City and County of Denver District Court No. 13CR465 Honorable Elizabeth A. Starrs, Judge
Cynthia H. Coffman, Attorney General, Kevin E. McReynolds, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Scott Robinson, P.C., Scott H. Robinson, Denver, Colorado, for Defendants-Appellants
¶ 1 Defendants, Matthew Stotz and Gustav Eicher, appeal the judgments of conviction entered on jury verdicts finding them guilty of computer crime. They also appeal the amount of restitution ordered.
¶ 2 This case requires us to determine the constitutionality of a portion of Colorado's computer crime statute providing that "[a] person commits computer crime if the person knowingly: . . . [w]ithout authorization or in excess of authorized access . . . damages . . . or causes any damage to . . . data contained in [any] computer." § 18-5.5-102(1)(e), C.R.S. 2015. We conclude that this provision is constitutional as applied to employees who a jury determined had deleted thousands of documents from their company-issued laptops, knowing that they acted without authorization or in excess of authorized access in doing so.
¶ 3 Accordingly, we affirm defendants' convictions. We also affirm the restitution orders.
I. Facts and Procedural History
A. Defendants' Employment and Resignations
¶ 4 Until their resignations in July 2012, defendants worked for the Denver office of Electric Power Systems (EPS), a nationwide company that performs electrical testing for utilities and industrial and commercial clients. Stotz was the regional operations manager, and Eicher was the sales manager for industrial and commercial clients.
¶ 5 In the spring of 2012, defendants became unhappy with some circumstances of their employment with EPS. Along with three other Denver EPS employees, they resigned on July 23, 2012, after accepting job offers from EPC, a competitor of EPS.
B. Missing Computer Files and Alleged Damage to EPS
¶ 6 Sometime after defendants returned their company-issued laptops and left the company, EPS realized that information it needed on past, current, and potential jobs was missing from the laptops. Such information included data from the tests EPS performed on its customers' power equipment, reports on the test results that EPS prepared for its customers, the individual "test macros" or models EPS designed for each facility before testing it, bids and quotes for potential jobs, and equipment inventory and scheduling for upcoming jobs.
¶ 7 EPS employees testified that this information should have been stored on defendants' laptops for every job they had worked on at EPS. However, Eicher's laptop contained no such information for any job, and an EPS employee testified that Stotz's laptop had incomplete information regarding some jobs. Also missing from defendants' laptops were the manuals issued by the manufacturers of the equipment being tested, which detailed the equipment's specifications, its intended use, how to install it, and when and how to maintain it.
¶ 8 Manuals were issued for each equipment model and year, and there was evidence presented at trial to support a conclusion by the jury that they were essential for performing the testing. Electrical engineers like defendants collected and kept the manuals that they used for work; for instance, Stotz testified that he uploaded over 7000 manuals to his EPS laptop when he started working there.
¶ 9 EPS hired a computer forensic company to determine what had been deleted from defendants' laptops and to recover, if possible, the deleted documents. Evidence at trial showed that Stotz and Eicher had first copied files from their EPS laptops onto USB hard drives and then deleted the files from the laptops. Along these lines, the owner of the forensic computer company testified that he recovered 3700 deleted files and 1800 deleted e-mails from Stotz's computer and 8200 deleted files and 25, 000 deleted e-mails from Eicher's computer.
C. Stotz's and Eicher's Trial Testimony
¶ 10 Both Stotz and Eicher testified at trial. Neither disputed that they copied files from their company laptops onto personal external hard drives and then deleted the files from their laptops before leaving EPS.
¶ 11 Stotz testified that he copied files so that he would have information relating to the projects he had worked on at EPS in case he needed it to protect himself from liability if a problem arose in the future with one of the projects. He testified that he downloaded onto his external hard drive over 24, 000 EPS files before he resigned, including 7000 manuals.
¶ 12 Stotz denied deleting any testing data or other data regarding any EPS projects from the laptop, although he admitted to deleting the 7000 manuals. He testified that he did not believe deleting the manuals would hurt EPS because he had brought with him or obtained all the manuals himself, and he had made sure that the remaining EPS employees had copies of all the manuals he had before deleting them. He testified that most of the other files that he deleted were personal music, photo, and video files.
¶ 13 Eicher testified that only about 20% of the documents he copied and then deleted from his company laptop were EPS materials, and the remaining 80% were documents from his prior employment that he had loaded onto his EPS laptop. He claimed that he copied the EPS documents so that he would have a personal copy of his quotes and projects for his own reference in the future.
¶ 14 Regarding the deletions, Eicher testified that his understanding was that after his resignation the laptop would go to EPS's IT department and all the files on it would be erased to prepare the laptop for use by another EPS employee. He testified that he thus believed that it was not improper to erase all of the laptop's files and software other than Microsoft Word and Excel, which was the condition in which he had received the laptop when he was hired. He testified that the manuals that he deleted consisted primarily of manuals he had uploaded to the computer when he began working for EPS. He denied that he was trying to hurt EPS by deleting them; rather, he believed that there was no need to leave the manuals on the laptop because he believed it would be wiped clean after he left.
¶ 15 Eicher testified that he deleted bids and quotes from his laptop because "deleting bids was a normal thing" for him and he deleted them as he "went along." He testified that he filed a hard copy of every bid and quote, and the information relating to every job or project, in paper folders that remained in the EPS office after he resigned. He also testified that a spreadsheet he had prepared and given to other EPS employees before leaving EPS showed every current job he was involved in and its status. He thus denied that he intended to harm EPS by deleting all his quotes, bids, and project files from the laptop because he believed that the hard copies of all the information relating to outstanding bids and past and in-progress jobs were in the office's paper files.
D. The People's Evidence
¶ 16 Although Eicher testified that he left the office's paper quote and job files organized, complete, and intact, some of the EPS employees who testified at trial disputed his assertion. For instance, Thomas Reed, who owned EPS along with his brother Steven and their father, testified that the Denver office was missing information relating to quotes. He testified that employees consequently were not always aware of upcoming jobs and sometimes failed to show up at job sites for scheduled jobs. He also testified that because the office was missing some of the reports for jobs that had already been completed, EPS could not provide them to their customers, as required by their contracts.
¶ 17 Steven Reed likewise testified that after the resignations, Denver employees frequently did not know what jobs or quotes were pending, and they (embarrassingly) had to ask their customers to forward EPS quotes to them so that they could determine what needed to be done. And employee Michael Benitez testified that employees often did not know when and where they were scheduled to work and the specifics of the work that needed to be done, in part because the spreadsheet Eicher had provided was missing critical information. Other EPS employees gave similar testimony.
E. Civil Suit
¶ 18 EPS filed a civil suit against the five employees, including defendants, who had resigned on July 23, 2012. EPS sought to enforce the noncompete agreements each employee had entered into with EPS and to obtain money damages. Following a preliminary injunction hearing in October 2012, the district court mainly denied relief to EPS, concluding that the noncompete agreements were probably unenforceable. The court also determined that EPS probably could not establish that any data or documents in the possession of the civil defendants had been provided to EPC to the detriment of EPS.
¶ 19 The court did grant a limited preliminary injunction, enjoining, for a period of time, the civil defendants from using information pertaining to bids they had been working on at EPS, and from submitting further bids on behalf of EPC for projects they worked on at EPS. The court also ordered the civil defendants to return to EPS all the documents and data that they had downloaded to hard drives. However, it is undisputed that defendants had already done so about a month earlier, in September 2012, approximately six weeks after their resignations.
F. Criminal Charges
¶ 20 In November 2012, EPS submitted a formal complaint to the Economic Crime Unit of the Denver District Attorney's (DA's) office, seeking criminal prosecution of defendants. The DA's office filed criminal charges against defendants in January 2013. At some point before trial, EPS sought and obtained, over the objection of all the civil defendants, dismissal without prejudice of the civil suit.
¶ 21 Defendants were charged with computer crime, causing loss of $1000 or more but less than $20, 000; conspiracy to commit computer crime; conspiracy to commit theft; theft of trade secrets; and conspiracy to commit theft of trade secrets. A jury convicted defendants of felony computer crime but acquitted them of the other charges. The trial court sentenced defendants to a two-year suspended prison sentence, imposed two years' probation, and awarded EPS $104, 920.26 in restitution, for which defendants are jointly and severally liable.
II. Computer Crime Statute
¶ 22 Defendants argue that the computer crime statute under which they were convicted is unconstitutional on its face and as applied to them because it (1) provides inadequate guidance regarding what conduct is prohibited and thus is void for vagueness; (2) criminalizes lawful conduct and thus is unconstitutionally overbroad; and (3) under People v. Vinnola, 177 Colo. 405, 494 P.2d 826 (1972), impermissibly left the determination of their criminality to EPS. We reject defendants' arguments.
¶ 23 The parties agree that defendants preserved their arguments by moving pretrial for an order declaring the statute unconstitutional on the same grounds as those asserted on appeal. The trial court denied the motion.
¶ 24 We review de novo a constitutional challenge to a statute. People v. Cisneros, 2014 COA 49, ¶ 23. Statutes are presumed to be constitutional, and the party challenging the statute has a heavy burden to establish that it is unconstitutional. See id.
¶ 25 Due process "requires that a penal statute define [a] criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement." Kolender v. Lawson, 461 U.S. 352, 357 (1983); see also People v. Gross, 830 P.2d 933, 937 (Colo. 1992). A statute is unconstitutionally vague under the void-for-vagueness doctrine if it "fail[s] to provide the kind of notice that will enable . . . . the ordinary citizen to conform his or her conduct to the law, " City of Chicago v. Morales, 527 U.S. 41, 56, 58 ...