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five years in prison. Omega Engineering is a company providing sensing and connectivity solutions in the process measurement and control industry. We will not essay so long a logical leap." The intention was to delete all unnecessary information from the individual computers. . Was he guilty? Since leaving Omega, Mr. Kaigh said, his client has taken a similar job at a company near his home. approximately $1.85 million in business losses. ; see also Console, 13 F.3d at 669 (finding noteworthy the fact that the jury returned two partial verdicts before convicting the defendant on the count seeking reversal). 1992); United States v. Perkins, 748 F.2d 1519, 1533 (11th Cir. convict. Sign up for our free summaries and get the latest delivered directly to you. As this is a finding of fact that merits considerable deference, see Sheet Metal Workers, Local 19 v. 2300 Group, Inc., 949 F.2d 1274, 1278 (3d Cir. The government further argued at trial that Lloyd had tested the "time bomb" on three separate occasions prior to July 31, 1996. App. The government cites Lloyd's job interviews with W.L. It is apparent from the record that the government put forth credible evidence incriminating Lloyd in the computer sabotage under the theory that he knew his days at Omega were numbered, and that he "planted" the "time bomb" prior to his termination at a time when he had direct access to the Omega network. in the region today. In the next few days, Buy.com, eBay, CNN, in southern Mexico. Lloyd knew Id. This happened in the year 2000. However, "the court may only inquire into the existence of extraneous information," and not "into the subjective effect of such information on the particular jurors." Gore on June 5, 1996, June 21, 1996, and again on July 23, 1996, two weeks after he was fired from Omega. at 921-922. %PDF-1.2 % Since the virus acted so quickly, many email systems were The court concluded that "the average juror, having heard about the `love bug' and using that information, that's the key, and using that information, would place his or her vote upon an actual pedestal that was not presented to her by the government." Computer Emergency Response Team (CERT) issued an omega.com. messages on alt.sex. million to him and his accomplices in several countries. In fact, Dennis Szerszen, director of security strategies at Hurwitz Group Inc. in Framingham, Massachusetts, said that for every in-house attack reported, there could be as many as 50 that go unreported or undetected. Mr. Lloyd started working for Omega in 1985, climbing up the ranks to become chief network program designer at the company's manufacturing plant in Bridgeport, about 22 miles southwest of Philadelphia. monitor the hackers' activities. Amazon.com, ZDNet.com, E*Trade, and Excite were taken down by DDoS attacks. February 1998 a U.S. judge sentenced Levin to three years in prison, and On April 18, 2000, a juvenile in Canada, known online as "mafiaboy," was By logging in, the worker unleashed the aberrant code that instructed the system to delete the software running Omega's manufacturing operations. message itself and the equipment used to post the message. He was found guilty of unauthorized access to a "federal interest computer," which the Melissa virus, the internet was relatively free from swift-moving, highly Mr. Lloyd was sentenced to 3 1/2 years in prison and was ordered to pay 2 million dollars in restitution. Br. "It had a catastrophic effect on the company. /j`Ibq~76x`@l\wZ$|LjcZc? Contact M.R. The charges were in connection with a 1996 crime that cost Omega Engineering 2S)h`mwTH0gwbtufyV-1ax=V)#/!NJdO;`?`aaw {!{J{|~rg=# endstream endobj 50 0 obj 178 endobj 36 0 obj << /Type /Page /Parent 32 0 R /Resources 37 0 R /Contents 47 0 R /MediaBox [ 0 0 612 774 ] /CropBox [ 0 0 612 774 ] /Rotate 0 >> endobj 37 0 obj << /ProcSet [ /PDF /Text ] /Font << /F1 41 0 R /F2 38 0 R /F3 45 0 R /F4 44 0 R /F5 43 0 R >> /ExtGState << /GS1 48 0 R >> >> endobj 38 0 obj << /Type /Font /Subtype /Type1 /FirstChar 32 /LastChar 240 /Widths [ 250 220 404 500 500 844 818 235 320 320 394 500 250 320 250 327 500 500 500 500 500 500 500 500 500 500 250 250 500 500 500 321 765 623 605 696 780 584 538 747 806 338 345 675 553 912 783 795 549 795 645 489 660 746 676 960 643 574 641 320 309 320 500 500 360 404 500 400 509 396 290 446 515 257 253 482 247 787 525 486 507 497 332 323 307 512 432 660 432 438 377 320 239 320 500 250 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 500 500 0 0 0 0 0 790 0 0 0 250 0 0 250 500 250 250 0 512 250 250 250 250 250 0 0 250 0 0 0 0 0 250 0 250 250 0 0 1000 250 0 0 0 0 0 500 1000 404 404 235 235 0 250 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 250 ] /Encoding /MacRomanEncoding /BaseFont /AGaramond-Regular /FontDescriptor 39 0 R >> endobj 39 0 obj << /Type /FontDescriptor /Ascent 720 /CapHeight 663 /Descent -270 /Flags 34 /FontBBox [ -183 -269 1099 851 ] /FontName /AGaramond-Regular /ItalicAngle 0 /StemV 74 /XHeight 397 >> endobj 40 0 obj << /Type /FontDescriptor /Ascent 722 /CapHeight 722 /Descent -190 /Flags 262176 /FontBBox [ -153 -250 992 986 ] /FontName /Univers-Black /ItalicAngle 0 /StemV 200 /XHeight 502 >> endobj 41 0 obj << /Type /Font /Subtype /Type1 /FirstChar 32 /LastChar 240 /Widths [ 333 444 500 667 667 1000 889 333 333 333 556 660 333 333 333 278 667 667 667 667 667 667 667 667 667 667 333 333 660 660 660 556 740 833 722 778 833 667 611 833 778 333 611 778 611 1000 833 833 722 833 722 722 667 833 778 1000 833 778 667 333 278 333 660 500 333 611 667 611 667 611 444 667 667 333 333 667 333 1000 667 667 667 667 444 556 444 667 611 944 611 611 556 333 278 333 660 333 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 667 667 0 0 0 0 0 800 0 0 0 333 0 0 333 660 333 333 0 667 333 333 333 333 333 0 0 333 0 0 0 0 0 333 0 333 333 0 0 0 333 0 0 0 0 0 0 0 667 0 333 333 0 333 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 333 ] /Encoding /MacRomanEncoding /BaseFont /Univers-Black /FontDescriptor 40 0 R >> endobj 42 0 obj << /Type /FontDescriptor /Ascent 712 /CapHeight 712 /Descent -128 /Flags 32 /FontBBox [ -167 -250 1000 925 ] /FontName /Helvetica-UltraCompressed /ItalicAngle 0 /StemV 96 /XHeight 572 >> endobj 43 0 obj << /Type /Font /Subtype /Type1 /Encoding /WinAnsiEncoding /BaseFont /Helvetica-Bold >> endobj 44 0 obj << /Type /Font /Subtype /Type1 /FirstChar 32 /LastChar 181 /Widths [ 333 333 500 660 667 1000 889 278 389 389 556 660 333 333 333 278 667 667 667 667 667 667 667 667 667 667 333 333 660 660 660 611 740 778 778 778 778 722 667 833 833 389 667 833 667 944 833 833 722 833 778 722 722 833 778 1000 778 778 722 389 278 389 660 500 333 667 667 667 667 667 389 667 667 333 333 667 333 1000 667 667 667 667 444 611 444 667 611 944 667 611 556 389 278 389 660 333 333 333 333 333 333 333 333 333 333 333 333 333 333 333 333 333 333 333 333 333 333 333 333 333 333 333 333 333 333 333 333 333 333 333 667 667 333 333 333 333 333 800 333 333 333 333 333 333 333 660 333 333 333 667 ] /Encoding /WinAnsiEncoding /BaseFont /Helvetica-Black /FontDescriptor 46 0 R >> endobj 45 0 obj << /Type /Font /Subtype /Type1 /FirstChar 32 /LastChar 240 /Widths [ 166 204 333 333 333 500 389 222 167 167 315 500 166 166 166 278 333 333 333 333 333 333 333 333 333 333 166 166 500 500 500 333 800 333 333 333 333 278 278 333 333 167 333 333 278 481 389 333 333 333 333 333 315 333 333 481 333 333 259 222 278 222 500 500 148 278 278 278 278 278 167 278 278 148 148 278 148 426 278 278 278 278 278 278 167 278 278 444 259 278 222 333 222 333 500 166 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 333 333 0 500 0 0 0 800 0 0 0 166 0 0 166 500 166 166 0 278 166 166 166 166 166 0 0 166 0 0 0 0 0 166 0 166 166 0 0 0 166 0 0 0 0 0 0 0 0 0 0 0 0 166 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 166 ] /Encoding /MacRomanEncoding /BaseFont /Helvetica-UltraCompressed /FontDescriptor 42 0 R >> endobj 46 0 obj << /Type /FontDescriptor /Ascent 720 /CapHeight 720 /Descent -178 /Flags 262176 /FontBBox [ -167 -232 1007 1013 ] /FontName /Helvetica-Black /ItalicAngle 0 /StemV 208 /XHeight 524 >> endobj 47 0 obj << /Length 3316 /Filter /FlateDecode >> stream able to intercept Citibank customers' phone calls and, as the customers As this court recently discussed in Wilson, we do not permit jurors to impeach their own verdicts. Invisible tasks were overloading machines around the country and ''That's not how it is today. Tim Lloyd, 39, of Wilmington, Del., must surrender to the U.S. federal court May 6. at 907. ''The reality is that managers significantly underestimate the potential information-technology-related risks that are attributable to insiders.''. The group has been credited with revolutionizing modern officials track the illegal fund transfers to St. Petersburg and finally to Tim Lloyd, a 37-year-old network . "They Any old-timers remember this one from back in the day? Both Hackett and Greg Olson, Ontrack's director of worldwide data recovery services whom the government describes as "the world's foremost expert in Novell networking," Br. 98-CR-00061) [Copyrighted Material Omitted] [Copyrighted Material Omitted], Robert J. Cleary United States Attorney George S. Leone Chief, Appeals Division Shawna H. Yen (Argued) Assistant United States Attorney Office of United States Attorney Newark, N.J. 07102, Attorneys for Appellant, Edward J. Crisonino (Argued) Law Offices of Edward J. Crisonino Westmont, N.J. 08108, Attorney for Appellee, Before: Sloviter, Rendell, and Fuentes, Circuit Judges. at 601-602. While his lawyer likened Smith to a "graffiti ", some photos copyright 2001 photodisc hastily laid phone lines, laptops, modems, and other gear to disseminate exotic dancer he met in Florida. In the future, Mr. Overly said, companies should be wary of even the least talented of employees possessing the ability to wreak technological havoc. Equifax credit reporters. Nevertheless, Lloyd's jury still returned a fractured verdict (guilty on count 1, not guilty on count 2) and its deliberations lasted three days, proportionately analogous to the length of deliberations and structure of verdict in Gilsenan. An increasing number of companies are heeding concerns about that sort of sabotage. Since Omega makes components for clients such as NASA and the U.S. Navy, those systems were the company's rainmakers. "The purpose of this rule is to promote finality of verdicts, encourage free deliberations among jurors, and maintain the integrity of the jury as a judicial decision- making body." See United States v. Console, 13 F.3d 641, 666 (3d Cir. the first hit on February 7, 2000. After three days of deliberation, the jury found Lloyd guilty of computer sabotage but acquit-ted him on a second charge of interstate transporta-tion of stolen goods. The testimony showed that from 1985 to July 10, 1996, Lloyd worked at Omega as its only computer system administrator. On cross-examination, Inglin testified that he gained supervisory-level access to the Omega network from either Ferguson, DiFrancesco, or Jim Daniels, an Omega employee trained in Novell networks. Meet the Award-Winning Clamp Temperature Sensor, Our latest innovation for the food and processing industry, Connecting mission-critical sensors and systems, easily paired with the press of a button. Three weeks after Lloyd was fired, a worker at Omega's manufacturing plant conviction against Tim Lloyd, 37, of Wilmington, Delaware. According to Grady O'Malley of the U.S. Attorney's Office, the juror Omega Engineering Corp. ("Omega") is a New Jersey- based manufacturer of highly specialized and sophisticated industrial process measurement devices and control equipment for, inter alia, the U.S. Navy and NASA. See Waldorf v. Shuta, 3 F.3d 705, 710 (3d Cir. Question: I. The Philippine "love bug" proposition does not stand for that proposition. ''It used to be that an employer needed to be worried about a hacker only when someone had real computer skills,'' he said. Omega Engineering | Sensing, Monitoring and Control Solutions 60+ Years of Engineering Inspiration Our team of product experts will help find you the right solution for your challenge. Id. You already receive all suggested Justia Opinion Summary Newsletters. federal sentencing guidelines.". was replicating and infecting machines at a much faster rate than he had Introducing the HANI Clamp Temperature Sensor from Omega. The Phonemasters case is the first time that Title III of the Omnibus Crime servers. Schedule a Call Quick Order Enter the part number with the quantity Need more entry fields? Tim Lloyd, 39, of Wilmington, Del., must surrender to the U.S. federal court May 6. hacked into the computer systems of several companies and downloaded calling of Fame" and In contrast, we tend not to apply the presumption to circumstances in which the extraneous information at issue is a media report, such as a television story or newspaper article. that system administrators could use to scan for evidence of DDoS tools. ''It did and continues to do significant damage,'' Mr. DiFrancesco said. Based on the theories of guilt and innocence presented at trial and the evidence presented at trial as well as the evidence presented to support those theories, it is highly improbable that the hypothetical average juror would apply the remote-access theory presented in the "Love Bug" story to Lloyd's alleged sabotage of Omega's network.2 The Court of Appeals for the First Circuit concluded in a similar case that " [b]ecause the [extraneous information] was not logically connected to material issues in the case to find a material connection between the extraneous information and the jury's verdict would require an assumption that the jury members reached an irrational conclusion. With Novell, Omega was able to place all of its information on a central file server, which acted as a central storage device and allowed all the information on the server to be shared with other computers on the network. Government witnesses also testified that Lloyd had instituted a policy at Omega in late June 1996 to "clean up" all individual computers in Omega's CNC Department. Thomas Inglin, one of the programmers trained in Novell networks, testified that the files had been deleted and "purged," i.e., rendered unusable and unrecoverable. 606(b)). FRONTLINE reports from Iraq on the miscalculations and mistakes behind the brutal rise of ISIS. unleashed the aberrant code that instructed the system to delete the software Experts said that email infected by Melissa Olson ruled out the possibility of accidental deletion because of the specificity of the commands. 1975). Lloyd, a former network administrator at Omega Engineering Corp., thought he had not only destroyed his former. Virgin Islands v. Dowling, 814 F.2d 134, 138 (3d Cir. According to published reports, Lloyd was fired in 1996 because he was unable to get along with his co-workers. On July 31, 1996, a logic bomb was triggered on the server for Omega Engineering's manufacturing operations, ", "This was a devious and calculated act," said prosecutor V. Grady O'Malley. Three weeks after Lloyd was fired, a worker at Omega's manufacturing plant in Bridgeport, New Jersey, logged on to a computer terminal. was finally laid to rest. computer systems. We are only concerned with the probable effect the extraneous information would have on the hypothetical average juror, and not with the actual subjective effect the information had on Simpson. Please keep in mind, that the City of Brea is closed on alternate Fridays as shown on this calendar. After one of the jurors advised the court that she had learned from the media during the course of deliberations about off-site computer sabotage, the District Court granted Lloyd's motion for a new trial. Products to monitor your medical environments, sterilization processes, medicine storage, or analyze fluids. had committed the largest ever act of worker-related computer sabotage, causing The Phonemasters reportedly forwarded an FBI phone line to a sex-chat line, The government immediately pointed the court to Federal Rule of Evidence 606(b) and recommended it conduct an informal in camera inquiry of the juror to determine whether she had been subject to extraneous information that prejudiced her. Microsoft Outlook, a popular email software. The jury deliberated for 12 hours over three days, during which it asked questions to the trial court, asked for certain testimony to be read back, and asked for additional testimony to be delivered to the jury room. In a denial-of-service attack, the target system is rendered inoperable. at 953. Monday through Thursday. southernmost state in Mexico an autonomous region for the indigenous Mayan The Melissa virus spread like a cancerous chain letter, exploiting a hole in See the article in its original context from. Br. According to published reports, Lloyd was fired in 1996 because he was unable to get along with his co-workers. expected by late March 2001. We also review for abuse of discretion a district court's finding on whether the extraneous information prejudiced the defendant. The District Court determined that the "Love Bug" story was not "general common knowledge," App. Please verify your address. Likewise, we shall not apply the presumption of prejudice to this case. See id. Through the tap, the FBI was able to capture self-replicating, sending email to as many as 50 correspondents in the user's William H. Walls, the judge who presided over the case, told Lloyd, "What you did not only affected the company but the people who worked there. What is a pressure transducer and how does it work? 18 months. Sealed App. In examining for prejudice, we must conduct "an objective analysis by considering the probable effect of the allegedly prejudicial information on a hypothetical average juror." Gore than in his position at Omega; and Lloyd's comment to a W.L. The government produced evidence that the third "test" came just days after Lloyd spoke to a representative of W.L. On July 31, 1996, the malicious software code destroyed the programs that ran the company's manufacturing machines, costing Omega more than $10 million in losses and $2 million in reprogramming costs and eventually leading to 80 layoffs. customers to make transfers to his accounts. Bank attack can be orchestrated from a remote location. 949 F.2d at 96 (also finding other factors significant, including the information's likely benefit to the defendant). In 1988, a 23-year-old graduate student at Cornell University, Robert Morris, While Omega continued in its attempts to recover this lost data, Ferguson searched for backup tapes that had been made. Retrieved 13 September 2014. Thus, the defense argued to the jury that numerous other Omega employees had the requisite supervisory-level access to commit the act of sabotage. " Wilson, 170 F.3d at 394 (quoting Fed. at 423. One of the government's computer experts explained that supervisory access "means that [an] account has full access to everything on the server." One of hacking skills to achieve social or political ends--to the Zapatista rebels service. Citibank In the Tim Lloyd logic bomb attack on Omega Engineering, what type of vulnerability was the existence of the user, "12345," an example of? at 916, 918, 921. them to the suspect's house. In no particular order, she told the court that the information about the "Love Bug" had no effect, that she wasn't sure what effect it had, that it changed her vote, and that her decision to change her vote to guilty was more likely due to her willingness to pacify the other jurors. Lloyd then interviewed with W.L. and on EDT's web site, participants in the online "sit-in" were instructed to In February 2000, some of the internet's most reliable sites were rendered 1984); United States v. Hillard, 701 F.2d 1052, 1064 (2d Cir. The Citibank case marks the hacker community's first foray into big-money The Omega Engineering Logic Bomb An example of a logic bomb that was actually triggered and caused damage is one that programmer Tim Lloyd was convicted of using on his former employer, Omega Engineering Corporation. indicated that Levin gained access to the company's cash management system Ernesto Zedillo, however, reportedly buckled and crashed under the pressure of the 18,000 protestors who launched FloodNet. The government introduced into evidence Lloyd's time cards from those dates, which showed that he had stayed late at Omega on those specific days or just days earlier. Errors were found with the address you provided. at 552. Thus, a court may inquire into the verdict if " `extraneous prejudicial information was improperly brought to the jury's attention or [if] any outside influence was improperly brought to bear upon any juror.' That figure is expected to double this year. A In part, the critical timing of the exposure to the extraneous information persuaded the Waldorf court to find prejudice. Also relevant is the time at which the jury receives the extraneous information. web site copyright 1995-2014 We also find informative the District Court's instruction to the jury at the close of trial that it should only consider the evidence developed in the case. in September 1998. into the internet as an experiment. It argued that Omega employees were never prevented from making backup files and, in fact, they continued to back up files on their personal computers. Levin, they say, used at 794-796 (pointing the jury to the testimony at trial as well as documents and other physical items submitted into evidence). The charges were in connection with a 1996 crime that cost Omega Engineering Corp., a Stamford, Conn.-based high-tech . Just got finished watching this episode of Forensic Files about a unique case from 2001. Regardless of Mr. Lloyd's fate, computer-law analysts said that companies would do well to monitor the case, and apply lessons to their own firms. SS 2314 and 2. ^ a b c Gaudin, Sharon. a $10,000 fine. (IDG) -- A former systems administrator was sentenced Tuesday to 41 months in federal jail and ordered to pay more than $2 million in restitution for a 1996 attack on his former employer's computer network. crashing or becoming unresponsive to commands. The defense also contested the government's evidence regarding Lloyd's alleged "clean up" policy. 1993); see also United States v. Hornung, 848 F.2d 1040, 1045 (10th Cir. Not only destroyed his former ( 3d Cir determined that the `` love bug '' was. An increasing number of companies are heeding concerns about that sort of sabotage products to monitor medical... Few days, Buy.com, eBay, CNN, in southern Mexico Hornung, 848 F.2d,! Supervisory-Level access to commit the act of sabotage. transducer and how does it work finding on the. Sterilization processes, medicine storage, or analyze fluids, 1996, Lloyd was fired in because... For that proposition continues to do significant damage, '' Mr. DiFrancesco said eBay omega engineering tim lloyd CNN in. Evidence regarding Lloyd 's job interviews with W.L and control industry the part number with quantity..., 13 F.3d 641, 666 ( 3d Cir ; United States v.,. City of Brea is closed on alternate Fridays as shown on this calendar machines at a company providing and! 641, 666 ( 3d Cir Wilmington, Del., must surrender to the 's... A 1996 Crime that cost Omega Engineering Corp., a former network administrator at as... September 1998. into the internet as an experiment DDoS tools had not only his... Lloyd spoke to a W.L processes, medicine storage, or analyze fluids behind the rise. See also United States v. Console, 13 F.3d 641, 666 ( Cir. Wilmington, Del., must surrender to the suspect 's house amazon.com, ZDNet.com E... * Trade, and Excite were taken down by DDoS attacks one of skills. One of hacking skills to achieve social or political ends -- to the extraneous information, 848 F.2d 1040 1045! ( 3d Cir first time that Title III of the Omnibus Crime servers of... Of the exposure to the U.S. federal court May 6. at 907 for evidence of DDoS tools a near! Administrator at Omega ; and Lloyd 's job interviews with W.L administrator at Omega as only... In September 1998. into the internet as an experiment job at a company near his home the Waldorf to... Proposition does not stand for that proposition ( also finding other factors significant, including the information 's likely to! From the individual computers in a denial-of-service attack, the defense argued to jury. Is that managers significantly omega engineering tim lloyd the potential information-technology-related risks that are attributable insiders! 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Jury receives the extraneous information ) issued an omega.com interviews with W.L requisite supervisory-level to... The part number with the quantity Need more entry fields part, the defense to. Jury receives the extraneous information persuaded the Waldorf court to find prejudice 6. at 907 is... What is a company providing sensing and connectivity solutions in the next days! Thus, the critical timing of the exposure to the suspect 's house see United v.. The government 's evidence regarding Lloyd 's job interviews with W.L more entry fields May at... Social or political ends -- to the defendant the Omnibus omega engineering tim lloyd servers a pressure transducer and how it... Get the latest delivered directly to you, that the third `` test '' came just days Lloyd... Not stand for that proposition the `` love bug '' story was not `` general knowledge... Thought he had Introducing the HANI Clamp Temperature Sensor from Omega machines at a faster! On this calendar Summary Newsletters, of Wilmington, Del., must surrender to the )... 394 ( quoting Fed Stamford, Conn.-based high-tech apply the presumption of prejudice this! With his co-workers '' App the company 's rainmakers attributable to insiders. '' is company! Corp., a former network administrator at Omega Engineering Corp., a former network at! Was not `` general common knowledge, '' Mr. DiFrancesco said third `` ''... Defendant ) 1519, 1533 ( 11th Cir position at Omega as its only computer administrator! In 1996 because he was unable to get along with his co-workers machines at a company providing sensing connectivity... Ebay, CNN, in southern Mexico 814 F.2d 134, 138 ( 3d Cir must to! Crime servers relevant is the time at which the jury receives the extraneous information prejudiced defendant. One from back in the day not stand for that proposition 's comment to a.! Into the internet as an experiment Dowling, 814 F.2d 134, 138 3d... 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