United States of America v. Elaine Robertson Cioni

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.

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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, ELEC-
TRONIC FRONTIER FOUNDATION, San Francisco, Cali-
fornia, for Amici Supporting Appellant.
OPINION
NIEMEYER, Circuit Judge:
Elaine Cioni was convicted of five electronic communica-
tions 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 comput-
ers, 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 misde-
meanors 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 obtain-
ing access to communications in electronic storage, in viola-
tion 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
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telephone calls), thus elevating her conviction from a misde-
meanor 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 fel-
onies, 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. Nonethe-
less, 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 anony-
mous 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,
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mobile telephone, his wife Maureen’s telephone, and the tele-
phones 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 per-
sonal 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 pass-
word 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 travel-
ling. 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 origi-
nated 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 inves-
tigated by Long & Foster, which sought to identify the call-
er’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 intru-
sions, and to Scott’s whereabouts. Long & Foster then pro-
vided 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 exten-
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sive investigation and ultimately determined that the harass-
ing calls were made not by Scott but by Cioni and her long-
time 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, indi-
cated 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 tech-
nology 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. Pay-
ment 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 third-
parties’ e-mail passwords surreptitiously. Some of the pay-
ments to yourhackerz.com were made by Cioni using Thorn’s
credit card, with Thorn’s permission, so as to "hide the paper
trail."
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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 pur-
chase 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 evi-
dence. 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 mes-
sages 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 resi-
dence via the U.S. Postal Service. But Cioni denied having
viewed any unread e-mail messages or having had any inten-
tion 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, fol-
lowed by 2 years of supervised release.
This appeal followed.
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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, communi-
cations 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 dou-
ble 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 judg-
ment on the lesser included misdemeanor charges."
Count 2 charges that Cioni accessed a computer in inter-
state 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 communica-
tions) stored on that protected computer, by means
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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 further-
ance 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. None-
theless, 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 Mau-
reen 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," "tanta-
mount 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,
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___ 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 alleg-
ing 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 read-
ing.
The government concedes the problem, stating:
The evidence presented at trial more than supports a
conviction under [Count 2]: it showed that the defen-
dant did, in fact, access AOL using a hacker-
provided password and obtained unopened e-mail.
However, there was no evidence that the defendant
committed this offense "in furtherance of any" sepa-
rate 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).
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* * *
[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, impli-
cating double jeopardy principles, and that therefore the fel-
ony conviction on Count 2 must be vacated, and, as requested
by Cioni, the count remanded for entry of a simple misdemea-
nor 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 viola-
tion of the laws of the United States; that is, CIONI
intentionally attempted to access, without authoriza-
tion, a protected computer operated by AOL within
the Eastern District of Virginia and obtain informa-
tion contained in [Patricia Freeman’s] electronic
mail account by means of interstate electronic com-
munications from Tennessee and elsewhere, in fur-
therance 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
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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 recita-
tion 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 con-
nection at the Defendant’s then-residence in Tennes-
see 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 Free-
man’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), sec-
tion 2701 does not, see 18 U.S.C. § 2701(a). Section 2701
requires that the person actually access a facility without
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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 sup-
port of its convictions on Count 1 (conspiracy, in violation of
18 U.S.C. § 371) and Count 6 (unauthorized access of an elec-
tronic 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 consider-
ing this argument, we view the evidence in the light most
favorable to the government and determine whether substan-
tial 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 e-
mail accounts in violation of § 1030(a), committed in further-
ance 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 elec-
tronic communications crimes, and the proof of record sup-
ports 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
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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 con-
spiracy by permitting Cioni to use Thorn’s credit card to pur-
chase 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 further-
ance of accessing unread e-mail messages and making tele-
phone calls to "harass, annoy, and harm" Enger and his
family. And the evidence again showed that Cioni did, with-
out 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 surveil-
lance of them. Viewing this evidence in the light most favor-
able to the government, it was sufficient to show that Cioni
conspired unlawfully to access computers and electronic stor-
age 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 con-
spiracy 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 fur-
therance 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 tele-
phone 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 facili-
tated the harassing telephone calls by supplying the ammuni-
tion that made the calls harassing and threatening.
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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 pro-
ceed pro se.
After Cioni was arraigned, she hired private counsel to rep-
resent 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. Even-
tually, 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 per-
formed "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 sentenc-
ing"; 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 dif-
ficulties 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
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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 discus-
sion, 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
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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 Inter-
net service providers and telephone companies linking her
directly to the e-mail intrusions and harassing calls. More-
over, much of the information was, in any event, tied to spe-
cific 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 exculpa-
tory 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 circum-
stances, 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 cal-
culus 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 e-
mails 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 com-
munications in electronic storage would be found at her office
and home, particularly in light of the considerable circumstan-
tial evidence regarding access to e-mail accounts in the affida-
vits. 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.
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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 individual-
ized questions. Cioni does not, however, provide any author-
ity 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 irregu-
larity. 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 Com-
merce Clause. This argument lacks any merit. It is well estab-
lished that Congress has the power to regulate interstate
communications networks, which generally fall under the "in-
strumentalities 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 sex-
ual misconduct" and that no sexual misconduct was at issue
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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 sec-
ond, 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 individual-
ized 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 mis-
demeanor convictions, as requested by Cioni. We also vacate
Cioni’s sentence and remand for resentencing in light of the
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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
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