

by any emotional inability to represent herself. Indeed, the

record reveals that she actively provided her own defense in

a rational manner.

Accordingly, we reject Cioni’s argument that her Sixth

Amendment rights were violated when the district court

granted her request to represent herself.

V

Cioni’s remaining arguments do not merit extensive discussion, and we address them briefly.

A

First, Cioni contends that the district court erred in denying

her motion to suppress evidence that the FBI seized during the

execution of a search warrant. She argues that the affidavits

submitted to the magistrate judge in support of the warrant

left out information regarding when various acts occurred,

thus suggesting that the acts were stale. But the nature of

Cioni’s conduct and the content of the affidavits belie her

UNITED STATES v. CIONI 15
claim. Her unlawful activity extended over a substantial

period of time so that the affidavits necessarily included a

broad range of factual information, including records of Internet service providers and telephone companies linking her

directly to the e-mail intrusions and harassing calls. Moreover, much of the information was, in any event, tied to specific and relatively recent dates. We find that Cioni’s claim in

this regard lacks merit. See United States v. McCall, 740 F.2d

1331, 1335-37 (4th Cir. 1984).

She also contends that the affiants omitted known exculpatory details from the affidavits, demonstrating their reckless

disregard for the truth. See Franks v. Delaware, 438 U.S. 154,

155-56 (1978). Although omissions can, in certain circumstances, give rise to a Franks hearing, Cioni has not made the

"substantial showing" necessary under Franks to demonstrate

that FBI agents acted recklessly in preparing the affidavits in

her case. See United States v. Colkley, 899 F.2d 297, 300 (4th

Cir. 1990). Indeed, Cioni points to no specific evidence of

recklessness. Moreover, even if the additional facts cited by

Cioni were included in the affidavits, the probable cause calculus would nonetheless have remained unchanged. Under

these circumstances, Franks is inapplicable. See United States

v. Friedmann, 210 F.3d 227, 229-30 (4th Cir. 2000).

Finally, she contends that the affidavits did not indicate that

evidence would be found at her home and her office regarding

access to unopened e-mails. While access to unopened emails is a requirement for proving a violation of 18 U.S.C.

§ 2701(a), such evidence is not required to establish "a fair

probability that . . . evidence of" unauthorized access to communications in electronic storage would be found at her office

and home, particularly in light of the considerable circumstantial evidence regarding access to e-mail accounts in the affidavits. Illinois v. Gates, 462 U.S. 213, 238 (1983). All the

evidence to prove a crime need not have been sought or

obtained for the affidavits to be valid.

16 UNITED STATES v. CIONI
B

Cioni also contends that her case should be dismissed

because the prosecution engaged in misconduct before the

grand jury. Specifically, she claims that the prosecutor read

the indictment verbatim to FBI Special Agent Born and then

asked if the facts stated therein were "correct," without

obtaining any other evidence from Born through individualized questions. Cioni does not, however, provide any authority for the proposition that the procedure in using such a

broad, leading question was improper. More importantly, she

has failed to establish that she was prejudiced by any irregularity. See United States v. Feurtado, 191 F.3d 420, 424 (4th

Cir. 1999). The district court rejected this argument, and we

affirm its ruling.

C

Cioni contends for the first time on appeal that the statutes

under which she was convicted are unconstitutional because

their enactment exceeded Congress’ powers under the Commerce Clause. This argument lacks any merit. It is well established that Congress has the power to regulate interstate

communications networks, which generally fall under the "instrumentalities of interstate commerce" category described in

Gonzales v. Raich, 545 U.S. 1, 16 (2005). See also United

States v. MacEwan, 445 F.3d 237, 245 (3d Cir. 2006); United

States v. Hornaday, 392 F.3d 1306, 1311 (11th Cir. 2004).

D

Challenging an evidentiary ruling made by the district

court, Cioni contends that the court abused its discretion in

relying on Federal Rule of Evidence 412 to exclude evidence

she attempted to offer concerning Enger’s affairs with other

women. While she is correct in asserting that Rule 412 applies

only to "civil or criminal proceeding[s] involving alleged sexual misconduct" and that no sexual misconduct was at issue

UNITED STATES v. CIONI 17
in her case, the error was harmless. First, the evidence Cioni

sought to introduce was cumulative, inasmuch as evidence of

two affairs had already been admitted into evidence. And second, the excluded evidence could not possibly have affected

the verdict in light of the otherwise overwhelming evidence

of guilt, including Cioni’s own admissions.

E

Finally, Cioni contends that her sentence was procedurally

unreasonable because the district court failed to rule on some

of her objections to the presentence report and also failed to

consider all of the factors set forth in 18 U.S.C. § 3553(a).

These arguments, however, are also without merit. Before

beginning an evaluation of the parties’ objections, the district

court assured itself that Cioni had an opportunity to review

the presentence report and to file any objections that she had

to it. Then the court took the time to hear and rule upon the

parties’ objections to the presentence report. See J.A. 141-75.

In sentencing Cioni, the court also conducted an individualized assessment of the relevant § 3553(a) factors. Indeed, the

court heard extensive argument from both sides regarding

sentencing, during which Cioni herself spoke, uninterrupted,

for approximately 15 minutes. The court then commented on

the nature of her crimes, the impact that they had on various

victims, the Sentencing Guidelines, and related factors before

announcing Cioni’s sentence. See United States v. Hernandez,

603 F.3d 267, 271-72 (4th Cir. 2010).

In short, we reject Cioni’s sentencing arguments.

* * *

For the foregoing reasons, we vacate the felony convictions

on Counts 2 and 4 and remand those counts for entry of misdemeanor convictions, as requested by Cioni. We also vacate

Cioni’s sentence and remand for resentencing in light of the

18 UNITED STATES v. CIONI
changes to the convictions on Counts 2 and 4. In all other

respects, we affirm.

AFFIRMED IN PART, VACATED IN PART,

AND REMANDED FOR FURTHER PROCEEDINGS

UNITED STATES v. CIONI 19