|
|
B. PREPARING FOR TRIAL
I've been trying to be overly simplistic with my explanation. The United
States Sentencing Guidelines (U.S.S.G.), are in fact quite complex. So much
so that special law firms are forming that deal only with sentencing. If
you get busted, I would highly recommend hiring one. In some cases it might
be wise to avoid hiring a trial attorney and go straight to one of these
"Post Conviction Specialists." Save your money, plead out, do your time.
This may sound a little harsh, but considering the fact that the U.S.
Attorney's Office has a 95% conviction rate, it may be sage advice.
However, I don't want to gloss over the importance of a ready for trial
posturing. If you have a strong trial attorney, and have a strong case, it
will go a long way towards good plea bargain negotiations.
C. PLEA AGREEMENTS AND ATTORNEYS
Your attorney can be your worst foe or your finest advocate. Finding the
proper one can be a difficult task. Costs will vary and typically the
attorney asks you how much cash you can raise and then says, "that amount
will be fine". In actuality a simple plea and sentencing should run you
around $15,000. Trial fees can easily soar into the 6 figure category. And
finally, a post conviction specialist will charge $5000 to $15,000 to
handle your sentencing presentation with final arguments.
You may however, find yourself at the mercy of The Public Defenders Office.
Usually they are worthless, occasionally you'll find one that will fight
for you. Essentially it's a crap shoot. All I can say is if you don't like
the one you have, fire them and hope you get appointed a better one. If
you can scrape together $5000 for a sentencing (post conviction) specialist
to work with your public defender I would highly recommend it. This
specialist will make certain the judge sees the whole picture and will
argue in the most effective manner for a light or reasonable sentence. Do
not rely on your public defender to thoroughly present your case. Your
sentencing hearing is going to flash by so fast you'll walk out of the
court room dizzy. You and your defense team need to go into that hearing
fully prepared, having already filed a sentencing memorandum.
The plea agreement you sign is going to affect you and your case well after
you are sentenced. Plea agreements can be tricky business and if you are
not careful or are in a bad defense position (the case against you is
strong), your agreement may get the best of you. There are many issues in a
plea to negotiate over. But essentially my advice would be to avoid signing
away your right to appeal. Once you get to a real prison with real
jailhouse lawyers you will find out how bad you got screwed. That issue
notwithstanding, you are most likely going to want to appeal. This being
the case you need to remember two things: bring all your appealable issues
up at sentencing and file a notice of appeal within 10 days of your
sentencing. Snooze and loose.
I should however, mention that you can appeal some issues even though you
signed away your rights to appeal. For example, you can not sign away your
right to appeal an illegal sentence. If the judge orders something that is
not permissible by statute, you then have a constitutional right to appeal
your sentence.
I will close this subpart with a prison joke. Q: How can you tell when your
attorney is lying? A: You can see his lips moving.
D. CONSPIRACY
Whatever happened to getting off on a technicality? I'm sorry to say those
days are gone, left only to the movies. The courts generally dismiss many
arguments as "harmless error" or "the government acted in good faith". The
most alarming trend, and surely the root of the prosecutions success, are
the liberally worded conspiracy laws. Quite simply, if two or more people
plan to do something illegal, then one of them does something in
furtherance of the objective (even something legal), then it's a crime.
Yes, it's true. In America it's illegal to simply talk about committing a
crime. Paging Mr. Orwell. Hello?
Here's a hypothetical example to clarify this. Bill G. and Marc A. are
hackers (can you imagine?) Bill and Marc are talking on the phone and
unbeknownst to them the FBI is recording the call. They talk about hacking
into Apple's mainframe and erasing the prototype of the new Apple Web
Browser. Later that day, Marc does some legitimate research to find out
what type of mainframe and operating system Apple uses. The next morning,
the Feds raid Marc's house and seize everything that has wires. Bill and
Marc go to trial and spend millions to defend themselves. They are both
found guilty of conspiracy to commit unauthorized access to a computer system.
E. SENTENCING
At this point it is up to the probation department to prepare a report for
the court. It is their responsibility to calculate the loss and identify
any aggravating or mitigating circumstances. Apple Computer Corporation
estimates that if Bill and M arc would have been successful it would have
resulted in a loss of $2 million. This is the figure the court will use.
Based on this basic scenario our dynamic duo would receive roughly
three-year sentences.
As I mentioned, sentencing is complex and many factors can decrease or
increase a sentence, usually the latter. Let's say that the FBI also found
a file on Marc's computer with 50,000 unauthorized account numbers and
passwords to The Microsoft Network. Even if the FBI does not charge him
with this, it could be used to increase his sentence. Generally the
government places a $200-per-account attempted loss on things of this
nature (i.e. credit card numbers and passwords = access devices). This
makes for a $10 million loss. Coupled with the $2 million from Apple, Marc
is going away for about nine years. Fortunately there is a Federal Prison
not too far from Redmond, WA so Bill could come visit him.
Some of the other factors to be used in the calculation of a sentence might
include the following: past criminal record, how big your role in the
offense was, mental disabilities, whether or not you were on probation at
the time of the offense, if any weapons were used, if any threats were
used, if your name is Kevin Mitnick (heh), if an elderly person was
victimized, if you took advantage of your employment position, if you are
highly trained and used your special skill, if you cooperated with the
authorities, if you show remorse, if you went to trial, etc.
These are just some of the many factors that could either increase or
decrease a sentence. It would be beyond the scope of this article to cover
the U.S.S.G. in complete detail. I do feel that I have skipped over some
significant issues. Neverthele ss, if you remember my two main points in
addition to how the conspiracy law works, you'll be a long way ahead in
protecting yourself.
F. USE OF A SPECIAL SKILL
The only specific "sentencing enhancement" I would like to cover would be
one that I am responsible for setting a precedent with. In U.S. v Petersen,
98 F.3d. 502, 9th Cir., the United States Court of Appeals held that some
computer hackers may qualify for the special skill enhancement. What this
generally means is a 6 to 24 month increase in a sentence. In my case it
added eight months to my 33-month sentence bringing it to 41 months.
Essentially the court stated that since I used my "sophisticated" hacking
skills towards a legitimate end as a computer security consultant, then the
enhancement applies. It's ironic that if I were to have remained strictly a
criminal hacker then I would have served less time.
The moral of the story is that the government will find ways to give you as
much time as they want to. The U.S.S.G. came into effect in 1987 in an
attempt to eliminate disparity in sentencing. Defendants with similar
crimes and similar backgrounds would often receive different sentences.
Unfortunately, this practice still continues. The U.S.S.G. are indeed a
failure. |
|