In United States v. Kvashuk, the Ninth Circuit was presented with a number of challenges to the conviction of a Ukrainian immigrant for using fellow Microsoft employees’ test accounts to create and steal $8 million worth of gift cards. Kvashuk raised numerous substantive issues relating to his conviction, none of which were accepted by the court.
The appellant and fellow employees were given test accounts because they wrote code for Microsoft’s online portal for selling computer hardware, television shows, movies, games, and applications. He used the logins for the other employees to create roughly $10 million worth of gift cards. Once Microsoft detected his activities and reported him to law enforcement, Kvashuk’s home was searched and evidence was seized that tied him to the crime. Kvachuk was convicted of numerous counts of fraud and sentenced to nine years in prison.
Kvashuk moved to suppress the evidence that was seized from his home. Although he did not dispute probable cause, he argued that the search was too broad because there was no nexus between his home and any alleged criminal activities. The court explained there is almost always probable cause to search the home in alleged cybercrime cases. Kvasuk’s activities occurred on digital devices, and digital devices are often used in the home. The court also rejected Kvashuk’s argument that there was no probable cause because the underlying information supporting it was “stale” because it occurred one year prior to the search warrant. Again, the distinct nature of cybercrimes leads to different applications of rules, as the court held that one year was not a long time in the lifespan of a computer.
Kvashuk also argued that the FBI agent who obtained the search warrant made misleading or incorrect statements when establishing probable cause for the warrant. However, the court did not find any false statements. In addition, the court also rejected Kvashuk’s argument that the test accounts were not a means of identification to be considered identity fraud. Further, the court also held that Kvashuk’s due process rights were not violated when the trial judge excluded evidence that Kvashuk had filed an asylum application.
Finally, the court rejected Kvashuk’s argument that his conviction was tainted because one juror had been a contractor working for Microsoft and was familiar with some of the people and teams at issue in the case. However, the juror’s personal experience was not the same as the fact pattern at issue in the trial. Therefore, Kvashuk’s conviction was affirmed.
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