Case 2:13-cr-00082-KJM Document 170 Filed 06/14/16 Page 1 of 4
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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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UNITED STATES OF AMERICA,

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No. 2:13-cr-82-KJM

Plaintiff,
v.

ORDER

MATTHEW KEYS,
Defendant.

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Defendant requests that the court postpone his June 15, 2016 surrender date

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pending his appeal of his conviction and sentence. Amend. Mot. for Release Pending Appeal

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(Mot.), ECF No. 163. His motion was filed on June 7, 2016, and the United States opposed on

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June 13, 2016. ECF No. 169. For the following reasons, the court DENIES the motion.

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Defendant’s sentencing hearing was held on April 13, 2016. ECF No. 153. In

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determining the sentence, the court allowed defendant to self-surrender with the court retaining

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jurisdiction to modify the self-surrender date upon a showing of good cause by either side. Id.

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The court’s determination of defendant’s current motion, whereby defendant seeks to delay his

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self-surrender date, is governed by 18 U.S.C. § 3143(b). Section 3143(b) requires detention of a

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sentenced defendant unless the court finds an exception applies.

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Exceptions to detention are available where the court finds: (1) by clear and

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convincing evidence that defendant is not likely to flee or pose a danger to others; (2) that the

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appeal is not being taken for delay; and (3) that the appeal “raises a substantial question of law or

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fact likely to result in . . . reversal, . . . an order for a new trial, . . . a sentence that does not

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include a prison term, or . . . a reduced sentence to a term of imprisonment less than the total time

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already served plus the expected duration of the appeal process.” 18 U.S.C. § 3143(b). “A

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‘substantial question’ is one that is fairly debatable or fairly doubtful.” United States v. Wheeler,

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795 F.2d 839, 840 (9th Cir. 1986) (citing United States v. Handy, 761 F.2d 1279, 1283 (9th Cir.

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1985)). As the moving party, defendant bears the burden of establishing that such an exception

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exists. See United States v. Montoya, 908 F.2d 450, 451 (9th Cir. 1990). Defendant’s motion

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argues all three prongs. Assuming without deciding that defendant satisfies the first two prongs,

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the court finds the third dispositive.

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Defendant argues the United States proved a different and irrelevant crime at trial

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other than the crime charged in the Superseding Indictment (Indictment). Mot. at 3–4. Defendant

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also argues that there was insufficient evidence of damage, that the court applied an incorrect

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Computer Fraud and Abuse Act (CFAA) loss instruction, and lastly, that there was insufficient

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evidence to establish one of the elements of conspiracy or to support a finding of a single

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overarching conspiracy. Id. at 6–7. In order for an issue to be “substantial,” it must be one that is

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“fairly debatable,” or “fairly doubtful.” Wheeler, 795 F.2d at 840. In other words, “a ‘substantial

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question’ is one of more substance than would be necessary to a finding that it was not frivolous.”

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Handy, 761 F.2d at 1283. The court is unpersuaded that defendant has met this bar.

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The United States correctly notes that Count Two of the Indictment is broader in

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terms of time and conduct than the charged defacement of The Los Angeles Times website. ECF

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No. 44 at 5. Specifically, Count Two charged that between October 28, 2010 and January 5,

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2011, defendant “knowingly transmitted a program, information, code, and command, and, as a

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result of such conduct, intentionally caused damage without authorization to a protected computer

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. . .” Id. Defendant argues there was “a variance . . . [where] the charging terms of the indictment

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are left unaltered, but the evidence offered at trial proves facts materially different from those
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 Case 2:13-cr-00082-KJM Document 170 Filed 06/14/16 Page 3 of 4
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alleged in the indictment.” Mot. at 3 (citing United States v. Von Stoll, 726 F.2d 584, 586 (9th

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Cir. 1984)). But the United States presented evidence of defendant’s conduct in illicitly

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procuring an email list he used to send a series of emails to FOX40 staff and contestants, all

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within the charged time frame. Both the website defacement and the obtaining of the e-mails

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breached the computer-based content management system (CMS) of the victim, Tribune

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Company.

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Defendant also argues that because the data was backed up, there was no damage;

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the court finds this argument unpersuasive. The inability of an employee such as Samantha

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Cohen to log in to work, and the employer’s inability to promptly change usernames and

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passwords, and resecure the compromised system all constitute damage. Shurgard Storage Ctrs.,

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Inc. v. Safeguard Self Storage, Inc., 119 F. Supp. 2d 1121, 1126–27 (W.D. Wash. 2000).

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Defendant further argues the court improperly allowed testimony and instructions that supported

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and provided an overbroad definition of loss. Defendant does not identify any testimony with

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particularity. And the final jury instruction on loss defined it as “any reasonable cost to any

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victim, including the cost of responding to an offense, conducting a damage assessment, and

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restoring the data, program, system, or information to its condition prior to the offense.” ECF No.

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118, Instruction No. 20. This instruction tracked the exact language of the statute relied on in the

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Indictment, 18 U.S.C. § 1030(e)(11).

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Defendant argues additionally that evidence was insufficient to establish he took a

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substantial step towards committing a crime, and thus that there was an overarching conspiracy.

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Again, the court is unpersuaded. The United States introduced into evidence a series of computer

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codes showing attempted logins to the CMS, and chats between defendant and sophisticated

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hackers, including one who succeeded in modifying The Los Angeles Times website. The

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evidence was sufficient to “cross the line between preparation and attempt by unequivocally

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demonstrating that the crime [would] take place unless interrupted by independent

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circumstances.” United States v. Goetzke, 494 F.3d 1231, 1237 (9th Cir. 2007); see also

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Hernandez-Cruz v. Holder, 651 F.3d 1094, 1102 (9th Cir. 2011). Defendant has not explained

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how the difference between one overarching conspiracy and multiple conspiracies raises a

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substantial issue of law or fact likely to result in a reversal or new sentence.

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Accordingly, the court DENIES defendant’s motion. Defendant shall surrender no
later than 2:00 PM on June 15, 2016 as previously ordered.
IT IS SO ORDERED.
DATED: June 14, 2016.

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UNITED STATES DISTRICT JUDGE

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