Opinion
8:17-cv-1314-T-33MAP 8:04-cr-321-T-30MAP
02-16-2018
CHARLES DANIEL MAYE, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
ORDER
VIRGINIA M. HERNANDEZ COVINGTON UNITED STATES DISTRICT JUDGE
This Order analyses why Charles Daniel Maye is not entitled to a petition for writ of error coram nobis. Maye is represented by counsel.
PROCEDURAL HISTORY
A jury found Maye guilty of counts one, two, four, and five of the Superseding Indictment. Count one charged Maye with conspiracy to access a computer without authorization for private financial gain, in violation of 18 U.S.C. § 371. Count two changed Maye with accessing a National Crime Information Center (NCIC) computer without authorization, in violation of 18 U.S.C. §§ 1030(a)(2)(B) and (c)(2)(B) and (ii) and 18 U.S.C. § 2 (offense ending July 30, 1999) . Count four charged Maye with accessing an NCIC computer without authorization in violation of 18 U.S.C. §§ 1030(a)(2)(B) and (c)(2)(B) and (ii) and 18 U.S.C. § 2 (offense ending August 11, 2003). Count five charged May be making false statements in violation of 18 U.S.C. § 1001(a)(2). (Doc. cr-166).
On July 24, 2006, this Court sentenced Maye to 97 months incarceration and 36 months supervised release. The Court ordered him to pay a $15K fine. (Id.). Maye filed a notice of appeal (Id. at 168), which he voluntarily dismissed. (Id. at 177).
In his petition for coram nobis, Maye alleges that: (1) he is factually innocent; (2) a Ninth Circuit case, United States v. Nosal, 676 F.3d 854 (9th Cir. 2012), contrary to binding Eleventh Circuit precedent, more appropriately applies to his conduct; and (3) 18 U.S.C. § 2722 preempted 18 U.S.C. § 1030.
Maye's arguments fail because he has not met his procedural or substantive burdens, and because he is factually and legally guilty.
Background Information related to the Criminal Charges
In December 2004, Maye, then a sworn deputy sheriff with the Hillsborough County Sheriff's Office, and codefendant Leroy Collins, were named in a five-count Superseding Indictment. The National Crime Information Center (NCIC) is a national computerized database maintained by the Federal Bureau of Investigation (FBI) and located in West Virginia. The NCIC database collects and maintains records related to criminal histories of millions of people as well as persons and vehicles sought by law enforcement agencies nationwide. Access to the NCIC database is restricted to law enforcement officers authorized to access it for law enforcement purposes.
The United States assists states in maintaining similar records systems that are linked to, and part of, the NCIC system. Florida maintains such a system called the Florida Crime Information Center (FCIC). The Florida Department of Law Enforcement (FDLE), Division of Criminal Justice Information Services (CJIS), is the central repository for criminal history information for Florida. Collectively, the NCIC and FCIC databases, in addition to criminal history information, also contain private information including home address and social security number information.
State and local law enforcement agencies, including the Hillsborough County Sheriff's Office, are permitted under strict guidelines to access the NCIC database for law enforcement purposes. Those law enforcement agencies are required to control access to the NCIC database and to ensure that the NCIC database will be accessed only for lawful criminal justice purposes. Law enforcement operators who are permitted to access the NCIC database are trained regarding the strict requirements for the NCIC use.
Prior to April 1996, Maye completed numerous training sessions on the lawful uses of the NCIC database. He was a certified Limited Access Terminal Operator, and was knowledgeable about the strict requirements for its use.
Law enforcement officers with the Hillsborough County Sheriff's Office could access the NCIC data base via computers located in their workplace or in patrol vehicles via mobile data terminals.
Collins was the owner of a migrant work camp located in Wimauma, Florida. From approximately 1996 through and including 2004, Maye collected rent for Collins from migrant workers living in the camp. Collins compensated Maye for this work. Maye had an ongoing financial relationship with Collins. (Doc cr-6).
The Grand Jury charged Maye with:
1. conspiracy to intentionally access a computer without authorization and in excess of authorization, to obtain information from a department or agency of the United States, for the purpose of private financial gain and in furtherance of criminal acts of extortion, in violation of 18 U.S.C. § 1030(a)(2)(B), and knowingly and willfully making materially false statements to an FBI agent, in violation of 18 U.S.C. § 1001(a)(2), all in violation of 18 U.S.C. § 371 (Count One);
2. intentionally accessing a computer -- the NCIC (National Crime Information Center) computer database -- without authorization and in excess of authorization, to obtain information from a department or agency of the United States, for the purpose of private financial gain and in furtherance of criminal acts of extortion in violation 18 U.S.C. § 1030(c)(2)(B) (i) and (ii) and 18 U.S.C. § 2 (Counts Two and Four); and
3. knowingly and willfully making false statements during an interview with a Special Agent of the FBI, in violation of 18 U.S.C. § 1001(a)(2) (Count Five).(Id.).
As discussed supra, the jury found Maye guilty of several charges. (Id. at 152). Maye was released from federal custody September 10, 2013, and completed his supervised release September 9, 2016. Since 2007, Maye has repeatedly -- and unsuccessfully -- attacked his conviction and sentence.
Maye's 28 U.S.C. Section 2255 Motions To Vacate
In his first Section 2255 motion, Case No. 8:07-cv-653-T-30EAJ, Maye claimed prosecutorial misconduct due to selective prosecution; presentation of false evidence; violations of his civil and due process rights; excessive sentence; and ineffective assistance of counsel due to counsel's failure to move to sever and failure to allege violation of the statute of limitations. Maye withdrew that motion. (Id. at Docs. 4,5).
A few months later, Maye filed a Section 2255 motion that this Court struck. See Case No. 8:07-cv-1258-T-30EAJ. Maye then filed an amended motion to vacate, raising nine grounds for relief:
Ground One: counsel failed to object to the introduction of prejudicial evidence at trial.
Ground Two: counsel failed to move for dismissal of the Superseding Indictment prior to trial despite the lack of “ends of justice” findings by the court when granting Maye's requests for continuances.
Ground Three: counsel failed to move for dismissal of the Superseding Indictment even though it “substantially broadened” the original charges.
Ground Four: counsel failed to raise a claim of prosecutorial misconduct.
Ground Five: counsel failed to call key defense witnesses.
Ground Six: counsel failed to “flesh out” government witness Gregory Brown's bias against Maye.
Ground Seven: counsel was ineffective due to the cumulative prejudicial effects of the alleged errors set forth in Grounds 1, 4, 5, and 6.
Ground Eight: Maye's claim of “actual innocence” allowed the foregoing grounds to be heard despite failure to raise them on direct appeal.
Ground Nine: counsel was ineffective in advising Maye that he had no appealable issues after trial. (Id. at Doc. 8).
The Court denied Maye's amended motion in February 2008. (Id. at Doc. 25). The court denied Maye's application for a certificate of appealability, as did the Eleventh Circuit. (Id. at Docs. 29, 31, 32). The Eleventh Circuit also denied Maye's motion for reconsideration because Maye “failed to make a substantial showing of the denial of a constitutional right.” (Id. at Doc. 33).
Maye then moved to reopen his 2007 § 2255 proceeding by filing a Fed.R.Civ.P. Rule 60(d)(1) motion in Case No. 8:10-cv-2327-T-30EAJ. Maye described the filing as an “[i]ndependent [a]ction in [e]quity,” asserting that the Court failed to address Ground Five of his amended section 2255 motion. (Id. at Doc. 1). This Court denied relief, finding that Maye was effectively pursuing a second or successive § 2255 motion without first obtaining authorization from the Eleventh Circuit. (Id. at Doc. 5). Notwithstanding that denial, Maye filed a “Motion to Take Judicial Notice of Adjudicative Facts” arguing, among other things, that “Congress did not intend 18 U.S.C. § 1030 or any of its amendments to apply to state computers or their databases,” an argument similar to one of his arguments in the present coram nobis petition. (Id. at Doc. 7). The Court denied Maye's motions. (Id. at Docs.18-24). The Court denied Maye's application for a certificate of appealability. (Id. at Docs. 25, 27). May filed a notice of appeal. (Id. at Doc. 26). The Eleventh Circuit denied Maye's application for certificate of appealability. (Id. at Doc. 33). The Eleventh Circuit also denied Maye's related appeals. (Eleventh Circuit Case Nos. 12-14819 and 14-14059).
Maye then filed a 28 U.S.C. § 2241 petition for writ of habeas corpus in the United States District Court for the Southern District of Georgia, raising arguments similar to those he raises in the present petition for writ of error coram nobis: that is, actual innocence based on new case law. That Court denied Maye's petition, which he unsuccessfully appealed. Maye petitioned for Supreme Court review, presenting two questions:
1. Should this Court exercise its discretion to interpret the Computer Fraud and Abuse Act (CFAA), codified at 18 U.S.C. § 1030, by resolving the conflict between the Ninth Circuit and the Eleventh, Fifth and Seventh Circuits on the interpretation of § 1030(e)(6)?
2. In light of the requirement of § 1030(a)(2)(B) that information be obtained from a federal database, does the Petitioner's conviction under the CFAA for accessing and obtaining information from a state database violate due process; and if so, did the lower courts violate principles established by this Court when they failed to determine whether they had federal subject matter jurisdiction, changed the statute to eliminate the jurisdictional element, and failed to retroactively apply a judicial construction of the statute that made him
factually innocent?Maye v. Haynes, 2012 WL 3805776 (July 2, 2012). On January 22, 2013, the Supreme Court denied certiorari. Maye v. Haynes, 133 S.Ct. 981 (2013).
Maye filed his final Section 2255 motion in 2013, alleging due process violations based on prosecutorial misconduct. (Case No. 8:13-cv-3104-T-30EAJ). This Court dismissed the motion, without prejudice, for lack of authorization to file a second or successive § 2255 motion. (Id. at Doc. 3). This Court denied Maye's application for a certificate of appealability. The Eleventh Circuit denied Maye's application for a certificate of appealability and denied Maye's motion to consolidate his appeal with appellate case number 14-14059. (Id. at Docs. 5, 9).
Present Petition for Writ of Error Coram Nobis
Maye's new legal argument is one of preemption, claiming that 18 U.S.C. § 2722 preempts 18 U.S.C. § 1030(a)(2)(B). Maye directly and indirectly asserts erroneous claims of factual and legal innocence (e.g., what he did was within the scope of his duties as a deputy).
Maye's and Collins' Criminal Actions
Maye and Collins met and began an ongoing financial relationship in the early 1990's. Collins was a businessman who owned a mobile home park and would often assist law enforcement. Maye worked for Collins at the mobile home park as a manager, making repairs and collecting rent. When the two men met, Collins was in the midst of a relationship with Linda Bobo. That relationship ended in 1996, and Bobo began a new relationship with James McLemore. Several months later, Maye began to access the National Crime Information Center (NCIC) and Florida Crime Information Center (FCIC) databases to acquire restricted and private information about Bobo -- at Collins' request. Maye also stopped Bobo's vehicle, gave her a warning for driving with a suspended license, and issued her a traffic citation.
Maye testified at his 2006 trial that he accessed the databases as part of an ongoing investigation of Bobo's alleged drug dealing. Maye also claimed that he asked Collins to get McLemore's tag number so that Maye could pass it along to the street crimes unit. Maye testified at trial that he never passed confidential information about Bobo to Collins. Despite Maye's alleged discretion, Collins still found Bobo's address (which she had been concealing) and caused her home to be burglarized.
Collins and others -- Willie McCrary and “Little Willie” -- claimed that Maye “ran McLemore's tag” for them after the three men spotted McLemore's vehicle in Bradenton. Maye provided Collins with McLemore's home address as well, and shortly thereafter Collins, McCrary and “Little Willie” went to that address and spoke with McLemore's then-estranged wife.
On June 16, 1996, Bobo and McLemore were returning to their home when McLemore was shot and wounded in a drive-by shooting. The shooter's vehicle was similar to one owned by Collins. Several days later, Collins called Bobo at the hospital where McLemore was being treated. Collins aggressively attempted to persuade Bobo to leave McLemore, but Bobo refused. Soon thereafter, Bobo and McLemore moved to a different address.
Between June and September 1996, Maye continued to access the NCIC and FCIC databases concerning Bobo. Specifically, he ran searches on Bobo on July 9; July 12; July 26; September 2; and September 3. Maye also requested Bobo's official driving record from the Florida Department of Highway Safety and Motor Vehicles.
In September 1996, during the time Maye was obtaining information on Bobo, Collins had dinner with Bobo and threatened to harm McLemore if Bobo refused to leave him. Bobo declined to do so. Collins told Bobo that “they'd get him to leave,” and that “he'll go if I put enough fire up his ass.” A few days later, Collins shot McLemore in the head, killing him.
Over the next two months, Collins and Maye attempted to locate Bobo. Collins and Bobo had a recorded conversation three days after McLemore's murder in which Collins continued to attempt to lure Bobo back into a relationship with him. He also claimed to have access to computer databases.
Collins told his cohort, McCrary, that Maye was going to put Bobo in jail. That month, Maye again stopped Bobo for driving with a suspended license, and arrested her. Collins paid Bobo's bond and attempted to take her from jail, but Bobo refused to leave with him.
On November 24, 1996, a man threw an unidentified caustic substance into Bobo's face, blinding her. At trial, the Government argued that Collins arranged for this attack to occur. The Government also argued that Maye made false and misleading statements to Florida Department of Law Enforcement (FDLE) officials and to the Palmetto Police Department (PPD) to cover up his involvement in the conspiracy
The conspiracy did not end there. In July 1999, Maye also accessed the NCIC and FCIC databases to acquire restricted or private information about another of Collins' former girlfriends, Angeletta Hill Benavidez Williams. Maye, Collins, and Collins' son even went to Williams' home to help Collins take Williams' truck.
In August 2003, Collins accosted another former girlfriend, Veronica Smith. Collins attempted to force Smith to disclose her home address, but she refused. A few days later, Maye searched for Smith in the NCIC and FCIC databases to acquire restricted or private information. He attempted to justify the search by claiming that it was in conjunction with an ongoing investigation, but there was no evidence of such investigation.
See Case Number 8:07-cv-1258-T-30EAJ at Doc. 25; see also Presentence Investigation Report dated July 18, 2006 ¶¶ 13-41 (more extensive facts listed therein).
The facts make clear that Maye was not acting as a deputy sheriff. The jury rejected that defense and the federal courts have consistently rejected it.
DISCUSSION
Maye fails to open the door to coram nobis relief.
A defendant may directly appeal the conviction and petition for a writ of certiorari. Appellate review is not a “second bite at the apple”: the defendant benefits from de novo scrutiny only for legal error, and, if he failed to preserve his issue in the district court, he bears a heavy evidentiary burden on attack.
Once a defendant's conviction is final, he may collaterally attack that conviction under 28 U.S.C. § 2255, but only if in custody, and then only on a subset of legal errors that pose great constitutional harm.
If collateral relief eludes him, the convicted federal defendant may try the extraordinary 28 U.S.C. § 2241 petition for writ of habeas corpus, but only if he continues to suffer a deprivation of liberty, and for an even smaller subset of claims. He must also establish that prior collateral challenge(s) were not “adequate or effective.” Each layer of subsequent review narrows the avenues for relief, and includes new and significant procedural and substantive hurdles. Maye has exhausted each of the preceding avenues of potential relief and, where his efforts were directed at the merits, lost each time.
A convicted defendant who no longer suffers any restraint on his liberty generally has no avenue to challenge a truly historical conviction. “The reason to bend the usual rules of finality” goes “missing when liberty is not at stake.” United States v. Keane, 852 F.2d 199, 202-03 (7th Cir. 1988); see Lane v. Williams, 455 U.S. 624, 630-31 (1982). “Courts must conserve their scarce time to resolve the claims of those who have yet to receive their first decision.” Keane, 852 F.2d at 203.
The last potential action for a person who has served his sentence, but still seeks to challenge his convictions, is the writ for error coram nobis. The All Writs Act, 28 U.S.C. § 1651(a), provides federal courts the authority to issue writs of error coram nobis. United States v. Mills, 221 F.3d 1201, 1203 (11th Cir. 2000). “A writ of error coram nobis is a remedy available to vacate a conviction when the petitioner has served his sentence and is no longer in custody.” United States v. Peter, 310 F.3d at 712. See also, United States v. Rahim, - F. App'x. -, 2018 WL 580618, at *2 (11th Cir., Jan. 29, 2018).
Coram nobis is the most narrow challenge because “courts may consider Coram nobis petitions ... only where no other remedy is available and the petition presents sound reasons for failing to seeks relief earlier.” Mills, 221 F.3d at 1203-04; see also Alikhani v. United States, 200 F.3d 732, 734 (11th Cir. 2000) (coram nobis available only when there “is and was” no other avenue of relief). In other words, unless the petitioner establishes that he could not have raised his argument while still suffering a deprivation of liberty, he cannot raise it when he is no longer in custody. See, e.g., Jackson v. United States, 375 F. App'x. 958, 960 (11th Cir. 2010); United States v. Spellissy, 513 F. App'x. 915, 916 (11th Cir. 2013); see also United States v. Obasohan, 318 F. App'x. 798, 800 (11th Cir. 2009). Maye's petition raises arguments and issues already raised in various other pleadings, or arguments in support of a request to excuse his failure to do so. Either way, Maye fails to meet his threshold burden for Coram nobis relief.
The coram nobis door is heaviest to open for relief because the petitioner must establish not only that the purported error in his long-closed criminal case was constitutional, but that it is truly “fundamental.” See United States v. Addonizio, 442 U.S. 178, 186 (1979); Moody v. United States, 874 F.2d 1575, 1576 (11th Cir. 1989) (Coram nobis jurisdiction only available for error “of the most fundamental character”); Ramdeo v. United States, 2017 WL 6611047 *3 (S.D. Fla., Oct. 11, 2017). The error must call into question not just the propriety of the petitioner's past conviction, but the very propriety of the past criminal proceeding itself, rendering that proceeding potentially “irregular and invalid.” Mills, 221 F.3d at 1203; see Alikhani, 200 F.3d at 734; United States v. Peter, 310 F.3d 709, 712 (11th Cir. 2002); see also United States v. Denedo, 556 U.S. 904, 915-16 (2009). Maye's allegations fail this test.
The Eleventh Circuit has stated that any truly fundamental defect that might merit Coram nobis review must concern -- as it did under the original understanding of Coram nobis -- an “error of fact,” not law, that has “never [yet] been put in issue” and that “lies outside the record that the court of judgment had before it.” See Alikhani, 200 F.3d at 734; Myles v. United States, 170 F.2d 443, 444 (5th Cir. 1948); see also United States v. Morgan, 346 U.S. 502, 507-11 & n.21 (1954) (describing original purpose of the writ and use in accordance with availability “at common law to correct errors of fact”); Blake, 395 F.2d at 758-59; cf. Addonizio, 442 U.S. at 186 (“Coram nobis jurisdiction has never encompassed all errors of fact.”). The Eleventh Circuit has “recognized that it is difficult to conceive of a situation in a federal criminal case today where Coram nobis relief would be necessary or appropriate.” Roggio v. United States, 597 F. App'x. 1051, 1052 (11th Cir. 2015) (citations omitted).
The Court has found one instance where Coram nobis was appropriate. In Peter, the Eleventh Circuit found that the district court lacked subject-matter jurisdiction. By its nature, a jurisdictional error is of “such a fundamental character as to render proceedings irregular and invalid.” Peter, 310 F.3d at 715. In Peter, the Court granted Coram nobis relief where the district court did not have jurisdiction to accept the defendant's guilty plea because, based on the retroactive effect of the Supreme Court's decision that licenses were not “property” under the mail fraud statute, the defendant's actions never violated the mail fraud statute and did not constitute criminal conduct. Id. See United States v. Spellissy, 2017 WL 4387165, at *1 (11th Cir., Oct. 3, 2017)
Otherwise, neither the Eleventh Circuit nor the Supreme Court have suggested that any error, other than the complete deprivation of counsel (a common exception to absolute rules against relief) -- or a mistake of fact under which everyone labored during the case -could support a Coram nobis petition. Myles, 170 F.2d at 444 (“[T]he errors of fact capable of being corrected, which affect the validity of the legal proceeding, are of a very limited class. The errors to which the Coram nobis writ applies ordinarily are not errors of the Court, but mistakes or oversights of the parties that vitiate the judgment.”); see also Mayer, 235 U.S. at 67-68.
Thus, to pass through the Coram nobis door, a petitioner must surmount formidable threshold barriers. Even if the petitioner surmounts the barriers, this Court may deny the Coram nobis petition unless doing so abuses the Court's discretion. See Alikhani, 200 F.3d at 734.
Coram nobis is a demanding standard because the petitioner must hurdle, during the merits assessment of his petition, all barriers to relief that would have applied were he to have attacked the Court's judgment at any previous point. See, e.g., Chaidez v. United States, 568 U.S. 342, 358 (2013) (Coram nobis not available due to Teague nonretroactivity); Peter, 310 F.3d at 712 (procedural default did not bar relief only because error was of subject-matter jurisdiction). Maye fails to address all of these barriers to relief. In fact, he acknowledges that he cannot meet all of them including issues previously raised: “The Ninth Circuit's decision in Christenson, and the Second Circuit's decision in Valle confirms what the Petitioner begged the courts to recognize inartfully in his § 2255 motion and in each succeeding post judgment motion.” (Doc. 1 at 25). At best, Maye tries to excuse his inability to surmount all of the procedural bars (e.g., Id. at 26, n.10) or argues that his petition raises a jurisdictional claim that would save him (e.g., arguing it is irrelevant that he previously attacked his conviction under 2255 and other post judgment motions because the statute proscribing his offense is preempted by 18 U.S.C. § 2722). (Id. at 26).
Maye's Preemption Argument
Maye's preemption argument -- one federal statute preempting another -- arguably invokes Coram nobis subject matter jurisdiction, thus surviving the procedural barriers. However, Maye's argument fails.
Where other avenues of relief are available, a district court may consider Coram nobis petitions only when a petitioner presents sound reasons for failing to seek relief earlier. Mills, 221 F.3d at 1204. By its nature, a jurisdictional error is of “such a fundamental character as to render proceedings irregular and invalid.” Peter, 310 F.3d at 715 (quotation omitted).
Maye's argument that he did not commit a crime fails.
The core of Maye's argument is that his conduct was not a crime under the charging statute, 18 U.S.C. § 1030. He sweeps all of his convictions under section 1030 and makes two main arguments: (1) what he did was factually legal under United States v. Nosal, 676 F.3d 854 (9th Cir. 2012); and (2) as applied to his conduct, 18 U.S.C. § 2722 preempted § 1030(a)(2)(B) and, therefore, his convictions are illegitimate. Both arguments fail.
Maye's first factual argument is that his conduct did not violate section 1030(a)(2)(B) because he was acting in the course of his duties as a deputy. (See Case no. 8:17-cv-1314-T-33MAP, Doc. 1 at 2, 3, 8, 9, 16, 19). Maye argues that his defense at trial -- that he accessed the databases within the scope of his duties as a deputy -- was true, notwithstanding the jury's verdict and the court's repeated findings to the contrary. (See Id. at 2 [“No prosecutor or court has even suggested that it (the statute) could apply in the context in which it was applied here of [sic] a state law enforcement officer accessing a motor vehicle database during the course of his duties as a police officer.”]).
However, the facts, proven at trial and found by the jury, show that Maye's conduct was well outside the scope of his duties as a deputy. (See, e.g., 8:07-cv-1258-T-30EAJ, Doc. 25 at 3-6 [facts section]; PSR ¶¶ 12-41). Maye, then a sworn law enforcement officer, accessed a private, law enforcement database to endanger another or to profit. Id. A writ of error Coram nobis is an inappropriate vehicle to re-litigate Maye's failed trial defense.
Maye also bundles into his argument an irrelevant and incorrect factual assertion about the nature of the NCIC. Maye incorrectly asserts that the NCIC data was public information. Here, Maye exceeded his access, authorized only for law enforcement purposes, to the NCIC by abusing the system throughout the course of the conspiracy. Maye offers no legal basis for his claim that the information he accessed must be non-public for him to have committed a crime.
Maye is also wrong about NCIC data. This Court need look no further than the indictment and warrant in Maye's criminal case to understand why Maye's NCIC assertions about warrants being public records is incorrect. The indictment (Doc. cr-1) in Maye's case generated a warrant. (Doc. cr-10). The Indictment and warrant were placed under seal. (Doc. cr-8). While some warrant information is accessible to the public (not through NCIC but typically by and through the entering agency or court records), not all is (e.g., sealed warrants in NCIC). (See Attachments B [affidavit from NCIC] and C [affidavit from NCIC/FCIC].) The attachments to Maye's own petition show that he is wrong about the nature of NCIC. (See Doc. cv-1 at 53 (“Access Constraints: restricting access to those with a need to know to perform official duties.”); id. at 56 (“Data in NCIC files is exchanged with and for the official use of authorized officials of the Federal Government, the States, cities, penal and other institutions, and certain foreign governments.”). Describing the warrant information as simply the existence of a warrant is a misnomer because, through NCIC, a warrant frequently includes information about extradition; whether someone is considered armed and dangerous; whether warrant is temporary (an entry indicating that someone is wanted by an agency but no formal arrest warrant has been obtained yet); and even foreign warrants (Canadian). (See Criminal Justice “Hot” Files, United States Department of Justice, National Institute of Justice (Nov. 1986) (https://www.bjs.gov/content/pub/pdf/cjhf.pdf); see also Doc. cv-1 at 54-55.)
In sum, Maye's NCIC arguments reflect a misunderstanding of this critical law enforcement tool.
Maye also asserts that, based on Nosal, 676 F.3d 854, his conduct (as he describes it, not as the jury and court found it) did not fall within the ambit of the Computer Fraud and Abuse Act (CFAA), 18 U.S.C. § 1030. In Nosal, the Ninth Circuit held “that ‘exceeds authorized access' in the CFAA is limited to violations of restrictions on access to information, and not restrictions on its use.” Other courts -- including the Eleventh Circuit, as Maye acknowledged in his petition for writ of certiorari in the § 2241 litigation, see Maye v. Haynes, 2012 WL 3805776 -- have split on the meaning of exceeding authorization under the CFAA. Maye was able to conduct searches in NCIC to determine if individuals had outstanding warrants, or if vehicles were reported stolen -- information from a federal database to which a layperson would not have access. Whether Maye's searches resulted in negative responses (i.e. ‘no records found') is of no moment. Maye's search was not authorized because those negative responses confirmed information not publicly available to a layperson. See, e.g., United States v. DeLeon, 9 F.3d 1535, n.3 (1st Cir. 1993) (dicta) (“The N.C. I.C. report contained only a single piece of (negative) information: it indicated that the handgun was not listed as stolen property.”).
In 2010, the Eleventh Circuit joined other federal circuits taking a broader view of the statute, holding that when the employer had a policy limiting an employee's computer access for business purposes, an employee who accessed a database for an improper purpose exceeded authorized access. United States v. Rodriguez, 628 F.3d 1258, 1263 (11th Cir. 2010); see also Int'l Airport Ctrs., L.L.C. v. Citrin, 440 F.3d 418, 420-21 (7th Cir. 2006); United States v. John, 597 F.3d 263, 272 (5th Cir. 2010).
Maye's conduct falls under the ambit of the CFAA as interpreted by the Eleventh Circuit in Rodriguez, supra. Maye's conduct also fits under the narrower interpretations of the CFAA: while he corruptly used the database information, Maye exceeded his authorized access as part of the conspiracy, violating the restrictions on access to information. (See 8:07-cv-1258-T-30EAJ, Doc. 25 at 3-6; see also PSR ¶¶ 13-41.)
Finally, Nosal does not overturn circuit precedent that applied during Maye's trial, direct appeal, or first § 2255 motion. If a claim relies on a case that was decided after the petitioner's conviction and sentence became final, and the case is not retroactive, then the petitioner “has not suffered such compelling injustice that would deserve relief pursuant to a writ of error Coram nobis.” United States v. Swindall, 107 F.3d 831 (11th Cir. 1997); see also United States v. Williams, 158 F. App'x. 249 (11th Cir. 2005).
Maye's argument, couched as a “legal” argument, is an attempt to re-write established facts. Coram nobis is not an opportunity to raise a new defense or, as Maye does here, re-assert failed defenses. Maye's argument is not meritorious and does not fit under the rubric of Coram nobis.
Section 2722(a) does not preempt Section 1030(a)(2)(B)
Maye argues that by enacting section 2722(a), Congress preempted section 1030(a)(2)(B) as applied to Maye's conduct and, therefore, Maye did not commit a federal crime. Maye bases his assertion on his mistaken notion that, because his conduct could be prosecuted under many different federal criminal statutes, the section 1030 charges must, therefore, be preempted. Most federal crimes are susceptible to prosecution under any number of federal statutes. That fact alone does not invoke preemption. Maye must prove that a “positive repugnancy” exists between the two statutes to show preemption. United States v. Tomeny, 144 F.3d 749, 752 (11th Cir. 1998) (citing United States v. Batchelder, 442 U.S. 114, 122-24 (1979)). Maye fails to meet that burden.
Section 2722(a) applies only to certain motor vehicle records. Section 1030(a)(2)(B) applies to those who intentionally access a computer without authorization, or exceed authorized access, and thereby obtain information from any department or agency of the United States, i.e., what Maye did. See, e.g., United States v. Salum, 257 F. App'x. 225, 230 (11th Cir. 2007) (explaining in affirming that, “by providing information from the NCIC database, [former police officer] Salum exceeded his authority by accessing it for an improper purpose.”). Maye cites to nothing and offers nothing to meet his burden to prove the “positive repugnancy.” There is none. Maye's key claim -- that section 1030(a)(2)(B) was preempted -- fails even minimal scrutiny.
CONCLUSION
A petition for writ of error Coram nobis attacks errors of the most fundamental nature. Maye has neither alleged one nor met his heavy burden to prove one.
Accordingly, the Court orders:
That Maye's petition for writ of error Coram nobis is denied. The Clerk is directed to close this case.
Counsel of Record