Joint Appendix — Nathan Van Buren, Petitioner v. United States
Supreme Court briefJul 1, 2020
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No. 19-783
IN THE
NATHAN VAN BUREN,
Petitioner,
v.
UNITED STATES,
Respondent.
On Writ of Certiorari
to the United States Court of Appeals
for the Eleventh Circuit
JOINT APPENDIX
Noel J. Francisco
Solicitor General
U.S. DEPARTMENT OF JUSTICE
950 Pennsylvania Avenue, NW
Washington, DC 20530
(202) 514-2217
SupremeCtBriefs@USDOJ.gov
Counsel of Record for
Respondent
Jeffrey L. Fisher
STANFORD LAW SCHOOL
SUPREME COURT
LITIGATION CLINIC
559 Nathan Abbott Way
Stanford, CA 94305
(650) 724-7081
jlfisher@law.stanford.edu
Counsel of Record
for Petitioner
Petition for Writ of Certiorari Filed: December 18, 2019
Certiorari Granted: April 20, 2020
i
TABLE OF CONTENTS
RELEVANT DOCKET ENTRIES
United States District Court, Northern
District of Georgia, Case No. 1:16-cr00243-ODE-JFK.............................................. 1
United States Court of Appeals for the
Eleventh Circuit, Case No. 18-12024 ............. 6
MATERIALS IN THE U.S. DISTRICT COURT FOR THE
NORTHERN DISTRICT OF GEORGIA (Case No. 1:16cr-00243-ODE-JFK)
Transcript (Excerpt) of October 23, 2017 Jury
Trial Proceedings Before U.S. District
Court Judge Orinda Evans ............................. 7
Transcript (Excerpt) of October 24, 2017 Jury
Trial Proceedings Before U.S. District
Court Judge Orinda Evans ........................... 15
Transcript (Excerpt) of October 25, 2017 Jury
Trial Proceedings Before U.S. District
Court Judge Orinda Evans ........................... 35
Transcript (Excerpt) of October 26, 2017 Jury
Trial Proceedings Before U.S. District
Court Judge Orinda Evans ........................... 38
1
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
United States of America v. Nathan Van Buren
Case No. 1:16-cr-00243-ODE-JFK-1
RELEVANT DOCKET ENTRIES
Date Filed #
Docket Text
06/29/2016 1
INDICTMENT with
FORFEITURE PROVISION as to
Nathan Van Buren (1) count(s) 12, 3. (ryc) (Entered: 06/30/2016)
04/25/2017 37
SUPERSEDING INDICTMENT
as to Nathan Van Buren (1)
count(s) 1s-2s, 3s. (bnw) (Entered:
04/26/2017)
10/23/2017 71
Minute Entry for proceedings
held before Judge Orinda D.
Evans: Jury Trial as to Nathan
Van Buren held on 10/23/2017.
Hearing not concluded. Court
adjourned and will reconvene at
10/24/2017 at 9:30 am. Exhibits
retained to be forwarded to the
Clerk’s Office. (Court Reporter
Andy Ashley) (sap) (Entered:
10/24/2017)
10/25/2017 74
MOTION to Dismiss Count by
USA as to Nathan Van Buren.
(Brown, Jeffrey) Text Modified on
2
10/25/2017 (sap). (Entered:
10/25/2017)
10/25/2017 81
ORDER GRANTING 74 Motion
to Dismiss Count 1s as to Nathan
Van Buren (1). Signed by Judge
Orinda D. Evans on 10/25/17.
(lwb) Modified on 10/25/2017
(sap). (Entered: 10/25/2017)
10/25/2017 84
Minute Entry for proceedings
held before Judge Orinda D.
Evans: Jury Trial as to Nathan
Van Buren held on 10/25/2017.
Hearing not concluded. Court
adjourned and will reconvene at
10/26/2017 at 9:30 am. Exhibits
retained to be forwarded to the
Clerk’s Office. Defendant’s 68
Motion to Strike is DENIED as to
Nathan Van Buren (1). (Court
Reporter Andy Ashley) (sap)
(Entered: 10/26/2017)
10/26/2017 85
Minute Entry for proceedings
held before Judge Orinda D.
Evans: Jury Trial Concluded as to
Nathan Van Buren on
10/26/2017. Exhibits retained to
be forwarded to the Clerk’s Office.
(Court Reporter Andy Ashley)
(sap) (Entered: 10/27/2017)
3
10/26/2017 86
JURY VERDICT as to Nathan
Van Buren (1) Guilty on Count
2rs, 3rs. (sap) (Entered:
10/30/2017)
10/30/2017 87
Court, Defendant, and
Government Exhibits admitted
and retained at the 71 Jury Trial
held on 10/23/2017, 75 Jury Trial
held on 10/24/2017, 84 Jury Trial
held on 10/25/2017, and 85 Jury
Trial held on 10/26/2017 as to
Nathan Van Buren have been
received from Courtroom Deputy
and placed in Exhibit Room.
(Attachments: # 1 Court Exhibit
1, # 2 Def Exhibit 10, # 3 Def
Exhibit 76, # 4 Gov Exhibit 1a,
# 5 Gov Exhibit 3a, # 6 Gov
Exhibit 4a, # 7 Gov Exhibit 5a,
# 8 Gov Exhibit 6a, # 9 Gov
Exhibit 7a, # 10 Gov Exhibit 8a,
# 11 Gov Exhibit 9a, # 12 Gov
Exhibit 10, # 13 Gov Exhibit 11,
# 14 Gov Exhibit 12, # 15 Gov
Exhibit 13, # 16 Gov Exhibit 14,
# 17 Gov Exhibit 15, # 18 Gov
Exhibit 16, # 19 Gov Exhibit 17,
# 20 Gov Exhibit 19, # 21 Gov
Exhibit 20, # 22 Gov Exhibit 21,
# 23 Gov Exhibit 22, # 24 Gov
Exhibit 23, # 25 Gov Exhibit 24,
4
# 26 Gov Exhibit 27) (sap)
(Entered: 10/30/2017)
05/03/2018 109 JUDGMENT AND
COMMITMENT as to Nathan
Van Buren (1). As to Counts 2rs,
3rs, defendant is sentenced to
CBOP 18 Months on each of
Counts Two and Three, to run
concurrently; 2 Years Supervised
Release on each of Counts Two
and Three, to run concurrently;
$200 Special Assessment. Signed
by Judge Orinda D. Evans on
5/2/18. --Please refer to
http://www.ca11.uscourts.gov to
obtain an appeals jurisdiction
checklist-- (ddm) (Entered:
05/04/2018)
12/11/2019 149 NOTICE SETTING RE-TRIAL as
to Nathan Van Buren. Jury Trial
set for 1/21/2020 at 09:30 AM in
ATLA Courtroom 1908 before
Judge Orinda D. Evans. (bdb)
(Entered: 12/11/2019)
12/31/2019 154 ORDER granting 151 Unopposed
MOTION to Continue Jury Trial
Date as to Nathan Van Buren (1).
Jury Trial reset for Monday,
4/20/2020 at 09:30 AM before
Judge Orinda D. Evans. Time
excluded from December 18, 2019
5
to April 20, 2020. Signed by
Judge Orinda D. Evans on
12/31/2019. (Rec’d in C.O. 1/6/2020) (bdb) (Entered:
01/06/2020)
02/13/2020 157 ORDER granting 156 Defendant’s
Unopposed Motion for
Continuance of Jury Trial as to
Nathan Van Buren (1). Jury Trial
reset for Monday, 6/22/2020 at
09:30 AM before Judge Orinda D.
Evans. Time excluded from
2/12/2020 to 6/22/2020. Signed by
Judge Orinda D. Evans on
2/12/2020. (bdb) (Entered:
02/13/2020)
05/19/2020 163 Joint MOTION to Continue retrial of count 2 by Nathan Van
Buren. (Attachments: # 1 Text of
Proposed Order) (Durrett,
Saraliene) (Entered: 05/19/2020)
05/26/2020 164 ORDER as to Nathan Van Buren
(1) granting the parties’ 163 Joint
Motion for Continuance of the ReTrial on Count 2. The trial on
Count 2 of the superseding
indictment is continued pending
further order of the Court. Signed
by Judge Orinda D. Evans on
5/20/2020. (ddm) (Entered:
05/26/2020)
6
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
United States of America v. Nathan Van Buren
Case No. 18-12024
RELEVANT DOCKET ENTRIES
Date Filed
Docket Text
05/11/2018
CRIMINAL APPEAL DOCKETED.
Notice of appeal filed by Appellant
Nathan Van Buren on 05/11/2018.
Fee Status: IFP Granted. [Entered:
05/16/2018 09:28 AM]
10/10/2019
Opinion issued by court as to
Appellant Nathan Van Buren.
Decision: Vacated and Remanded in
part; Affirmed in part. Opinion type:
Published. Opinion method: Signed.
The opinion is also available through
the Court’s Opinions page at this
link http://www.ca11.uscourts.gov/
opinions. [Entered: 10/10/2019 02:32
PM]
7
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
UNITED STATES OF
AMERICA,
v.
NATHAN VAN BUREN,
Defendant.
)
)
)
)
)
)
)
)
DOCKET NO. 1:16-CR243-ODE-JFK
ATLANTA, GEORGIA
OCTOBER 23, 2017
VOLUME 1
TRANSCRIPT OF JURY TRIAL
BEFORE THE HONORABLE ORINDA D. EVANS
SENIOR UNITED STATES DISTRICT JUDGE
APPEARANCES OF COUNSEL:
For the Government:
JEFFREY A. BROWN
Office of the U.S. Attorney
For the Defendant:
REGINA D. CANNON
REBECCA SHEPARD
Federal Defender Program
Court Reporter:
ANDY ASHLEY
1949 U.S. Courthouse
75 Ted Turner Drive
Atlanta, GA 30303-3361
(404) 215-1478
PROCEEDINGS
RECORDED
BY
MECHANICAL
STENOGRAPHY, TRANSCRIPT PRODUCED BY COMPUTER.
8
[185] THE WITNESS: ALETHA BARRETT
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DIRECT EXAMINATION
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BY MR. BROWN:
[202:1]
Q: Deputy Chief Barrett, I’m going to direct you to
the screen, and what we have up here is Government’s
Exhibit Number 16. Can you describe for the jury what
we’re looking at, and how it reflects, in fact, that a tag
was run?
A. Yes, Sir. A LETS search which is law
enforcement terminal search which is from our mobile
data terminal which is an in-car laptop, this is a tag
ran by it says [“]Dispatcher Van Buren N[”] which is
Nathan Van Buren. It is the tag Papa Kilo Papa 1568
which is the PKP1568, and this would be where he ran
the tag on 9-2 of 2015 at 9:50 in the morning.
Q. Now, you said — I’ll direct you to the middle of
the page. It says Dispatcher, and under Dispatcher it
says [“]N Van Buren[”]. What is that telling us as who
actually conducted actual query?
A. Yes, that shows who actually conducted the
query. That is just an error in our Tyler system. Tyler
is actually the database, the actual software that we
use to run the system. Whether he’s a dispatcher or an
officer that is actually who ran the tag.
Each person is issued a username and a
password that is only issued to that persona and that
9
person only, and that person is supposed to keep their
username and password secret [203] to them. It’s
actually a violation of Georgia law if you give your
username and password to anyone.
Q. And at the time you pulled this record, did you
have any information that someone else was using
Nathan Van Buren’s login details to run tag inquiries?
A. No.
Q. And can we go to page 2 of Exhibit 16 please,
okay, and so, Deputy Chief Barrett, page 2 of Exhibit
16 on the screen, can you explain what we’re looking
at here?
A. Yes, Sir. Page 2 shows at the top, this is the
actual return from GCIC where you show that the tag
was ran on 9-2 of 2015 at 9:50 in the morning, and it
shows Papa Kilo Papa 1568, PKP1568. It shows the
vehicle detail response. It shows the VIN of the
vehicle, and it shows that it returns to a 2003
Mitsubishi Eclipse Spider with an unknown color. It
shows the title number of the vehicle. It shows that it
returns to a Southeast Marine. That’s the actual
owner of the vehicle. It shows it returns to 3446
Wonder Road, Suite 172. The County of the vehicle is
Hall County, Foggy Branch, Georgia 35042.
Q. And so this was a record that you actually
pulled out from Cumming Police Department’s
records; is that correct?
A. Yes, Sir.
MR. BROWN: May I approach, your Honor?
THE COURT: Yes.
10
BY MR. BROWN: [204]
Q. Deputy Chief Barrett, I’m handing you what’s
been marked as Government’s Exhibit 21. Do you
recognize that document? You can flip through it to
make sure it’s a document that you recognize. Feel free
to pick it up and manipulate it.
A. Yes, Sir.
Q. And what do you recognize Government’s
Exhibit 21 as?
A. Nathan Van Buren’s GCIC training records to
include his security and integrity training records, as
well.
Q. Now, are these records that are kept in the
normal course of business of the Cumming Police
Department?
A. Yes, Sir.
Q. In fact, did you yourself or did you direct
someone to prepare and provide these documents to
my office at our request?
A. Yes, Sir.
Q. Do the documents contained in Government’s
Exhibit 21, do they fairly and accurately depict what
they show in the records of Mr. Van Buren’s training?
A. Yes, Sir.
Q. Have their been any alterations, deletions or
any change that you see to those documents?
A. No, Sir.
11
MR. BROWN: At this time, Your Honor, the
Government
would
tender
for
admission
Government’s Exhibit 21. [205]
MS. CANNON: No objection, Your Honor.
THE COURT: It’s admitted.
MR. BROWN: And, Your Honor, may be
publish page 1 of Exhibit 21?
THE COURT: Yes.
BY MR. BROWN:
Q. Deputy Chief Barrett, I’ll direct you to the
screen and ask you to just briefly tell the jurors what
we’re looking at here?
A. The first page would be Mr. Van Buren’s entry
level terminal operator for GCIC which means that
[he] passed in 2011, July of 2011 the entry level
operator for GCIC which would be the modules that
cover the policy manual for GCIC, entry level for
driver’s licenses, for tags, for NCIC, for missing
persons, for those types of things.
Q. And we’re not going to walk through each
particular one, but just kind of overall, does this
transcript show essentially the training that Officer
Van Buren would have completed while he was
working there with the Cumming Police Department?
A. Yes, Sir.
A. And particularly does it show training that he
received on dealing with the GCIC which is a GCIC
system?
A. Yes, Sir.
12
Q. And based on your knowledge of that training
that you’ve trained yourself or taken these courses, do
the courses detail [206] the proper way that officers
should use the GCIC system to search for records?
A. Yes, Sir.
Q. Does the training also detail inappropriate uses
for the GCIC system?
A. Yes, Sir.
Q. In particular I want to direct your attention to
Security and Integrity Training at the bottom of that
page, at the last third of the page. Are you familiar
with that particular Security and Integrity type of
training?
A. Yes.
Q. And does that training deal with proper and
improper use of the GCIC system by law enforcement
officers?
A. Yes.
Q. And does that training record show that
Sergeant Van Buren completed that Security and
Integrity training in 2011, February 2011 as well as in
January of 2013?
A. Yes.
Q. That he actually passed that training?
A. Yes.
Q. So based on your — I think you also testified
that at some point in time you were a training officer.
Did you actually train officers on various training
13
modules that they’re required to take by GCIC and the
GBI?
A. Yes. [207]
Q. Can you just briefly detail for the jury what that
entailed? You as the trainer what did you have to do to
train officers?
MS. CANON: Your Honor, I’m going to object
if we’re getting into the substance of what the training
was. We don’t have any discovery about any policies or
procedures. This shows that he took the training. It
doesn’t say what he learned during the training. That’s
my objection, a discovery violation and a hearsay
violation.
MR. BROWN: I think I’ve laid the foundation
that this officer has taken the training, and she’s
certainly capable to testify as to what the training
entailed, Your Honor.
THE COURT: I will allow it.
BY MR. BROWN:
Q. So let’s talk about the security and integrity
training in particular, does the training lay out any
detail relating to improper use of the GCIC system?
A. Yes, as a terminal agency coordinator which is
what I was, that person is required to maintain and
establish the security and integrity of the GCIC
training for the agency. Currently we have another
terminal agency coordinator within our agency who I
require to maintain those things and keep up with the
validations within our agency.
14
Security and integrity training you’re required
to [208] take every two years, and Sergeant Van Buren
according to this on January 3rd, 2013 he actually took
it. If you refer to the other certifications, he would have
had to have taken it again later on. So that on January
3rd of 2013 I think that one is actually expired, but if
you look further in the certifications, he would have
had an up-to-date one there on the certifications.
But he has to certify every two years as does
every certified law enforcement officer to deal with
criminal histories and drivers histories and tags to
even look at a GCIC, any kind of printoff for GCIC
which is Georgia Crime Information Center, and also
National Crime Information Center. To even look at
any kind of these records, we have to be certified
through the State of Georgia.
So integrity and security awareness training
we have — we receive what the sanctions are, and to
disseminate this information we can be sanctioned 15
years or a 50,000 dollar fine, and so —
Q. Let me stop you there. As it relates to
dissemination, does it relate to using the information
for a nonlaw enforcement purpose?
A. Yes.
*
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15
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
UNITED STATES OF
AMERICA,
)
)
)
)
)
)
)
)
v.
NATHAN VAN BUREN,
Defendant.
DOCKET NO. 1:16-CR243-ODE-JFK
ATLANTA, GEORGIA
OCTOBER 24, 2017
VOLUME 2
TRANSCRIPT OF JURY TRIAL
BEFORE THE HONORABLE ORINDA D. EVANS
SENIOR UNITED STATES DISTRICT JUDGE
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[229]
[DIRECT EXAMINATION OF ALETHA BARRETT]
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[BY MR. BROWN]:
Q. Was that — yesterday we admitted an exhibit
that showed the actual query, and you’ve identified
that exhibit and it’s in evidence —
A. Yes, Sir.
Q. — was that the same date that that was ran?
A. Yes, Sir.
Q. I just want to make sure I publish what’s
already in evidence as Government’s Exhibit 16, and
16
just to make sure we’re clear, Deputy Chief Barrett,
what date was this tag ran?
A. On 9-2-2015 at 9:50 a.m.
Q. So based on the previous exhibit, would Officer
Van Buren been on duty at the time the tag was run?
A. Yes, Sir.
Q. So, Deputy Chief Barrett, we left off yesterday
talking about this record, and I want to go back to that
today and finish that up.
So you were explaining — can you just explain
briefly what the record is, and then I’ll ask you some
questions about the record?
A. This record shows the GCIC query where
Nathan Van Buren ran the tag on 9-2 of 2015 at 9:50
in the morning.
Q. And I think you left off yesterday testifying
about that you actually were a trainer that trained
officers as it relates to the proper and improper use of
the GCIC database; is that correct?
[230]
A. Yes, Sir.
Q. And had Mr. Van Buren received the training
on the proper use of the GCIC database?
A. Yes, he had.
Q. And does that training for officers explicitly
cover the proper purposes for GCIC and improper
purposes and penalties for improperly using the GCIC
database?
A. Yes.
17
Q. So based on that training, what is an improper
purpose for an officer to run something on the GCIC
system?
A. Any noncriminal justice use.
Q. What does that mean; what does it mean
noncriminal justice use?
A. For any personal use. There’s only certain ways
that a person can use tag information, and those are
criminal justice uses. If an individual wants their tag
run, and you can prove that that person owns that
vehicle, they can receive that information, or if a tow
truck operator has a vehicle in their possession, that
person can receive that information. If they have that
vehicle in their possession, they can receive that
information.
Q. Is it proper for a police officer to run his friend’s
tag or run a tag of a cute girl he saw riding down the
road; is that proper?
A. Absolutely not.
[231]
Q. And is that against the law in Georgia?
A. It is, and that’s covered in that training.
Q. What about getting money from a buddy to run
one of his friends; is that proper?
A. That is illegal.
MR. BROWN: Your Honor, that’s all I have of
this witness at this time.
THE COURT: You may proceed.
CROSS-EXAMINATION
18
BY MS. CANNON:
Q. I have some questions for you, Ma’am, related
to what you said yesterday, and some things I want to
clarify for the jury today, okay?
A. Yes, Ma’am.
Q. The first thing I want to start with is what you
just stated to the jury is that you believe based on what
you heard that maybe Mr. Van Buren committed a
violation of state law, correct?
A. Yes.
Q. But there’s never been state charges filed in this
case, correct?
A. Yes.
Q. In fact, based on that information, it was never
referred to a state agency for prosecution, was it?
A. No, Ma’am.
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[243]
Q. And, lastly, I believe we have just one more.
Deputy Chief, there’s another report, and this one is
dated August 6th. Again has this been submitted to
you?
A. Yes.
Q. Again Sergeant Van Buren is reporting what
he’s learned from Amber Fouts who is also a victim in
the case, correct?
A. Yes.
19
Q. And in it he advises her to seek a temporary
protective order, correct?
A. Yes.
Q. Even though she’s claiming Andrew Albo is the
one who’s been harassing her, correct?
A. Yes.
Q. In fact multiple text messages and phone calls
that she believes are from Andrew Albo, correct?
A. Yes.
Q. He submitted that and completed the reports as
required for his position, correct?
A. Yes.
Q. During this entire investigation, Mr. Van Buren
used his work-issued phone, correct?
A. Yes.
Q. And the sergeant also used his work-issued
computer, correct?
A. Yes.
[244]
Q. He was assigned a GCIC password, correct?
A. Yes.
Q. Once you finish the training, you get a
password, so he had that password that he obtained
from the training, correct?
A. Yes.
Q. So that was proper in terms of him getting the
password, correct?
20
A. Yes.
Q. He followed the internal policies you all have in
terms of getting folks authorized to use the password?
A. Yes.
Q. Not everyone in your department has a
password, correct?
A. Yes.
Q. But they’ve all gone through the training,
correct?
A. Yes.
Q. Okay. Do you have any people in your
department who don’t have passwords for GCIC?
A. No.
Q. So everyone with the department has a
password, correct?
A. A username and password for GCIC.
Q. If they’ve gone through the training?
A. They went through the training, yes.
Q. But I wouldn’t be able to do it because I haven’t
done the [245] training, correct?
A. No.
Q. But if I had the password, then I could?
A. Yes.
Q. Deputy Chief, when you submitted this case to
the federal agents, all you had was that recording,
correct, that we just heard today?
A. Yes.
21
Q. On that recording you heard nothing about
Sergeant Van Buren’s interest in helping drug
trafficking, did you?
A. No.
Q. You heard nothing on that tape about Sergeant
Van Buren helping Andrew Albo involved in any kind
of sex trafficking of minors, did you?
A. No.
Q. This was about a loan, correct?
A. About a what?
Q. A loan, correct?
A. Yes.
Q. And the violation that you heard on that tape
had to do with his ethical duty to the job and to the
community, correct?
A. Yes.
Q. And he was fired for that, right?
A. He decided to resign.
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[253] DIRECT EXAMINATION [OF NEAL
GERSTENBERGER]
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BY MR. BROWN:
Q. Good morning, Mr. Gerstenberger.
A. Good morning, Sir.
Q. Where are you employed?
22
A. Georgia Bureau of Investigation.
A. And how long have you been with the Georgia
Bureau of Investigation?
A. Thirty-one years.
Q. And can you just enlighten the jury on what is
the Georgia Bureau of Investigation, and what do you
guys do there?
A. The Georgia Bureau of Investigation is the top
law enforcement agency for the State of Georgia. We
have three divisions. We have the Division of Forensic
Sciences which most people know as the Crime Lab.
We have the Investigative Division which is where all
the agents reside and investigative services are
provided, and then the third division we have is [254]
the Georgia Crime Information Center, and that is
where I am employed.
We have responsibility for the criminal history
repository. We have responsibility for the law
enforcement network that agencies use to run
information. We have responsibility for the sex
offender registry, the protective order registry. All
those different databases that you hear about, we’re
responsible for those databases.
Q. So can you give the jurors the background of the
GCIC system, what does GCIC stand for, and when
you refer to the GCIC system, what are we referring
to?
A. GCIC is the Georgia Crime Information Center.
That’s one of the divisions within the Bureau. So there
are a lot of different systems, but one of the things that
we talk about many times is what we call the CJIS
23
system, the Criminal Justice Information System
Network, and that is the data communications
network that the GBI is responsible for maintaining
and managing, and that network, that’s a statewide
data communication network, and that provides
criminal justice agencies access to a number of
computerized criminal databases, databases that are
maintained by Georgia state agencies or agencies in
Georgia and other states at NCIC.
Q. And I think you testified that you’re the
assistant deputy director?
A. Yes, Sir.
[255]
Q. So what are your duties and responsibilities as
the Assistant Deputy Director?
A. My duties and responsibilities as one of the
assistant deputy directors within the Georgia
information Center is responsibility for the criminal
history repository. So when an individual is arrested
whether that be for the first time or a subsequent time,
we’re either creating a criminal history record for that
individual based on the fingerprints that we receive,
or we’re updating that individual’s criminal history
record.
Likewise, more and more, there’s more and
more access or requests for criminal history record
information from employers for licensing and
employment and housing, those types of decisions. So
all of those cards whether it’s an arrest card or a
fingerprint card for an arrest or a fingerprint card for
a background check, all those come to us. We process
24
those and provide the appropriate response back to the
law enforcement criminal justice agency or the
licensing or employment agency whether that be a
school board, Georgia board of realtors, board of
nursing, whoever that may be.
Q. Can you explain or tell the jurors what NCIC
stands for?
A. NCIC is the National Crime Information
Center.
Q. And what does that mean?
A. Well, the National Crime Information Center is
housed at the FBI headquarters in Clarksburg, West
Virginia, and NCIC is [256] a computerized database
of many different files, wanted persons, stolen
vehicles, stolen articles, sex offender registry,
protective orders, gangs, fugitives, known suspected
terrorists. There are many, many files that are
contained within NCIC that are accessible by law
enforcement criminal justice agencies.
Q. Now where is that information housed; where is
the information kept?
A. It is kept at FBI headquarters in Clarksburg,
West Virginia.
Q. Okay. And let’s just — I want to direct you back
to Georgia here, and does the GBI and GCIC in
particular regulate how local police officers access
databases maintained by your agency?
A. Well, it comes through the – all those inquires
come through that CJIS network that we just
discussed, and that is a web based or internet based
application. So any user on that system has to have a
25
user I.D. and password to get into the system to run
any kind of inquiry.
Q. Does any kind of inquiry include a police officer
checking a license tag number; would that come
through the system maintained by the GBI under
GCIC?
A. Yes, Sir.
Q. I want to show you what’s been marked as
Government’s Exhibit Number 17, and you have a
copy.
[257}
Your Honor, may I approach the witness?
THE COURT: Yes.
BY MR. BROWN:
Q. Mr. Gerstenberger, I’m showing you what’s
been marked as Government’s Exhibit 17. Do you
recognize that document?
A. Yes, Sir, I do.
Q. You can pick it up and flip through it and make
sure I didn’t have my kids’ crayon drawing on the
second page.
A. Yes, Sir, I recognize this.
Q. Okay. And what is it?
A. This shows where a license tag – thee was an
inquiry made on a license tag for registration
information on that vehicle.
Q. Let me stop you there. So is that a record that
is kept in the normal course of business for the GBI?
26
A. Yes, Sir.
Q. And is that a true and accurate copy of a record
that’s actually maintained by the GBI and provided to
my office?
A. Yes, Sir.
Q. Have there been any changes or alterations or
deletions that you can tell from looking at those two
pages?
A. No, Sir, there are not.
MR. BROWN: At this time, Your Honor, the
Government would tender Government’s Exhibit 17
into evidence.
MS. SHEPARD:
No objection, Your Honor.
[258]
THE COURT: It’s admitted.
Honor?
MR. BROWN: Can we publish, please, Your
THE COURT: Yes.
BY MR. BROWN:
Q. Publish page 1 first. What are we looking at
here, Mr. Gerstenberger?
A. The first page is just a certificate of authenticity
of the records, the attached records that they are true
and accurate and a record that would be maintained.
Q. And what is the tag there that was the offline
search; what tag number is that?
A. The tag was PKP1568.
27
Q. Can we publish page 2 please? Looking at this
page, can you give an overview to the jury of what
we’re looking at as it relates to what’s maintained by
the actual GBI just from looking at this; what does
that page show us?
A. The page shows us that there was a registration
query done by a law enforcement agency. It shows the
license tag that was queried, the license tag year, date
and time that that query was made.
Q. What is the date and time of that query?
A. September 2nd, 2015.
Q. And then midway through, what is that
showing us at the bottom[;] like was there a response
from that query?
A. Yes, Sir, it shows the response that came back
from the [259] Department of Revenue. The
Department of Revenue maintains all vehicle
registration information in the State of Georgia. So
when that inquiry came to us through to the CJIS
network, we have a message switch, and it’s kind of
like directing traffic, so that inquiry came to us from
the local law enforcement agency.
That tag request once it hit our system, we
then shipped that out to the Department of Revenue.
A response came back from the Department of
Revenue to our message switch, and then we in turn
routed it back to the inquiring agency.
Q. If we can highlight the bottom portion of page
1? So NCIC, what does that refer to —
A. NCIC1 is the NCIC terminal showing where an
inquiry was sent to NCIC on that tag.
28
Q. I’m not asking for all the technical details, but
you stated that your office doesn’t maintain NCIC
records, and you’ve already testified that’s maintained
in West Virginia; is that correct?
A. Yes, Sir.
Q. So when a local officer does his search, give us
the 5,000 foot view; is their [sic] an inquiry sent to
NCIC to check and see if there was a record?
A. Yes, behind the scenes, the system
programmatically sends what is called QV or Query
Vehicle, and that goes out to NCIC to see if that vehicle
is stolen or has been reported stolen [260] anywhere,
whether that be Georgia or any other state. So in this
case that query came back from NCIC that showed the
vehicle was not stolen or reported as stolen.
Q. And also I want to direct your attention to the
limitations on the GCIC system and access maintained
by GCIC. Are there restrictions placed on users as to
what kind of information under what circumstances
they can obtain information?
A. Yes, and it’s for authorized normally law
enforcement purposes only.
Q. And are users trained on what are the proper
and improper uses of the actual system that the GBI
maintains?
A. Yes, Sir, agencies do receive training on proper
use of the system and the different databases.
Q. Is it proper for a local police officer to run a tag
in exchange for money?
A. No, Sir.
29
Q. And does the training detail criminal penalties
for actually violating the rules for accessing
information contained in GCIC and CJIS?
A. Yes, Sir, it does touch on that, cover that, Yes,
Sir.
Q. And I think we left off, Mr. Gerstenberger, you
talked about penalties, are criminal penalties involved
for individuals that unlawfully or improperly access
materials maintained by GCIC and CJIS; is that
correct?
[261]
A. Yes, Sir.
Q. And are the criminal penalties outlined in the
training materials for use of that information system?
A. Yes, Sir.
Q. And do you know what that penalty is, and what
is prohibited?
A. I know that the penalties can involve prison
time, fines – I’m sorry, what’s the other question?
Q. And do you know what particular law that is a
violation of?
A. It’s unauthorized access and use of the data
from those databases.
Q. And in preparation for your testimony, did you
provide me a document outlining penalties involved
with improperly accessing the GCIC network?
A. The training materials, yes.
30
Q. Would looking at the training materials refresh
your memory as to the exact penalties that are in place
for individuals that violate or improperly access GCIC?
A. Yes, 16-9-90 through 94 or wherever it may be,
password disclosure and those kind of things?
Q. For improperly accessing the GCIC network?
A. Right, that is —
MS. SHEPARD:
Objection, Your Honor, I
would just argue that the foundation hasn’t been laid
for this. It seems [262] that the witness is not clear as
to what the penalties are with regards to these
questions, and in regards to what sort of violations.
MR. BROWN: I’m
questions.
still
asking
some
THE COURT: Overruled at this time.
*
*
*
*
[267:8]
(IN OPEN COURT)
THE COURT: Did
question?
you
have
another
MR. BROWN: I do, Judge.
BY MR. BROWN:
Q. So, Mr. Gerstenberger, we were doing an
awkward dance relating to the training in this case
and improper use of GCIC.
So my question to you as it relates to this is is
it improper to use the GCIC network for your own
personal gain?
31
A. Yes, it is improper.
Q. So it would be improper for me if I’m authorized
to use GCIC to take money from someone to run a
query; is that improper?
A. That is improper.
Q. And is it also improper to do it for a noncriminal
justice or nonlaw enforcement purpose, is that an
improper use of the network?
A. Yes, that would be an improper use.
[268]
MR. BROWN: That’s all I have, Judge. Thank
you.
CROSS-EXAMINATION
BY MS. SHEPARD:
Q. Good morning, Mr. Gerstenberger.
A. Good morning.
Q. I just have a few questions. You talked about
there being multiple levels or multiple databases that
are included in GCIC, correct?
A. Yes, Ma’am.
Q. So there’s more than one type of GCIC inquiry,
correct?
A. Correct.
Q. So, for example, one sort of GCIC inquiry could
be looking into someone’s entire criminal history,
right?
A. Yes, Ma’am.
32
Q. But the exhibit that the Government showed
that you identified up on the screen, that was a specific
inquiry into a license tag, correct?
A. Yes, Ma’am.
Q. A vehicle license plate?
A. Yes, Ma’am.
Q. And the information that we saw produced in
that license plate included the owner of the car,
correct?
A. Yes, Ma’am.
Q. The address associated with the registration?
A. Yes, Ma’am.
[269]
Q. The insurance status?
A. Yes, Ma’am.
Q. And you indicated it would also report if the
court [sic] had been reported stolen, correct?
A. Yes, Ma’am.
Q. So if a law enforcement officer – let me rephrase
this. That inquiry did not produce any additional
criminal history or any additional information about
the owner of the vehicle, correct?
A. That is correct.
Q. Okay. So if someone were to look up my license
plate, see my car, a police officer see my car in the
parking lot and have some reason to suspect the owner
of the car and run my tag, they would identify my
name if I’m the registered owner, correct?
33
A. Yes, Ma’am.
Q. And if they wanted to find out more information
about me, they would be able to do additional
inquiries?
A. Yes, Ma’am.
Q. And if a police officer were to see my car parked
somewhere and think that I was engaged in some sort
of illegal conduct, it would be proper for them to run
my tag as part of their investigation, correct?
A. Yes, Ma’am.
Q. And generally as part of an investigation, it is
proper [270] for local law enforcement officers to use
the GCIC tag inquiries, correct?
A. Yes, Ma’am.
MS. SHEPARD:
Thank you.
THE COURT: Shall the witness be excused?
MR. BROWN: Very brief redirect, Judge.
THE COURT: Very brief.
MR. BROWN: Yes, Judge.
REDIRECT EXAMINATION
BY MR. BROWN:
Q. On cross, defense counsel asked you a
hypothetical about a law enforcement officer seeing
her vehicle and engaged in some kind of, you know,
conduct, she said for some reason, law enforcement
reason, and the officer ran the tag, and she asked you
if that was proper, and you said it would be proper; is
that correct?
34
A. Yes, if there’s a law enforcement reason or
legitimate —
Q. Right, so my question is just the reverse of that.
If a law enforcement officer sees a tag and wants to
run a tag for a girl he thinks is pretty to find out what
her name is, would that be a proper use of the
network?
MS. SHEPARD:
Objection, Your
asked and answered repeatedly on direct.
Honor,
THE COURT: Overruled.
MR. BROWN: You can answer the question.
[271]
use.
you.
THE WITNESS:
That would be improper
MR. BROWN: That’s all I have, Judge. Thank
THE COURT: Who’s next?
*
*
*
*
35
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
UNITED STATES OF
AMERICA,
)
)
)
)
)
)
)
)
v.
NATHAN VAN BUREN,
Defendant.
DOCKET NO. 1:16-CR243-ODE-JFK
ATLANTA, GEORGIA
OCTOBER 25, 2017
VOLUME 3
TRANSCRIPT OF JURY TRIAL
BEFORE THE HONORABLE ORINDA D. EVANS
SENIOR UNITED STATES DISTRICT JUDGE
*
*
*
*
[380:21]
THE COURT: All right. Ms. Shepard, you
may proceed.
MS. SHEPARD:
Good
morning,
Your
Honor. I am going to present a motion, a Rule 29
motion for judgment of acquittal as to both counts. I do
have sort of a multitiered argument as to each count,
and if the court would, if it would be your [381]
pleasure, I have prepared sort of a bullet point memo
going through my argument that might be helpful to
follow along.
THE COURT: Thank you.
*
*
*
*
36
[390:3]
MS. SHEPARD:
Okay. Now as to the
computer fraud count 18 [ ] USC, 1030(a)(2)(C) is the
particular statute or particular code section that’s
been charged in the indictment here, and it addresses
intentional access of a computer without authorization
or exceeding authorized access, and as Sergeant Van
Buren is chargeded [sic], he’s particularly charged
with exceeding his authorized access.
*
*
*
*
[391:20]
But in looking at the case law that does
address this section, it establishes that accessing
information that you have access to, accessing it for an
improper or impermissible purpose does not exceed
authorized access as meant by 1030(A), . . .
*
*
*
*
[396:17]
MR. BROWN: As to Count 2, defense counsel
is right except they did not give the court Eleventh
Circuit law that directly addresses this issue. The case
is United States versus Rodriguez. There’s a split in
the circuit —
THE COURT: About what?
MR. BROWN: There’s a split in the circuit as
to whether given the defense counsel’s analogy of
having a key. The Ninth Circuit and other circuits take
the position that no, once an employee has access,
that’s it. Once they’re there, [397] they’re there, and
they cannot be charged with violating the statute.
37
The Eleventh Circuit and other circuits say no,
you can exceed your authorized access, even though
you’re allowed to be there, once you get there and do
something that’s outside the scope of what you’re
allowed to do, you’re exceeding your authorized access,
and the Rodriguez case from the Eleventh Circuit
deals with a Social Security employee who was on the
Social Security database legally and rightfully, but he
exceeded his access by actually searching for
information for a nonbusiness purpose, and the court
said yes, he violated the statute, and I’ll tender this to
the court if the court wants to see the decision. The last
time I checked it is still good law, and there is a split
in the circuit.
THE COURT: Okay. Is that it?
MR. BROWN: Yes, Your Honor. Thank you.
*
*
*
*
[399:14]
THE COURT: I’m going to deny the defense’s
motion.
*
*
*
*
[399:21]
[THE COURT]:
* * * So I think there is
enough evidence to go to the jury for them to decide on
Count 1, and the same thing on Count 2, I think there
is enough evidence to send this charge to the jury. So I
will deny the motion.
*
*
*
*
38
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
UNITED STATES OF
AMERICA,
)
)
)
)
)
)
)
)
v.
NATHAN VAN BUREN,
Defendant.
DOCKET NO. 1:16-CR243-ODE-JFK
ATLANTA, GEORGIA
OCTOBER 26, 2017
VOLUME 4
TRANSCRIPT OF JURY TRIAL
BEFORE THE HONORABLE ORINDA D. EVANS
SENIOR UNITED STATES DISTRICT JUDGE
*
*
*
*
[CLOSING ARGUMENTS]
[519:6]
MR. BROWN: So Count 3 as you’re going to
see in the indictment that you have is Computer
Fraud, and it’s essentially relating to the same conduct
that we’ve been talking about in this entire case. What
conduct is that, the GCIC tag query, and the elements
that I suspect the Government – the judge will charge
you on that:
One, the Defendant intentionally accessed a
computer in a way or to an extent beyond the
permission given. So I asked Aletha Barrett, Deputy
Chief, his commanding officer, I asked Neal
Gerstenberger, and I asked other law enforcement
39
officers, they came up, I think there were defense
witnesses about as a law enforcement officer do you
have access to GCIC. Yes, you have to have training.
They mentioned the training. What did that training
talk about or discuss? Well, it says — these are two
things you can’t do. You can’t run access information
on that system for your own private gain, prohibited.
Two, you cannot do it for a nonlaw enforcement
purpose.
So he has access, but he exceeded his
authorized access by doing that, and I think this is a
concept not just [520] for public employees. Many of
you work on computers in your own jobs. You have
access to computers to do your job. If you go on the
computer and access personal information and provide
it to someone else, you’ve exceeded your authority.
You’re allowed to be on the network, but once
you’re using the network that’s against what your job
or policy prohibits, you’ve exceeded your access. You’ve
gone too far, and this is the concept that this
Defendant violated. He violated this federal law when
he ran that tag query for his own personal benefit and
for a nonlaw enforcement purpose.
And Count 2, the second element, the
Defendant received information from the computer
used in or affecting interstate or foreign commerce or
communication, that’s stipulated, and you can look at
the stipulation. So that’s not in dispute.
So the third element is for private gain. The
Defendant admitted that September 3rd, 2015, his
interview, he received a thousand dollars for doing
that, his own private gain.
40
*
*
*
*
[CLOSING STATEMENT]
[542:4]
[MS. CANNON]: Computer
fraud
and
abuse, did he exceed his authority? No. His former boss
told him that – told us that he had a password. He was
certified for GCIC searches. That they do it, running
tags. She does. The other officers have, and I think she
said everyone there in her department, they have the
password. They receive the training.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.