United States of America v. Brian Matthew Rich

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4774
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BRIAN MATTHEW RICH,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad,
Jr., District Judge. (3:12-cr-00369-RJC-3)
Submitted: June 30, 2015 Decided: July 29, 2015
Before NIEMEYER, DUNCAN, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Ross Hall Richardson, Executive Director, Joshua B. Carpenter,
FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Asheville,
North Carolina, for Appellant. Jill Westmoreland Rose, Acting
United States Attorney, Anthony J. Enright, Assistant United
States Attorney, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Brian Matthew Rich appeals his conviction for conspiracy to
violate the Computer Fraud and Abuse Act (“CFAA”), 18 U.S.C.
§ 1030 (2012). Pursuant to a conditional guilty plea, Rich
challenges the district court’s denial of his motion to dismiss
the indictment for failure to state an offense. We affirm.
“Where, as here, a district court’s denial of a motion to
dismiss an indictment depends solely on a question of law, we
review the district court’s ruling de novo.” United States v.
Bridges, 741 F.3d 464, 467 (4th Cir. 2014). A federal
indictment must contain the elements of the offense charged,
fairly inform the defendant of the charge, and enable the
defendant to plead double jeopardy as a defense to future
prosecutions for the same offense. United States v. Resendiz–
Ponce, 549 U.S. 102, 108 (2007); see Fed. R. Crim. P. 7(c)(1).
Rich’s sole challenge to the indictment is that it failed to
allege that the conspirators lacked authorization to access
LendingTree’s network. With respect to this element, the
indictment was required to allege that the conspirators agreed
to either access a protected computer without authorization or
exceed authorized access. See United States v. Moussaoui, 591
F.3d 263, 296 (4th Cir. 2010) (stating elements of conspiracy);
18 U.S.C. § 1030(a)(2)(C) (stating requirements of CFAA).

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Rich argues that the factual summary accompanying his plea
agreement indicates that the conspirators accessed LendingTree’s
network solely through administrator log-in credentials validly
possessed by a coconspirator, and that such “password sharing”
does not violate the CFAA. See WEC Carolina Energy Sols. LLP v.
Miller, 687 F.3d 199, 206 (4th Cir. 2012) (holding CFAA
criminalizes obtaining or altering information individual lacked
authorization to obtain or alter). We cannot consider this
factual summary in reviewing the denial of a motion to dismiss,
but must instead constrain our review “to the allegations
contained in the indictment” United States v. Engle, 676 F.3d
405, 415 (4th Cir. 2012).∗
We decline to reach Rich’s argument regarding the scope of
the CFAA because even assuming, per arguendo, that Rich’s
interpretation is correct, the indictment was sufficient to
state an offense. The indictment alleges that the conspirators
“accessed without authorization and exceeded authorized access
to one or more LendingTree Network protected computers . . .
through the use of compromised LendingTree administrator log-in
∗ The Government claims that Rich’s conditional plea
agreement does not allow him to assert this argument because it
differs from the arguments he raised below. Because Rich’s
argument fails on the merits, we assume without deciding that it
is permitted by his conditional plea agreement.

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credentials.” To the extent Rich argues that the indictment
allows for the possibility that a coconspirator possessed valid
log-in credentials, this possibility does not render the
indictment deficient. The indictment clearly states that the
access was “unauthorized” and that the log-in credentials used
were “compromised.” Because we find that the indictment
sufficiently alleges that the conspirators intended to access
LendingTree’s network without authorization, we conclude that
the district court did not err in denying Rich’s motion to
dismiss.
We affirm the judgment of the district court. We dispense
with oral argument because the facts and legal contentions are
adequately presented in the materials before this court and
argument would not aid the decisional process.
AFFIRMED

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