Nature of the Case
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Facts
D was employed as a Contact Representative in the Boston office of the Taxpayer Services Division of the IRS. D routinely accessed information from one of the IRS's computer systems. D was able to retrieve, to his terminal screen in Boston, income tax return information regarding virtually any taxpayer. D signed an acknowledgment of receipt of the IRS Rules of Conduct, which contained the following rule: Employees must make every effort to assure security and prevent unauthorized disclosure of protected information data in the use of Government-owned or leased computers. In addition, employees may not use any Service computer system for other than official purposes. In 1992, D carried out numerous unauthorized searches of IDRS files. Among others, D accessed information regarding: the tax returns of two individuals involved in the David Duke presidential campaign; the joint tax return of an assistant district attorney (who had been prosecuting D's father on an unrelated felony offense) and his wife; the tax return of Boston City Counselor Jim Kelly's Campaign Committee (Kelly had defeated D in the previous election for the Counselor seat for District 2); the tax return of one of his brothers' instructors; the joint tax return of a Boston Housing Authority police officer, who was involved in a community organization with one of D's brothers, and the officer's wife; and the tax return of a woman D had dated a few times. D never did anything more than knowingly disregard IRS rules. D did state at a social gathering in 'early 1992' that 'he intended to use some of that information to build dossiers on people' involved in 'the white supremacist movement.' D did not perform any unauthorized searches after 1992. A grand jury returned an indictment against him on ten counts of federal wire fraud under 18 U.S.C. §§ 1343, 1346, and four counts of federal interest computer fraud under 18 U.S.C. § 1030(a)(4). The indictment alleging wire fraud states that D defrauded the IRS of confidential property and defrauded the IRS and the public of his honest services by using his valid password to acquire confidential taxpayer information. The computer fraud charges stated that D obtained something of value, beyond the mere unauthorized use of a federal interest computer, by performing certain searches -- searches representing a subset of those making up the mail fraud counts. D filed a motion to dismiss the indictment, a motion to strike surplusage from the indictment, and a motion for discovery from the government relating to a claim of selective prosecution. All of the motions were rejected. The district court denied D's motion for judgment of acquittal and the jury returned a verdict finding D guilty on all thirteen counts. D challenges the denial of his motion to dismiss the indictment, including the rejection of a selective prosecution claim, the finding that he had not made out a prima facie case of selective prosecution, the admission at trial of allegedly inflammatory evidence of D's white supremacist activities, the denial of his motion for acquittal, the jury instructions, and the sentencing determination.
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