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A man convicted of planting a computer “time bomb” that crippled operations at New Jersey-based Omega Engineering Corp. soon after he was fired from his job there is not entitled to a new trial on the basis of a juror’s post-verdict report that she was exposed to media accounts of the “Love Bug” virus during deliberations, a federal appeals court has ruled. In United States v. Lloyd, a unanimous three-judge panel of the 3rd U.S. Circuit Court of Appeals found that U.S. District Judge William H. Walls of the District of New Jersey erred when he granted a new trial because the Love Bug virus story “would not have had an impact on the hypothetical average juror’s vote.” Third Circuit Judge Dolores K. Sloviter said that appellate courts traditionally give “considerable deference” to a trial judge’s decision about the prejudicial effect of extraneous information on a jury’s verdict. But Sloviter found that Walls deviated from Federal Rule of Evidence 606(b) when he questioned the juror about the “actual effect” the Love Bug story had on her vote. Sloviter found that Walls compounded that error when he “projected her subjective reaction, which was, at best, ambiguous, onto the hypothetical average juror.” The ruling reinstates the verdict in which Timothy Lloyd was convicted on one count of computer sabotage. Lloyd is a former employee of Omega Engineering, a manufacturer of highly specialized and sophisticated industrial process measurement devices and control equipment whose customers included the Navy and NASA. On July 31, 1996, all of Omega’s design and production computer programs were permanently deleted. About 1,200 computer programs were deleted and purged, crippling the company’s manufacturing capabilities and resulting in a loss of millions of dollars in sales and contracts. The prosecution’s theory of the case was that Lloyd had planted a computer “time bomb” in the central file server of Omega’s computer network while he was still employed there, and that the program “detonated” after he was fired. The defense’s theory was that the massive deletion of files could have resulted from an accident or could have been caused by another employee, either intentionally or unintentionally. Defense lawyers also said Lloyd could not have committed the act of sabotage because he did not have direct access to the system after he was fired and because he had no motive prior to that since his firing was without warning. Testimony showed that for nearly a decade, Lloyd had worked at Omega as its only computer system administrator and was solely responsible for backing up the information on the system onto tapes. Prosecutors said that beginning in 1994, Lloyd became a difficult employee. Witnesses testified that he repeatedly elbowed, shoved and bumped colleagues in the hallways, and that he became verbally abusive. Despite being counseled about the problems, they said, he never improved his behavior. Lloyd was given a different job, but witnesses said that his interpersonal problems increased. Prosecutor said Lloyd knew he was going to be fired when he received a small raise and a less-than-enthusiastic review. Lloyd was fired in early July 1996 and was escorted out of the office. The time bomb detonated on July 31. Omega employees said the sabotage was especially damaging because Lloyd had instituted a policy that prevented employees from backing up files on their own computers. An expert witness testified that the “purge” of Omega’s files was intentional, and that only someone with supervisory-level access to the network could have accomplished such a feat. Government witnesses also testified that normally with Novell networks only one person has supervisory-level access, and that that one person at Omega was Lloyd. Experts also said the time bomb had been tested on three dates before Lloyd was fired. Prosecutors said time records showed that Lloyd had stayed late on each of the three dates. Defense lawyers argued that the government’s case was based on a series of assumptions that could not be proven. They called nine former Omega employees who testified that they never had any problems with Lloyd and that he was always very professional. The defense also argued that numerous other Omega employees had the requisite supervisory-level access to commit the act of sabotage and that Lloyd had no opportunity to plant the time bomb because his firing was “without warning.” The jury deliberated for 12 hours over three days, and ultimately convicted Lloyd on one count of computer sabotage, but acquitted him on a count of transportation of stolen goods. Three days after the verdict, juror Francis Simpson called the court to express discomfort with her vote. Simpson told Judge Walls that over the weekend in the midst of deliberations she saw a television report discussing a computer virus called the Love Bug. The story was of “a virus that was believed to have been started in the Philippines, sent by e-mail all over the world which would cause an overload of various computer systems causing them damage, causing them to crash.” When Walls questioned her about the effect the story had, Simpson said she learned that it was possible for the person who set off the Love Bug virus to affect computers worldwide, and therefore that she thought that it was possible for Lloyd to have triggered the time bomb in the Omega computer system without having direct physical access to the computer server at the time. Simpson said she wasn’t sure if the story had caused her to change her vote, and that her decision to change her vote to guilty was more likely due to her willingness to pacify the other jurors. She also testified that she and the other jurors did not discuss the story of the Love Bug during deliberations, although she admitted to asking other jurors whether they had heard the story. Walls granted Lloyd’s request for a new trial, saying he had concluded that the Love Bug story caused “substantial prejudice to the rights of the accused.” Sloviter found that Walls erred because “we do not permit jurors to impeach their own verdicts.” Under Federal Rule of Evidence 606(b), Sloviter said, the trial judge “may only inquire into the existence of extraneous information,” and not “into the subjective effect of such information on the particular jurors.” Sloviter found that Walls’ questioning of Simpson “went beyond the scope permitted by Rule 606(b).” “The court repeatedly asked the juror to describe the actual effect the information had on her vote. Such questioning clearly is impermissible under Rule 606(b),” Sloviter wrote. The inquiry should have been narrower, Sloviter said, because “we are only concerned with the probable effect the extraneous information would have on the hypothetical average juror, and not with the actual subjective effect the information had on Simpson.” Although several federal circuits apply a “presumption of prejudice” whenever a jury is exposed to extraneous information, Sloviter found that the 3rd Circuit has been more conservative, applying the presumption only when the extraneous information is of a considerably serious nature. “We have tended to apply the presumption of prejudice when a juror is directly contacted by third parties. … In contrast, we tend not to apply the presumption to circumstances in which the extraneous information at issue is a media report, such as a television story or newspaper article,” Sloviter wrote. Sloviter found that the Love Bug virus story was “totally unrelated” to the time bomb that occurred on Omega’s network. “The ‘Love Bug’ story suggests that a person with remote access to a computer (i.e., access from afar) could sabotage that computer. However, no one ever argued at trial that Lloyd committed the act of sabotage by remote access,” Sloviter wrote. “Instead, the government emphasized that Lloyd only could have committed the crime before he was fired when he had direct access.” As a result of the “significant dissimilarities” between the Love Bug and the time bomb, Sloviter found that Walls’ conclusion that the average juror would “use” the information “cannot be sustained.”

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