## Facts

- Bernadette H. Sablan, a former Bank of Hawaii employee in Agana, Guam, was fired for circumventing security procedures to retrieve files.
- In the early morning of August 15, 1992, after drinking at a bar, Sablan went to the closed bank, entered through an unlocked loading dock door, and went to her former work area using a retained key.
- She used an old password to access the bank’s mainframe computer without authorization.
- The parties disputed her actions after access: Sablan claimed she merely opened files and logged off; the government alleged she altered and deleted files.
- The resulting conduct caused severe damage to several bank files.
- Sablan was charged under the 1988 version of 18 U.S.C. § 1030(a)(5) (Computer Fraud and Abuse Act).
- The district court denied her motion to dismiss, ruling the statute required intent only as to unauthorized access, not as to damage.
- Sablan entered a conditional guilty plea preserving appellate challenges to statutory interpretation and constitutionality.
- At sentencing, the district court applied U.S.S.G. § 2F1.1, enhanced for loss amount, and ordered restitution including significant repair, programming, and investigative costs.

## Issues

1. Under the 1988 version of 18 U.S.C. § 1030(a)(5), does “intentionally” require proof that the defendant intended to cause damage, or only that the defendant intentionally accessed a protected computer without authorization?
2. Is § 1030(a)(5) unconstitutional because it lacks an express mens rea requirement as to the “damage” element?
3. Did the district court err in calculating “loss” for sentencing enhancements under U.S.S.G. § 2F1.1 based on system repair and restoration expenses?
4. Did the restitution order improperly include categories of costs not authorized as restitution for the offense of conviction?

## Decision

- The Ninth Circuit held that, under the 1988 version of § 1030(a)(5), “intentionally” modifies only the unauthorized access element; the government need not prove intent to cause damage.
- The court rejected the constitutional challenge, concluding that intentional unauthorized access supplies sufficient culpability even if damage is treated as a consequence that must occur in fact.
- The court affirmed the district court’s loss calculation used to enhance the sentence under U.S.S.G. § 2F1.1, including direct costs of assessing, restoring, and verifying files.
- The court reversed and remanded the restitution award for recalculation because the order included costs beyond what the restitution statute permitted.

## Legal Principles

- When a criminal statute places a mens rea term before an access clause and then describes harm “by means of such conduct,” the mens rea may apply only to the access element, with resulting damage treated as a required consequence rather than a separately intended result.
- For the 1988 version of 18 U.S.C. § 1030(a)(5), the government must prove intentional unauthorized access and actual resulting loss or damage, but not a specific intent to cause that damage.
- A statute can satisfy constitutional mens rea requirements where the prohibited conduct involves intentional unauthorized access; Congress may attach liability for resulting harm without requiring proof the defendant intended the harm.
- Sentencing “loss” under U.S.S.G. § 2F1.1 may include direct costs reasonably incurred to assess, repair, restore, and verify damage caused by the offense.
- Restitution is narrower than guideline loss and must be limited to amounts authorized by the restitution statute and closely tied to the offense of conviction; consequential or certain investigative costs may be excluded.

## Conclusion

The Ninth Circuit affirmed Sablan’s conviction and sentence, holding that § 1030(a)(5) required intent only for unauthorized access and was constitutional on that basis; it upheld the guideline loss calculation but remanded for a narrower restitution award excluding improperly included costs.


United States v. Sablan, 92 F.3d 865 (9th Cir. 1996)