In U.S. v. Barrington, the defendant and some friends at Florida A & M University decided to improve their grades for graduate school applications. They devised a plan to access the school’s internet based grading system using keylogger software, a program which captures every keystroke made on a computer. A codefendant working in the Registrar’s office installed the program on various University computers and managed to capture the usernames and passwords made by school employees as they signed onto their computers. Not only did the defendants change grades, they added credits for courses failed or not taken and changed the residence of non-resident students to qualify them for in-state tuition. Barrington and his friends were indicted on conspiracy to commit wire fraud (18 U.S.C. §1349), fraud using a computer (18 U.S.C. §1030), and aggravated identity theft 18 U.S.C. §1028.)
The defendant challenged the admission of prior bad act evidence, under to Rule 404(b) of the Federal Rules of Evidence, showing how Barrington had previously changed grades for a coconspirator using forged instructor signatures on University grade change slips. The court applied the following 3-step test:
The court found the evidence was probative of intent, and found a basis for the jury to find he committed the extrinsic act and it was not outweighed by unfair prejudice.
Barrington also challenged the trial court’s limitation on his cross examination of a government witness by preventing him from questioning him about a pending Florida state burglary charge because the charged had not yet been reduced to a conviction. The appellate court found that the cross on the burglary charge would not have presented a different impression of the witness’ credibility because the defendant’s counsel elicited sufficient information from the witness about his possible motive to testify and his personal bias against the defendant to enable to jury to assess his credibility.
Barrington also claimed the prosecution was on a legally erroneous fraud theory in that changed grades do not constitute a property interest and therefore the Government’s proof did not establish financial deprivation as required under the wire fraud statute. The court rejected the argument, finding FAMU has a property right to the tuition generated by class hours a student registers for and the higher tuition paid by non-resident students.
The court upheld the aggravated identity theft convictions on the grounds that the user name and passwords were a means of identification for those specific employees whose keystrokes were captured. This was sufficient to prove an offense under the statute.
Finally, Barrington raised without success several issues challenging his sentence. The defendant’s failure to answer the court’s question “Do you still maintain that you did nothing wrong?” on advice of counsel was not show an intent to impose a more severe sentence for not answering the question. Barrington also received an increase for committing a fraud that involved sophisticated means, for his role as a leader, and for using an unauthorized access device. The appellate court found the 84 month sentence reasonable in light of factors listed in 18 U.S.C. § 3553(a).