When is a phone not just a phone? When a federal court declares it’s a computer.

That’s what happened last week, when the 8th U.S. Circuit Court of Appeals upheld a lengthier sentence for a man for his use of a computer in commission of a crime.

Neil Kramer pleaded guilty in U.S. District Court in Springfield to bringing a 15-year-old girl across state lines in 2008 to have sex. But the man objected when federal prosecutors moved to make his sentence longer for use of a computer. Prosecutors argued his cellphone qualifies as a computer under the definition in federal law. U.S. District Judge Richard Dorr agreed, sentencing Kramer to 14 years in prison, a term that the judge said was more than two years longer than he otherwise would have imposed.

Kramer appealed, arguing he only used his phone to make calls and send text messages, so it shouldn’t be considered a computer. But a three-judge panel of the St. Louis-based 8th Circuit upheld the sentence, finding the federal definition of computer is broad enough to encompass cellphones.

Kramer’s Motorola Motorazr is capable of accessing the Interent, but the 8th Circuit specifically ruled that even a “dumb” cellphone should be considered a computer.

Prosecutors said the definition of computer is so dated that the Internet as we know it today didn’t exist then, so it isn’t addressed.

This is the first time a federal appeals court has ruled on whether a cellphone counts as a computer, said Don Ledford, a spokesman for the U.S. Attorney’s Office for Western Missouri.

Kramer’s attorney, assistant federal public defender Michelle Law, declined to comment on the decision.

Clocks and coffeemakers

The federal appeals court said it must rely on the statutory definition of computer, which says the term includes a data processing device that performs “logical, arithmetic or storage functions.” The law excludes most typewriters and handheld calculators.

The appeals court noted the broad array of everyday items that wording could cover, from clocks to coffeemakers, but said the sentencing guidelines appropriately rein in the potential enhancement to only apply if such devices were used to communicate with a minor.

“We acknowledge that a ‘basic’ cellular phone might not easily fit within the colloquial definition of ‘computer,'” the court said in an opinion written by Judge Roger Wollman, adding later, “But to the extent that such a sweeping definition was unintended or is now inappropriate, it is a matter for the [U.S. Sentencing] Commission or Congress to correct. We cannot provide relief from plain statutory text.”

The court also said that the legal definition is broad enough to cover a growing list of technology, including devices not yet invented. Showcasing human inability to predict the future, the court in a footnote pointed to a 1949 article in Popular Mechanics magazine which opined that “computers in the future may have only 1,000 vacuum tubes and perhaps weigh only 1.5 tons.”

Caselaw lacking

U.S. Attorney for Western Missouri Beth Phillips praised the ruling and said it will be beneficial for future prosecutions.

She also said old notions of what a computer is are changing.

“There’s an argument that the colloquial definition of a computer is broadening as we carry more iPhones, iPads, Blackberrys, devices that perform many functions that traditional landlines did not perform,” she said.

Her brief said a district court in Minnesota has looked at the issue, and that federal court found the cellphone in question in a civil dispute qualified as a computer.

But Kramer’s sentencing memorandum to Dorr said the Minnesota holding, in Czech v. Wall Street on Demand Inc., merely reflected an agreement between parties in civil litigation.

The defendant pointed to a different case, United States v. Lay, a 6th Circuit ruling related to sentencing enhancement. In that case, the appeals court looked at whether a longer sentence was appropriate when that defendant first befriended the victim through an Internet chat room but only expressed his desire for sex later, using just a cellphone. The court found the longer sentence proper, saying that to do otherwise would give unfair advantage to a criminal simply for switching the method of communication at the end.

But the 8th Circuit panel said in a footnote that judges in the Lay case didn’t squarely address whether the phone qualifies as a computer and so their decision offered no guidance here.

The case is United States v. Neil Scott Kramer, 10-1983.

Kelly Wiese is a reporter with Missouri Lawyers Media, a sister publication of New Orleans CityBusiness.

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