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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
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.
G. GETTING BAIL
In the past, the Feds might simply have executed their raid
and then left without arresting you. Presently this method will
be the exception rather than the rule and it is more likely that
you will be taken into custody at the time of the raid. Chances
are also good that you will not be released on bail. This is part
of the government's plan to break you down and win their case.
If they can find any reason to deny you bail they will. In order
to qualify for bail, you must meet the following criteri a:
- You must be a resident of the jurisdiction in which you
- You must be gainfully employed or have family ties to the
- You cannot have a history of failure to appear or escape.
- You cannot be considered a danger or threat to the community.
In addition, your bail can be denied for the following reasons:
- Someone came forward and stated to the court that you said
you would flee if released.
- Your sentence will be long if convicted.
- You have a prior criminal history.
- You have pending charges in another jurisdiction.
What results from all this "bail reform" is that
only about 20% of persons arrested make bail. On top of that it
takes 1-3 weeks to process your bail papers when property is involved
in securing your bond.
Now you're in jail, more specifically you are either in an
administrative holding facility or a county jail that has a contract
with the Feds to hold their prisoners. Pray that you are in a
large enough city to justify its own Federal Detention Center.
County jails are typically the last place you would want to be.
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