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State v. Jamieson

Court of Appeals of Utah

December 29, 2017

State of Utah, Appellee,
v.
Gary Jamieson, Appellant.

         First District Court, Logan Department The Honorable Brandon J. Maynard No. 121101017

          Emily Adams, Attorney for Appellant

          Sean D. Reyes and Jeanne B. Inouye, Attorneys for Appellee

          Judges Michele M. Christiansen and David N. Mortensen concurred.

          OPINION

          RYAN M. HARRIS, JUDGE

         ¶1 Gary Jamieson downloaded, without authorization, over 1, 400 of his boss's emails and disseminated them to outside parties. He later pled guilty to "computer crimes" as a class A misdemeanor. See Utah Code Ann. § 76-6-703(1) (LexisNexis Supp. 2017). The State sought restitution on behalf of his employer (Company), the victim of the crime. After holding a hearing, the district court calculated complete restitution in the amount of $120, 378.27, a figure representing, in large part, the estimated value of time spent by Company officials dealing with the aftereffects of the email download.

         ¶2 Jamieson appeals from the restitution order, and asks us to consider two arguments.[1] First, he argues that the district court improperly included in its restitution figure at least some amount for time spent by Company employees while participating in the criminal case (e.g., attending hearings). Jamieson did not raise this argument below, but contends that the district court plainly erred by including any such amounts in its calculation. Second, Jamieson asserts that he received ineffective assistance of counsel because his attorney failed to take issue with the Company CEO's claim that he had devoted 553 hours to dealing with the email download.

         ¶3 We find Jamieson's arguments persuasive. Accordingly, we vacate the restitution order and remand the case to the district court for a new restitution hearing.

         BACKGROUND

         ¶4 Jamieson was employed by Company as its chief engineer. In May 2011, Jamieson contacted another Company employee and requested access to the CEO's emails. At that time, the CEO was out of the country and was not reachable by phone. The employee gave Jamieson "remote access to [the CEO's] computer, bypassing the firewall, other network protections and password controls, " thereby allowing Jamieson direct access to the CEO's computer. Jamieson had full access to the CEO's computer for about twenty minutes, and in that time period Jamieson printed out several hard-copy files and downloaded many of the CEO's emails onto a thumb drive. In this fashion, Jamieson obtained "at least" 1, 400 emails comprising some 2, 000 printed pages. The emails were "very confidential" and included information regarding employee compensation, pending business deals, plans to hire a competitor's employees, and communications with other industry professionals.

         ¶5 Later, Jamieson, believing that Company was involved in illegal activity, told the CEO that "I have your email[s], they're very damning, I'm going to take you down." Jamieson disseminated the emails to a federal government agency, federal law enforcement officials, and a local news organization. Company eventually fired Jamieson.

         ¶6 The State charged Jamieson with one felony count of "computer crimes." See Utah Code Ann. § 76-6-703(1).[2]Eventually, after plea negotiations, Jamieson pled guilty to one count of "computer crimes" as a class A misdemeanor.

         ¶7 After Jamieson pled guilty, the State sought a total of $164, 609.77 in restitution. The bulk of this request was comprised of time spent by the Company's CEO. Indeed, the State asserted that the CEO had spent "553 hours (at minimum) . . . reviewing printed emails, meeting with local & [federal] counsel, police investigators, & staff, " and that the value of the CEO's time totaled $110, 600. The State also sought $7, 500 representing time spent by three other Company employees, including its vice-president.

         ¶8 The restitution hearing was scheduled and postponed several times. It was finally held in September 2015[3] and, at the hearing, the district court posed direct questions about the 553 hours that the CEO claimed to have spent, asking Company counsel to "[h]elp me understand the 553 hours." The Company's attorney proffered the testimony of the Company's CEO and vice-president as follows:

[T]he time that they had spent would probably fall into one of two pots. The time that was directly related to mitigating the damages and time that they'd spent dealing with the criminal process in general. Because we've been in court three or four times for this restitution hearing to be continued. So I asked them to allocate that . . . . What they responded to me was-their initial reaction was about 75 percent of [their time] fell into the former pot and about 25 percent in the latter.

         The CEO also indicated to the court that he "wished he would have kept better records related to the time he spent on those [charges]."

         ¶9 The court invited Jamieson's attorney to ask questions of the Company employees. Jamieson's attorney asked one specific question-whether the vice-president was a salaried employee- but otherwise declined to examine the Company employees whose time was at issue. Specifically, counsel did not take the opportunity to ask questions of the CEO about his claim that he had devoted 553 hours to this case.

         ¶10 A few weeks after the restitution hearing, the district court issued a written decision calculating "complete restitution" at $120, 378.27, a figure that was comprised almost entirely of Company employees' time. The district court excluded attorney fees from the calculation, but did not make any attempt to separate out and exclude the Company employees' time spent attending to the criminal proceedings. The district court credited the CEO with spending 553 hours on the matter, and calculated the value of the CEO's time at $110, 600, exactly as the State requested. Likewise, the district court granted the State's request, in its entirety, regarding the other employees' time, valuing that time at $7, 500. After taking Jamieson's financial circumstances into account, the court ordered Jamieson to pay restitution in the amount of $90, 000, acknowledging that "the complete restitution in this case is larger than the [c]ourt-ordered restitution."

         ¶11 In addition to the restitution order, the district court sentenced Jamieson to a term of 365 days in jail, with 335 days suspended. The court also imposed upon Jamieson a probationary term of thirty-six months, with the payment ...


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