District Court, Logan Department The Honorable Brandon J.
Maynard No. 121101017
Adams, Attorney for Appellant
D. Reyes and Jeanne B. Inouye, Attorneys for Appellee
Michele M. Christiansen and David N. Mortensen concurred.
M. HARRIS, JUDGE
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.
Jamieson appeals from the restitution order, and asks us to
consider two arguments. 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
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.
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
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.
The State charged Jamieson with one felony count of
"computer crimes." See Utah Code Ann.
§ 76-6-703(1).Eventually, after plea negotiations,
Jamieson pled guilty to one count of "computer
crimes" as a class A misdemeanor.
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.
The restitution hearing was scheduled and postponed several
times. It was finally held in September 2015 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.
also indicated to the court that he "wished he would
have kept better records related to the time he spent on
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.
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
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 ...