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August 16, 2005.

Timothy Lloyd, Petitioner,
United States of America, Respondent.

The opinion of the court was delivered by: WILLIAM H. WALLS, District Judge

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] OPINION

Petitioner Timothy Lloyd, petitions, pro se, to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. The motion is denied and his petition is dismissed.


  A. Procedural History

  In January 1998, a grand jury indicted Petitioner on two counts. Count One charged Petitioner with "knowingly and willfully caus[ing] the transmission of a program, information, code, or command, and, as a result of such conduct, intentionally caus[ing] damage, without authorization, to a protected computer that was used in interstate and foreign commerce and communication, in violation of 18 U.S.C. §§ 1030(a)(5)(A) and 2." Count Two charged Petitioner with "knowingly and willfully transporting in interstate commerce, between New Jersey and Delaware, goods and merchandise, namely computer hardware and software and software equipment from Omega Engineering, Inc., ("Omega"), having a value of approximately $50,000, knowing the same to been stolen and converted, in violation of 18 U.S.C. §§ 2314 and 2."

  After 8 days of trial beginning April 19, 2000, the jury acquitted Petitioner on Count Two and convicted him on Count One. After the jury returned its verdict, one of the jurors stated that during deliberation she was influenced by watching a television report that discussed a computer virus named the "Love Bug." She concluded from this report that it was possible for Petitioner to have remotely triggered the "Time Bomb," a destructive computer program that Petitioner installed onto Omega's computer system. Accordingly, she found him guilty on Count One. (App. 922.) The Court, however, concluded that the Love Bug story substantially prejudiced the Petitioner's rights, thereby implicating his Sixth Amendment right. (Id.) The Court granted a new trial, a decision which the government appealed.

  On October 12, 2001, the U.S. Court of Appeals for the Third Circuit reversed the Court's decision. It reinstated Petitioner's conviction on the ground that there was no substantial likelihood of prejudice from the "love bug" story because it was unrelated to the facts of the case. United States v. Lloyd, 269 F.3d 228, 242-43 (3d Cir. 2001). On remand, the Court sentenced Petitioner to 41 months of imprisonment and fined him $2,043,394 in restitution damages.

  Petitioner appealed the conviction to the Third Circuit in March 2002. The appeal was later withdrawn and the case was dismissed on August 21, 2002.

  Petitioner now moves under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence on the following grounds:

  (1) The damaged computer is not a "protected computer" as defined in 18 U.S.C § 1030.

  (2) An ex post facto violation occurred because the government retrospectively applied the 1996 version of § 1030, instead of the 1994 version;

  (3) The indictment was insufficient;

  (4) There was prosecutorial misconduct, including: (a) misusing an expert witness;

  (b) evidence tampering;

  (c) presenting false testimony;

(d) misleading the Appeals Court with false statements;
(f) engaging in character assassination;
(g) misleading the grand jury with false statements;
(5) Ineffective assistance of counsel in the following manner:
(a) Petitioner withdrew his appeal because of his counsel's "deception" or ineffectiveness;
(b) Counsel failed to motion for acquittal under Rule 29 of the Federal Rules of Criminal Procedure;
(c) Counsel failed to brief Petitioner on the issues relating to the Court's decision to grant the Petitioner's motion for a new trial;
(d) Counsel prevented Petitioner from testifying at trial
(e) Counsel did not present Petitioner's expert witness at trial; and
  (6) Newly discovered evidence shows Petitioner's actual innocence.

  B. Factual Background

  The evidence at trial showed that from 1985 to July 10, 1996, Petitioner worked at Omega Engineering ("Omega"), a company that manufactures highly specialized and sophisticated industrial measurement devices and control equipment for, among others, the U.S. Navy, NASA and Intel. Omega had a computer system that linked its offices in cities such as Newport, Boston, Bridgeport, and those in Europe. (App. 21, 28, 31, 32.) Petitioner held different positions at Omega, including Computer Numeric Control ("CNC") supervisor, Omega's only computer system administrator, and product engineer for new product development. (App. 37-39.) He was also the Novell systems administrator, through which he created levels of access to the file server for individuals in the CNC units. (App. 55, 81, 77.)

  Beginning in 1994 or 1995, Petitioner had problems interacting and cooperating with his co-workers. Later, he was transferred from supervisor of the CNC department to a manufacturing engineering support person. On June 5, 1996, he secretly interviewed for a position with W.L. Gore and Associates in Delaware.

  On July 31, 1996, the file server "Pureland One" on Omega's computer system would not initiate. (App. 101.) Tapes that contained backup copies of Omega's CNC programs were missing, although Petitioner was responsible for maintaining and placing these tapes in a file cabinet. Further, none of the computers had backup copies on their hard drives. (App. 109, 172.) The result of the incident was that the CNC programs used to manufacturer Omega's specialized products were lost. (App. 104, 170.)

  Omega later hired On Track Data International ("On Track") to discover the cause of and a resolution to the lost data. Greg Olson, director of worldwide data recovery services at On Track, determined that the computer programs used to make specialized products were irretrievably lost and that an intentional deletion and purging of information had occurred. (App. 547.) Olson located on the file server a string of computer commands having a "trigger date" of July 30, 1996 and they were based on a Microsoft Windows deletion program. Further, he concluded that the server had been set up so that on any date after July 30, 1996, massive amounts of information would be automatically deleted from the server whenever it was first booted up. (App. 562.) The string of computer commands programmed to delete information was called "Time Bomb." Olsen discovered that slightly altered versions of Time Bomb were run on February 21, 1996, April 21, 1996 and May 30, 1996. (App. 569.) A time card used to track Petitioner's working hours showed that on May 30,1996, the day when one version of Time Bomb was run, he left work at 8 o'clock at night. (App. 571.) On August 23, 1996, a Secret Service agent searched Petitioner's house and recovered two of the missing backup tapes that had been reformatted, a master hard drive from the file server, and numerous other items belonging to Omega. Olson examined the hard drive and found an exact match of the string commands from Time Bomb. (App. 571.)

  After massive amounts of data were deleted from the file server on July 31, 1996, Omega lost all the programs that had enabled it to tailor its products to the specific needs of its customers. Its manufacturing process was also made less efficient. (App. 448.) Omega had a nine percent decrease in its growth, equivalent to nine to ten million dollars of loss. (App. 452.)

  The government charged Petitioner on the theory that he installed the "Time Bomb" before his termination of employment, and that "it" detonated after he was fired from Omega. In response, the defense argued that the government's case was premised on a series of assumptions that could not be proven. The defense argued that the massive deletion of files could have resulted from an accident or have been caused by another employee. (App. 18-20.) At trial, nine former Omega employees testified that they never had problems with Petitioner and that he always behaved professionally. A recommendation letter by one of Omega's managers showed positive and complementary evaluations regarding Petitioner's performance at work. (App. 605.) Several witnesses testified that the change in Petitioner's position from CNC supervisor to engineering support person was not a demotion. The defense argued that because the change in position did not signal the termination of Petitioner's employment, he did not have a motive to commit the charged offense. (App. 605.) Further, several witnesses testified that numerous other Omega employees had supervisory-level access to the files. (App. 423, 679.) Two former employees also testified that they had copied files onto floppy discs and that their computers continued to operate after the server crash. In voir dire, an expert for Petitioner testified that he had recovered over 7,000 Omega files using WinHex, a software program that he took off the internet. (App. 746.) Nevertheless, the expert did not testify in front of the jury.

  On the appeal, the Third Circuit found that strong, uncontradicted evidence supported the verdict. Evidence that went unchallenged included the string of commands found on the hard drive in Petitioner's home that was identical to that used in the program that purged the Omega network of all its files; the testimony that the Time Bomb had been tested three times previously and that on each occasion Lloyd had stayed late at the office; Petitioner's willingness to accept up to $12,000 less in a job with W.L Gore than in his position at Omega; and Lloyd's comment to a W.L.Gore employee on July 31, 1996, the day Omega network crashed, that "everybody's job at Omega is in jeopardy." Lloyd, 269 F.3d 228, at 241.


  A. Standard of Review

  "A collateral challenge may not do service for an appeal." United States v. Frady, 456 U.S. 152, 165-166 (1982). "To obtain collateral relief, a prisoner must clear a significantly higher hurdle than would exist on direct appeal." Id. "Habeas corpus relief is generally available only to protect against a fundamental defect which inherently results in a complete miscarriage of justice or an omission inconsistent with the rudimentary demands of fair procedure." United States v. Deluca, 889 F.2d 503, 506 (3d Cir. 1989) (citing Hill v. United States, 368 U.S. 424, 428 (1962)).

  "A defendant procedurally defaults on any claims he may have by failing to raise objections during trial or failing to appeal." Frady, 456 U.S. 152, 167. "To avoid this default, he must demonstrate both `cause' for not having raised the point in question on direct appeal and `prejudice' to him as a result of this error, or his actual innocence." Id. A successful showing of ineffective assistance of counsel may satisfy the "cause" prong of a procedural default on other claims [that a petitioner raises on a habeas corpus motion], but only if the ineffectiveness rises to the level of a constitutional deprivation under Strickland. United States v. Mannino, 212 F.3d 835, 840 (3d Cir. 2000).

  "Claims of ineffective assistance of counsel, however, are properly addressed in the first instance by the district court in a § 2255 motion." United States v. Tobin, 155 F.3d 636, 643 (3d Cir. 1998). Thus, the Court may consider Petitioner's claim for ineffective assistance of counsel without Petitioner first having shown cause or prejudice.

  The Sixth Amendment states that "[i]n all criminal prosecutions the accused shall enjoy the right to have assistance of counsel for his defense." U.S. Const. Amend. VI. A defendant has a Sixth Amendment right not just to counsel but to "reasonable effective assistance of counsel." United States v. Day, 969 F.2d 39, 42 (3d Cir. 1992) (quoting Strickland v. Washington, 466 U.S. 668, 687 (1984)). Strickland provides a two-pronged test to determine whether there is ineffective assistance of counsel. Strickland 466 U.S. at 687. First, the defendant must demonstrate that counsel made serious errors. Id. at 688. To prove such deficiency, the defendant must show that counsel's representation fell below an objective standard of reasonableness. Id. Judicial scrutiny of counsel's performance is highly deferential. Id. at 689. Second, "[t]he defendant must show that the deficient performance prejudiced the defense. Id. at 687. This requires showing that counsel's ...

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