24 April 1999
Source: Hardcopy of 29 pages from Gene Grantham, Carl Johnson's (now former) attorney.
See Mr. Grantham's Memorandum in Support of Motion to Dismiss Counts 1-5 of the Indictment: http://jya.com/cej-mtd.htm
See related files: http://jya.com/cejfiles.htm
|GENE M. GRANTHAM
500 Maynard Building
April 17, 1999
251 W. 89th Street
New York, NY
Re: Carl Johnson
I enclose copies of the government's trial brief and superseding indictment. These are not on my computer or I would just e-mail them to you.
I have a copy of the 59 page Report of Investigation dated 3/27/99 from the Carl Johnson web site. This is proving to be helpful in the case and is slightly more detailed than the pre-trial discovery they are required to provide to defense counsel. I am curious how this was located and what is necessary to access the report, in this and other cases. I am assuming it is public record somewhere. Perhaps you could tell me, in confidence if you wish, where a report like this can be retrieved. I would like to be able to find similar reports in other cases.
Very truly yours,
[Footer all pages]
|GOVERNMENT'S TRIAL BRIEF/JOHNSON--1 through 29
UNITED STATES ATTORNEY
CERTIFICATE OF SERVICE
I certify that a copy of the foregoing
document to which this certificate is
attached was delivered to the attorneys
of record of plaintiff, defendant, on
the 2nd day of April 1999.
UNITED STATES ATTORNEY
UNITED STATES DISTRICT COURT
|UNITED STATES OF AMERICA,
CARL E. JOHNSON,
COMES NOW THE UNITED STATES OF AMERICA, by and through Katrina C. Pflaumer, United States Attorney for the Western District of Washington, and Floyd Short and Robb London, Assistants United States Attorney for said district, and submits the following Trial Brief in this matter. Trial is presently scheduled to begin on April 12, 1999, at 9:30 a.m.
I. STATUS OF THE CASE
The defendant was charged by Complaint on August 5, 1998, with a single, omnibus count of threatening federal judges and officers via the Internet in retaliation for the performance of their official duties, under Title 18, United States Code, Section 155. Multiple threats were charged under a single count. He was arrested on the Complaint in Tucson, Arizona, on August 18, 1998. At his initial appearance in that district, a competency evaluation was ordered by the Magistrate Court in Tucson, and the defendant was ultimately found competent to stand trial. In the interim, the Grand Jury in this district returned a one-count indictment identical to the charge in the complaint. The Government advised defense counsel that in the event this matter went to trial, the Government would present a Superseding Indictment to the Grand Jury, breaking out the various threats into individual, separate counts. On March 4, 1999, the Grand Jury returned a Superseding Indictment charging the defendant with five separate counts under Title 18, United States Code, Sections 115 (Retaliatory Threats Against Judicial Officer), 1503 (Obstruction of Justice), and 875(c) (Threatening Communications in Interstate or Foreign Commerce).
At trial, the United States anticipates calling approximately 25 witnesses, and estimates that the trial will last three to four days. Defendant is represented by Gene Grantham, although the court has stated that it will consider allowing the defendant to examine some witnesses himself because of his claimed expertise in the realm of computer technology.
The Government expects to prove the following facts at trial:
A. The Context of Violence: The Jim Bell Search Warrant, the Noxious Bomb Attack on the IRS, Sarin Gas, and the Assassination Politics Essay
On March 28, 1997, Inspector Jeffrey Gordon of the Internal Revenue Service ("IRS") applied for a search warrant for the residence of James Bell. Bell was the target of an IRS investigation regarding the use of false social security numbers as well as threats and obstruction of justice relating to his involvement in "common law" courts that targeted and threatened IRS employees. United States Magistrate Judge J. Kelley Arnold signed the search warrant, and the IRS executed it on April 1, 1997. The search of Bell's residence uncovered, among other things, computer files containing a treatise authored by Bell that he called "Assassination Politics," which reflected Bell's hatred of government officials. The treatise described an online Internet scheme whereby people could place anonymous, electronic cash (or "eCa$h") "bets" predicting the exact dates and times of the deaths of particular public officials. The winner -- who would know the correct date and time of an official's death by virtue of being the assassin himself -- would receive all the "bets." Thus, people desiring the death of a government official could make anonymous contributions to establish a bounty that could be claimed by an anonymous assassin.
The IRS search of Bell's computer also uncovered several March 1997 e-mail messages between Bell and the defendant, who used the name "Toto" and the Internet e-mail address "firstname.lastname@example.org." The e-mail exchanges include the defendant's requests for additional information from Bell about Assassination Politics. Sympatico is an Internet Service Provider ("ISP'') located in Saskatchewan. Defendant used an account with Sympatico for his connection to the Internet in order to send and receive e-mail and in order to host a World Wide Web site under the name "Carljohn" (the "Carljohn website").
During the search of Bell's residence, law enforcement officers were particularly disturbed to discover a variety of hazardous chemicals, including ingredients for a variation of the deadly nerve agent known as Sarin gas, a compound that received world wide attention several years ago when members of a Japanese cult released it into the Tokyo subway system, killing and injuring scores of people.
B. Defendant's Support of Jim Bell; The Cypherpunks and PGP Encryption
On May 16, 1997, Bell was arrested by IRS inspectors.1 The arrest attracted considerable press attention in Washington and Oregon, especially because of the possibility that Bell had been experimenting with nerve agents in a populated urban area. The arrest was also the subject of e-mail discussion among some of Bell's fellow Cypherpunks on the Internet. Five days later, the defendant posted an e-mail message discussing Bell to a mailing list comprised of "Cypherpunks," a group of as many as five hundred Internet users interested in encryption technology and the government's regulation of such technology. There are several interconnected Cypherpunks mailing lists, each of which was structured so that the defendant, or anyone else, could send an e-mail message to the list, and the message would then be forwarded to every member of the lists. It is extremely important to bear in mind that the Cypherpunks lists are all public lists -- that is, any e-mail that is sent to (or "posted") to these lists is publicly available on the Internet. One need not even be a member of the group to be able to read e-mails posted to these lists. Thus, any death threat that is posted to one of these lists is, by definition, publicly communicated. Both Bell and the defendant were members of the list, which is open to anyone and even includes as members various persons involved in law enforcement. Cypherpunks e-mail messages are archived and available to anyone on the World Wide Web and are often posted to Usenet as well.2
1 Bell was prosecuted in the Western District of Washington, Tacoma Division, where he ultimately pled guilty to several charges, notably Interfering With or Obstructing the Due Administration of the Internal Revenue Laws, a violation of Title 26, United States Code, Section 7212. The case was United States v. James Dalton Bell, CR97-5270FDB. As part of the plea, Bell admitted not only to synthesizing the chemicals that could be mixed to produce Sarin, but also to setting off a noxious bomb at a building in Vancouver, Washington, that housed IRS offices.
The defendant in this case is charged with endeavoring to obstruct justice in the Bell matter. Accordingly, the Government refers the court to the official clerk's file in that case for the purposes of augmenting the factual record on which we rely in support of our response to this motion.
2 Usenet is an Internet service that is similar to an electronic bulletin board. It consists of various "newsgroups," which are organized and named by topic, and are readily available over the Internet. It allows users to both post and read messages on the particular topic.
On May 21, 1997, the defendant posted an e-mail to the Cypherpunks list, stating: "I cannot in good conscious (sic) allow Jim Bell's persecution ... to pass by without taking personal action to support him."
The May 21 message was sent through an anonymous remailer, a device which allows a user to send an e-mail without revealing the user's identity or the source of the message. Although the May 21 message did not identify the defendant by name or Internet account as the sender, the message contained a digital signature identifying the defendant as the author of the message. The defendant created this digital signature with an encryption software program called PGP (an acronym of "Pretty Good Privacy"). PGP allows the user to "sign" or authenticate a message in order to prove that he, and only he, is the one who authored it and that nobody has tampered with the message. PGP also allows the user to encrypt (i.e., put into code) an e-mail message in order to hide it from everyone other than the designated recipient. PGP accomplishes both of these functions, authentication and encryption, through a system of private and public keys.
Because PGP plays an important role in this case, it bears further explanation here. Every person who uses PGP has one or more keys, and each PGP key consists of two complementary parts: a public key, which the user distributes widely for others to use, and a private key, which the user keeps secret to himself and protects with a password or passphrase. In order to authenticate a message, the sender uses his private key to place a digital signature at the end of the message. The recipient then uses the public key of the sender to verify that the sender did in fact sign it. In order to send an encrypted message, the sender can encode the message by using the public key of the recipient. The recipient then uses his private key to decode the message. PGP encryption actually provides much more than "pretty good" privacy; it employs very strong encryption technology. The May 21, 1997 e-mail message authored by the defendant is authenticated by a PGP secret key (named "Toto < email@example.com"), copies of which were later found on the defendant's laptop computer and on diskettes in his possession at the time of his arrest.
C. The "Dead Lucky" Assassination Politics Webpage and the Specific Threat Against Judge Arnold
Only three days later, on May 24, 1997, the defendant installed an Assassination Politics "bot" of his own on the Carljohn website. He called it "Dead Lucky." A "bot" is essentially a computer program, and this bot implemented Jim Bell's Assassination Politics. Specifically, the "Dead Lucky" bot enabled a person to enter the name and location of a "Future Deceased," along with a predicted date and time of death. The bottom of the page stated, "In the event of a tie, the winner shall be decided on the basis of the ballistics and/or coroner's report." The bot was configured to notify the defendant by e-mail whenever anyone submitted names of victims and/or predicted dates and times of deaths. An electronic copy of the "Dead Lucky" bot was later found on the defendant's home computer. On June 23, 1997, the defendant posted an e-mail message to the Cypherpunks list that contained the specific threat soliciting the death of United States Magistrate Judge J. Kelley Arnold -- the threat charged in Counts One and Two of the Indictment. The message, entitled "AP Bot Results," stated in relevant part:
"Dead Lucky" is an Assassination Politics Bot operated in response to the illegal and unconstitutional imprisonment of an American citizen in retaliation for exercising his right of free speech. It is the view of the operator's [sic] of this AP Bot that since it was the illegal and unconstitutional actions of Federal employees which was [sic] responsible for the implementation of this AP Bot and several others, that they should accordingly be subjected to imprisonment without bail for endangering the lives of others, incLuding several Cypherpunks.
Leading eCa$h candidates for dying at an opportune time to make some perennial loser "Dead Lucky" are:
J. Kelley Arnold, United States Magistrate Judge,
Union Station Courthouse, 1717 Pacific Avenue, Tacoma, Washington
Jeffrey Gordon, Inspector with the Internal Revenue Service,
Internal Security Division
Inspector Cindy Nelson
This e-mail message -- which targeted not only Judge Arnold but also the IRS officials identified in the Jim Bell search warrant papers -- was sent via an anonymous remailer called the 'lucifer Anonymous Remailer.' Although the message therefore did not identify the defendant by name or by his Internet account, other circumstantial evidence proves his identity, including his own claim of authorship made in a December 9, 1997 e-mail containing still another threat, this one to the Ninth Circuit judges. His authorship of the June 23 threat is also established by his announcement of the bot to the Cypherpunks, and his admissions about it in other correspondence.
Thus, the defendant had now made a specific threat against specific, named individuals, appearing to solicit the deaths of those individuals for specific cash sums. The context of this threat must not be forgotten: it was an obvious attempt to intimidate or retaliate against the judge who authorized, and the IRS agents who executed, the search warrant for the residence of the defendant's fellow Cypherpunk, James Bell, the man who had first proposed the 'Assassination Politics' scheme. And Mr. Bell, let it not be forgotten, had not only carried out at least one attack against an IRS office, but had possessed the makings of a lethal nerve agent in his garage. [The defendant was aware that Mr. Bell had done these things. On December 14, 1997, he posted an e-mail to the Cypherpunks list in which he discussed and defended Bell's attack on the IRS building. [Inserted by hand: "a stink bomb."] And, a copy of a U.S. News & World Report article discussing Mr. Bell's experiments with Sarin gas was found on the defendant's computer after it was seized by Canadian Customs officers.] In evaluating the nature of the threats made by the defendant in this case, one must always keep in mind the nature and deeds of the man whose cause the defendant was now championing -- a man so angry at the Government that he was experimenting with the precursor chemicals of a deadly nerve agent.
During the month of September 1997, the defendant issued various e-mail messages through the Sympatico account in which he used phony sender's e-mail names and addresses, so that the messages appeared to come from "Dead Lucky <firstname.lastname@example.org>," "HugeCajones Remailer <email@example.com> ," and "A.B. Terroroist firstname.lastname@example.org"[sic]. The "Dead Lucky" e-mail included an excerpt from the Dead Lucky web page and listed the Internet address of the bot. Other e-mail messages -- which were sent to Microsoft Corporation's Chairman Bill Gates and various politicians, including United States Senators Diane Feinstein and Edward Kennedy and Washington State legislator Karen Schmidt -- included titles like "! ! ! DEATH THREAT ! ! !" and contained threatening language. Eventually, in November 1997, Sympatico asked the defendant to stop using the forged e-mail return addresses of "dev.null" because of problems it was causing for Sympatico's e-mail servers (computers). Nevertheless, the defendant continued to send e-mail with the "dev.null" forged headers.3
3 An e-mail header is the information that appears at the top of an e-mail message and describes the source and destination of the message and the path through the Internet it took between those points. The return address of an e-mail can be forged by the sender, as it was in this case.
D. The Bernstein Case and the Specific Threat Against Judge Fletcher
On December 8, 1997, an issue of strong interest to the Cypherpunks came to the fore, when the Ninth Circuit Court of Appeals heard oral argument in an appeal known as the Bernstein case.4 The case involved a challenge to the Government's regulations prohibiting the export of encryption technology. The appeal was argued before Judges Betty Fletcher, Thomas Nelson, and Myron Bright. The day after the argument, the defendant posted another threatening e-mail to the Cypherpunks mailing list, via his Sympatico account, using the name "TruthMailer <email@example.com>." Defendant also encrypted and signed the message using PGP, but he did not encrypt the subject line of the message, which read: "Encrypted InterNet DEATH THREAT! ! ! / ATTN: Ninth District Court Judges / PASSWORD: sog.["] Although the message was encrypted, therefore, defendant included the password to decrypt it -- "sog" -- right in the subject line.
4 Bernstein v. Department of Commerce, et al., Ninth Circuit No. 97-16686.
The decrypted message contained a long, profane discussion of the Bernstein case, including direct quotations from the oral argument. In its penultimate paragraphs, the e-mail stated, in relevant part:
I will share the same 'DEATH THREAT!!!' with Judges Fletcher, Nelson and Bright that I have shared with the President and a host of Congressional and Senatorial representatives:
"You can fuck some of the people all of the time, and all of the people some of the time, but you are going to end up in a body bag or a pinebox before you manage to fuck all of the people all of the time.
Am *I* going to whack you out? Maybe...
The message purported to be written by John Gilmore (who denies authoring it), but also included "hints" as to the real author's identity. Among the hints were references to the Assassination Politics Bot and to the defendant's Canadian citizenship:
I can also be tied into Jim Bell's Worldwide Conspiracy to assassinate government authorities, through my implementation of an Assassination Bot.
(I am willing to 'rat out' Jim for two bottles of Scotch. If he is willing to rat me out for less, then I guess it's just my hard luck, eh? <--that's another hint!)
The import of the threat, in its full context, was clear: The Ninth Circuit panel should decide the Bernstein appeal in favor of the defendant's position on the issue raised in that case or face the possibility of ending up "in a body bag or a pine box." The defendant also directed some of his comments specifically at law enforcement, daring them to come get him for making the threat. The message ended with a PGP digital signature generated by one of the defendant's PGP secret keys, called "Son of Gomez." That secret key was later found on the defendant's laptop computer by Canadian law enforcement and on a diskette that he had at the time of his arrest. "Son of Gomez" is also an alias that the defendant has used.
Three days after the defendant's threat to Judge Fletcher and the other Ninth Circuit Judges, Jim Bell was sentenced by U.S. District Judge Franklin Burgess. In the ensuing days the defendant issued several messages regarding Bell and his own AP-Bot. Among them was a December 13, 1997 e-mail message in which the defendant directed someone named Eric Cordian to his AP Bot in response to the following comment from Cordian: "Where do I contribute my dollar to the 'Bet a Buck Judge Burgess Lives to See 1998' fund?" Two additional e-mails from the defendant -- using the alias "Human Gus-Peter <firstname.lastname@example.org>" -- to the Cypherpunks list ranted about the Bell case and discussed the resulting implementation of AP Bots.
E. The Threat to Assassinate Bill Gates
In 1998, the defendant turned his attention to a new target, Microsoft Chairman William Gates. He sent a number of e-mail messages to Gates that contained threatening language, including a statement about training a gun sight on Gates. In fact, in a March 22, 1998 e-mail to the Cypherpunks, the defendant acknowledged, "I send weekly death threats to Bill Gates...." The threatening message that is charged in Count Five of the Indictment was sent by the defendant on March 20, 1998, directly to Bill Gates, with a copy to Blanc Weber, a Microsoft employee and fellow Cypherpunk. The subject line of the message stated: "I'm still planning your assassination, my support of you is only to shorten the line ahead of me." (The defendant's reference to "support" of Gates is explained by an attached e-mail in which the defendant praised Microsoft's creation of software for the masses.) Sympatico and Sasktel telephone records confirm that the defendant sent this e-mail message from his residence in Bienfait, Saskatchewan. The March 20 message also stated, "Blanc, Jeff, are you in position? Can you get off a clean shot? (Not that I'm a troublemaker...)." Blanc Weber subsequently sent a message to the defendant asking him to leave her out of such messages.
To Microsoft's security officers, the threat was more alarming than many, mainly because it suggested the possibility of several people acting together, not just a lone threatener. They had to be concerned about the possibility there were indeed individuals ("Blanc" and "Jeff") who, by virtue of working in proximity to Mr. Gates, might readily be able to "get off a clean shot." The security personnel did not know who was making the threat, and they were not immediately familiar with Ms. Weber. But the prospect that someone hostile to Mr. Gates might be right there, "in position" on the Microsoft campus, was understandably disconcerting.
F. The RCMP "Hate Page" and the Searches of the Defendant's Residence and Computers
Soon thereafter, on March 25, 1998, the defendant focused his attention on the Royal Canadian Mounted Police (RCMP), installing "The Official Royal Canadian Mounted Police HATE Page" on the Carljohn website. Sympatico records confirm that the defendant uploaded the hate page from his residence on that date. On April 2, 1997 [sic], Sympatico shut down the defendant's website. On April 7, the RCMP conducted a search of the defendant's residence in Bienfait and his home computer located there. The RCMP found numerous documents and computer files that tie the defendant to the AP Bot and e-mail messages described above. Among the computer files were the following: a copy of Jim Bell's "Assassination Politics;" a file with text copied from the Jim Bell search warrant affidavit; the "Dead Lucky" Bot itself; the two e-mail messages mentioned above that the defendant sent to the Cypherpunks under the name "Human Gus-Peter;" two e-mail messages from Sympatico asking the defendant to stop forging his e-mail return address as "@dev.null;" an e-mail message that the defendant sent to Bill Gates via an anonymous remailer called "WinSock;" and an e-mail message that the defendant sent to an anonymous remailer called "replay.com" discussing Jim Bell, encryption, and "digital revolutionaries."
Physical items found in the RCMP's search include various handwritten notes; printouts regarding the use of the "lucifer," "WinSock," and other anonymous remailers; a printout of an e-mail from a remailer that discusses killing and threatening the lives of politicians; a "Telephone Bomb Threat Checklist;" and printouts of the results of an Internet search for the e-mail address of Washington legislator Karen Schmidt and the subsequent e-mail that the defendant sent to her in which he used the return address of "A.B. Terroroist <email@example.com>."
On the next day, April 8, 1998, a Canadian Customs officer seized the defendant's laptop computer as the defendant was entering Canada from Montana. A subsequent search of that computer uncovered an outgoing copy of the March 20, 1998 Bill Gates threat. Also on the laptop computer was an April 5, 1998 e-mail to the Cypherpunks about the Government's encryption export policy -- the issue being litigated in the Bernstein case. The laptop also held PGP keyrings containing the "Son of Gomez" secret key used by the defendant to digitally sign the December 9, 1997 Ninth Circuit Judges threat. The defendant also had PGP secret keys for other aliases he had used, including C.J. Parker, Toto, TruthMailer, and TruthMonger. Finally, the laptop contained several e-mails to Bill Gates, Blanc Weber, the "replay.com" anonymous remailer, and the Cypherpunks. In these e-mail messages, the defendant used the names "Toto" and "TruthMonger."
G. The Estevan Bomb, Defendant's Flight to Arizona, and the Secret Service Interview
In early June of 1998 -- two months after Canadian Customs seized the defendant's laptop computer at the border -- the defendant put a small bomb or incendiary device in the basement of the courthouse in Estevan, Saskatchewan, and then departed Canada for the United States. He then sent a series of e-mail messages acknowledging the bomb to the Cypherpunks list and to Declan McCullagh, a fellow Cypherpunk and journalist who was then employed by Time Inc. In the United States, the defendant continued to post messages to the Cypherpunks list, while he lived with a friend named Linda Reed in Tucson, Arizona.
Following the bomb incident, the United States Secret Service decided to contact the defendant, who had included references to President Clinton in some of his threatening e-mail (including the December 9, 1997 threat to the Ninth Circuit judges). Two Secret Service Special Agents interviewed the defendant on July 27, 1998, at the home of Linda Reed. During the interview, after being informed of and waiving his Miranda rights, the defendant was shown the threatening portion of the December 9, 1997 e-mail regarding Judge Fletcher and the two other members of the Bernstein panel. The defendant responded, "It looks like my stuff." He then claimed that he was talking in "virtual" terms rather than "meatspace" (i.e., physical world) terms, and denied any intention of harming the President or other Government officials. He also admitted to using the aliases "Toto" and "TruthMonger," and to using Linda Reed's Internet account (an account through which he had sent a series of e-mail messages in July of 1998 concerning Jim Bell and containing language threatening toward U.S. and Canadian government officials). During the interview, the defendant gave the Secret Service agents a false Social Security number.
H. Still More Violence: The Defendant's Arrest; Diskette Bombs and Jail Correspondence
On August 18, 1998, after the Secret Service interview and after the defendant had been identified as the author of the December 9, 1997 threat and the prior threat to Magistrate Judge Arnold, he was arrested by IRS Inspectors Jeffrey Gordon and Bruce Mason while he was sitting in his Mazda pickup truck in Tucson, Arizona. Incident to the arrest, the Inspectors searched him and his truck. In his wallet, they found a photograph of him with the name "C.J. Parker" and several identification documents in his real name, including Arizona and Saskatchewan driver's licenses, a Certificate of Canadian Citizenship, and the Mazda pickup truck registration. In the truck, the Inspectors found two floppy diskettes, one of which was wrapped in a document with the title "Diskette Bombs" that described various chemical compounds for creating flares. The diskettes themselves contained copies of the defendant's PGP keyrings (again including the "Son of Gomez" secret key) and various writings. Among the writings was a document called "The Revolution is Now" that contained a number of graphics files linked to it depicting grotesque images of severed heads, internal organs, amputees, apparent crime scenes, and bombs. During the booking process at the jail in Tucson, Arizona, the defendant assaulted Inspector Mason, verbally abused him, and had to be physically restrained after considerable effort.
While the defendant was in custody in Florence, Arizona, he mailed two handwritten letters to Declan McCullagh, the Cypherpunks list member who was also a reporter for a Time, Inc. Internet publication. In the first letter, postmarked September 8, 1998, the defendant admitted to assaulting the Treasury agent, acknowledged his connection to the "Dead Lucky AP-Bot" by claiming it had received three votes, and again acknowledged his aliases of "Toto" and "TruthMonger." In the second letter, postmarked September 11, 1998, the defendant penned an angry rant to U.S. Magistrate Judge Nancy Fiora, who had ordered his competency evaluation. Both letters have the defendant's fingerprints on them.
III. OFFENSES CHARGED AND APPLICABLE STATUTES
1. The Superseding Indictment
In the Superseding Indictment, the Grand Jury has charged that:
(Threat to Judicial Officer)
On or about June 23, 1997, within the Western District of Washington and elsewhere, CARL EDWARD JOHNSON did threaten to kill J. Kelley Arnold, a United States Magistrate Judge, with intent to impede, intimidate, interfere with, and retaliate against Judge Arnold while he was engaged in and on account of the performance of his official duties.
All in violation of Title 18, United States Code, Section 115.
(Threatening Communications in Interstate or Foreign Commerce)
On or about June 23, 1997, CARL EDWARD JOHNSON knowingly and intentionally did transmit in foreign commerce, from Canada to the United States, an electronic mail communication containing a threat to injure the person of United States Magistrate Judge J. Kelley Arnold, which threat was received electronically at Seattle and elsewhere within the Western District of Washington.
All in violation of Title 18, United States Code, Section 875(c).
(Threat to Judicial Officer)
On or about December 9, 1997, within the Western District of Washington and elsewhere, CARL EDWARD JOHNSON did threaten to kill Betty Binns Fletcher, a United States Ninth Circuit Judge, with intent to impede, intimidate, interfere with, and retaliate against Judge Fletcher while she was engaged in and on account of the performance of her official duties.
All in violation of Title 18. United States Code. Section 115.
(Threatening Communications in Interstate or Foreign Commerce)
On or about December 9, 1997, CARL EDWARD JOHNSON knowingly and intentionally did transmit in foreign commerce, from Canada to the United States, an electronic mail communication containing a threat to injure the person of United States Ninth Circuit Judge Betty Binns Fletcher, which threat was received electronically at Seattle and elsewhere within the Western District of Washington.
All in violation of Title 18, United States Code, Section 875(c).
(Threatening Communications in Interstate or Foreign Commerce)
On or about March 20, 1998, CARL EDWARD JOHNSON knowingly and intentionally did transmit in foreign commerce, from Canada to the United States, an electronic mail communication containing a threat to injure the person of William Gates m, which threat was received electronically at Redmond and elsewhere within the Western District of Washington.
All in violation of Title 18 United States Code, Section 875(c).
2. The Charging Statutes
(i) Counts 1 and 3: title 18, United States Code, Section 1503 (Obstruction of Justice by Threat of Death Against Judicial Officer)
The defendant is charged in Counts 1 and 3 with Obstruction of Justice by making death threats against a judicial officer, namely, J. Kelley Arnold in Count 1 and Betty Binns Fletcher in Count 3. The statute states, in relevant part:
§ 1503. Influencing or injuring officer . . .
(a) Whoever corruptly, or by threats of force, or by any threatening letter or communication, endeavors to influence, intimidate, or impede any . . . officer in or of any court of the United States . . . in the discharge of his duty . . . or corruptly or by threats of force, or by any threatening letter or communication . . .endeavors to influence, obstruct, or impede, the due administration of justice, shall be punished . . .
Venue in an obstruction case charged under § 1503 lies in "the district in which the official proceeding (whether or not pending or about to be instituted) was intended to be affected or in the district in which the conduct constituting the alleged offenses occurred.["] 18 U.S.C. § 1512(h).
Federal judges and magistrates are "officers in or of" the federal courts for purposes of the Obstruction statute. United States v. Margoles, 294 F.2d 371 (7th Cir, 1961); United States v. McLeod, 119 F. 416 (N.D. Ala. 1902).
The word "corruptly" as used in the statute means that the act must be done with the purpose of obstructing justice. United States v. Rasheed, 663 F.2d 843 (9th Cir. 1981).
"Endeavor" means to make an effort to do or accomplish the purpose that the statute was enacted to prevent. United States v. Laurins, 857 F.2d 529, 537 (9th Cir. 1988); Rasheed, supra.
The Government must show that the defendant had knowledge that a federal proceeding was pending. United States v. Washington Water Power Co., 793 F.2d 1079, 1084 (9th Cir. 1986).
Actual obstruction, or success of the endeavor, is not an element of proof, Rasheed, supra; Roberts v. United States, 239 F.2d 467 (9th Cir. 1956), but a specific intent to impede the administration of justice is an element. United States v. Ryan, 455 F.2d 728 (9th Cir. 1971).
The Government must prove that there was a judicial proceeding underway that the defendant's actions were intended to obstruct. United States v. Mullins, 22 F.3d 1365 (6th Cir. 1994). In that regard, however, a judge is considered to be still engaged in the discharge of his duties even after he has recused or withdrawn from a case, where he is nonetheless still involved in adjudicating other cases, and the danger of the defendant's actions is in their potential to intimidate the judge and dissuade him from the zealous execution of his ongoing official duties. United States v. Fulbright, 105 F.3d 443 (9th Cir. 1997), cert. denied, 117 S.Ct. 1836.
(ii) Count 2: Retaliatory Threat Against Judicial Officer; 18 United States Code, Section 115(a)(1)(B) and (B)(4)
The defendant is charged in Count 2 with making a retaliatory threat against Judge Arnold on account of the performance of his official duties, in violation 18 U.S.C. 115(a)(1)(B) and (B)(4). The relevant part of the statutory scheme punishes whomever:
threatens to assault . . . or murder . . . a United States judge . . . with intent to retaliate against such . . . judge . . . on account of the performance of official duties . . .
Section 115(c)(3) of Title 18 defines "United States Judge" as "any judicial officer of the United States, and includes . . . a United States magistrate . . ."
Thus, the Government must prove that 1) the defendant, 2) threatened to assault or kill, 3) a judicial officer of the United States, 4) with intent to retaliate against that officer, 5) while the officer was engaged in, or on account of the performance of, his official duties. United States v. Orozco-Santillan, 903 F.2d 1262 (9th Cir. 1990).
In determining whether the threats are 'true threats,' an objective standard is used -- namely, whether a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicated the statement as a serious expression of intent to harm or assault. Orozco-Santillan, supra. In making that determination, the alleged threats should be considered in light of their entire factual context, including surrounding events and reactions of listeners. Id. And, evidence of the victim's reaction or response is relevant to show that the threat could reasonably be perceived [a]s containing a 'true threat.' United States v. Davis, 876 F.2d 71 (9th Cir. 1989).
The only intent requirement is that the defendant intentionally or knowingly communicated a threat, not that he intended or had the ability to carry out the threat. Orozco-Santillan, supra.
(iii) Counts 4 and 5: Threatening Communications in Interstate or Foreign Commerce, Title 18. United States Code. Section 875(c)
The defendant is charged in the last two counts of the Superseding Indictment with making and transmitting two threatening communications in foreign commerce, in violation of 18 U.S.C. 875(c), one against Betty Fletcher, and one against Bill Gates. The charging statute punishes whomever:
. . transmits in interstate or foreign commerce any communication containing . . . any threat to injure the person of another . . . 18 U.S.C. 875(c).
Thus, the elements of the charge are: (1) an intentional interstate or foreign transmission of a communication, (2) threatening to injure a person, (3) with the specific intent to threaten. United States v. Twine, 853 F.2d 676 (9th Cir. 1987). However, the Government is not required to prove that the defendant had the intent or ability to carry out the threat. Id. Nor is the Government required to prove that the defendant had the specific intent to injure, or that the threat ever reached the person who was threatened. United States v. Holder, 302 F.Supp. 296 (D.Montana 1969), aff'd & adopted, 427 F.2d 715 (9th Cir. 1970). The threat need not have been of such a nature as to have induced fear in the mind of the person threatened. Id. It is enough to show that the threat was of such a nature as reasonably to have induced fear. Ibid ("The test is whether the communication 'in its context' would 'have a reasonable tendency to create apprehension that its originator will act according to its tenor.'") (citations omitted).
Even a vague threat is sufficient to sustain a conviction under this statute. Roy v. United States, 416 F.2d 874 (9th Cir. 1969).
The offenses charged under the Threatening Communications statute contain the element that the communications must have been transmitted in interstate or foreign commerce. [In that regard, the evidence will be that the defendant transmitted the e-mails charged under that statute through an Internet service provider in Canada, and that they were relayed from there through telecommunications lines to the United States and elsewhere, where they could be accessed in Washington or any other state in the union. The Internet crosses interstate and foreign boundaries.]
IV. EVIDENTIARY AND LEGAL ISSUES
1. Admissions by Defendant.
Defendant's statements to law enforcement and in e-mails and other correspondence are admissible, non-hearsay admissions of a party-opponent when offered into evidence by the United States. Fed. R. Evid. 801(d)(2)(A).
2. Business Records.
Business records of the Canadian Internet service provider Sympatico and the Canadian telecommunications company SaskTel will be offered by the United States pursuant to Rule 803(6), which provides, in pertinent part, the following as an exception to the hearsay rule:
A . . . record . . . made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness . . .
The witness who is introducing the records is not required to have first-hand knowledge of the preparation of the records. United States v. Bland, 961 F.2d 123, 127 (9th Cir.), cert denied, 506 U.S. 858 (1992). Furthermore, the Government does not have to prove the records are complete and accurate. United States v. Hudson, 479 F.2d 251, 254 (9th Cir. 1972) (fullness and completeness goes to weight, not admissibility of evidence), cert. denied, 414 U.S. 1012 (1973). Finally, under Fed. R. Evid. 1001(4) and 1003, photocopies may be used to the same extent as originals, unless a genuine question as to the authenticity of the original is raised. United States v. Morgan, 555 F.2d 238, 243 (9th Cir. 1977). [Variable format of underlines and italics in original.]
3. Certified Public Records.
The United States will offer in evidence a certified copies of relevant documents from the Bell case, such as the search warrant and application that prompted the death threat against Judge Arnold and the IRS officers. We are also offering a certified copy of the docket in the Bernstein case, the Ninth Circuit matter relating to the export of encryption technology. Judge Fletcher's handling of that case is alleged by the Government to provide part of the context for the defendant's threat against her. We plan on offering two Social Security Administration certifications showing the defendant's true Social Security number and linking him to the alias "C.J. Parker," and showing that the Social Security number he gave to the Secret Service was an invalid number. These certified records are admissible as certified public records under Fed. R. Evid. 803(8). As records of public agencies setting forth activities of those agencies, they are self-authenticating under Fed. R. Evid. 902(4).
4. Evidence of "Other Acts" Committed by Defendant: Admissible as Direct Proof of the Crime Charged or as Evidence Permitted Under Rule 404(b)
Based on his pretrial motion to dismiss the Superseding Indictment on First Amendment grounds, the Government anticipates that the defendant will argue that the threats are protected speech and do not rise to the level of 'true threats.' However, as we argued in our brief in response to his dismissal motion, the First Amendment does not protect a speaker who intentionally threatens another with death or serious bodily injury in order to alter a lawful course of action by means of intimidation or fear. "True threats" are those which are intended to cause fear and intimidation regardless of whether there is any actual intent to carry out the threat. Thus, criminal culpability may properly be based on speech that amounts to a true threat.
When a statement contains explicitly threatening language, against specific, named targets, the analysis will be centered primarily on the question of whether the threat is serious or merely a form of exaggerated political rhetoric. Watts v. United States, 394 U.S. 705, 89 S. Ct. 1399, 22 L.Ed.2d 664 (1969). In making this inquiry, one must consider the surrounding factual circumstances to determine whether the challenged statement is truly a threat in context and, thus, undeserving of First Amendment protection. In the Ninth Circuit, an "objective" test is applied when determining whether a threat rises to the level of unprotected speech. Thus, a statement should be considered a true threat where, considering all relevant factual circumstances, a reasonable person would foresee that a recipient would interpret the statement as communicating a serious expression of an intent to inflict or cause serious harm to the target.
In the Ninth Circuit the 'true threat' question is for the jury to decide, especially where, here, the facts surrounding the threat -- such as motive and intent -- are in dispute. The law of the circuit is that the question of whether a threatening communication is protected by the First Amendment or is instead an unprotected 'true threat' is one for the jury. See: Melugin v. Hames, 38 F.3d 1478 (9th Cir. 1994) (issue of whether a criminal defendant has made a 'true threat' as opposed to a statement protected by the First Amendment is question of fact for jury, not question of law for court); United States v. Merrill, 746 F.2d 458, 462 (9th Cir. 1984) (whether expression is true threat is for trier of fact in all circumstances), cert. denied, 469 U.S. 1165 (1985); United States v. Gilbert, 813 F.2d 1523, 1530 (9th cir. 1987) ([I]t is a jury question whether actions and communications are clearly outside the ambit of first amendment protection"); United States v. Pennell, 144 F. SUPP. 317 (N.D.Cal. 1956) (whether intimidating letter constituted true threat was a question of fact, not to be determined on motion to dismiss indictment). See also: United States v. Carrier, 672 F.2d 300, 304 (2d. Cir.) (defendant's intention in uttering words and the circumstances surrounding their use are issues of fact for the jury), cert. denied, 457 U.S. 1139 (1982); United States v. Khorrami, 895 F.2d 1186, 1192 (7th Cir. 1990) (accord).
The Ninth Circuit has adopted an 'objective' test to determine whether an alleged threat is a 'true threat' for purposes of First Amendment analysis. In the Ninth Circuit, to distinguish a 'true threat' from otherwise protected speech under the First Amendment, one must ask:
"Whether a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of intent to harm or assault." United States v. Orozco-Santillan, 903 F.2d 1262 (9th Cir. 1990) Furthermore, " [a]lleged threats should be considered in light of their entire factual context, including the surrounding events and the reaction of the listeners." Id.
Lovell v. Poway Unified School District, 90 F.3d 367, 372 (9th Cir. 1996), cer. dismissed, 518 U.S. 1048 (1996) (citations omitted) (emphasis added). Thus, the test of a true threat, as articulated by the Ninth Circuit, requires proof that, in light of the entire factual context:
(1) a reasonable person
(2) who makes a statement
(3) would foresee
(4) that the statement would be interpreted
(5) by those to whom it was communicated
(6) as a serious expression
(7) of an intent to harm or assault.5
5 This summary of the Ninth Circuit's 'objective' test of a 'true threat' was recently stated by the American Civil Liberties Union Foundation of Oregon, in its Brief Amicus Curiae in Planned Parenthood of the Columbia/Willamette, et al: v. American Coalition of Life Activists, et al., C95-1671-JO (U.S.D.C. Oregon). There, the ACLU took the view that under the Ninth Circuit's definition of a 'true threat' -- and even under a narrower, more subjective definition favored by the ACLU -- "WANTED!' posters placed on the Internet by anti-abortion activists, targeting abortion providers, were arguably not protected by the First Amendment, and rose to the level of true threats. In that case, the ACLU argued -- and the court ultimately agreed -- that the threats could rise to the level of 'true threats' even though the 'WANTED!' posters did not explicitly threaten harm against the abortion providers. the threats, though veiled, were nonetheless 'true.'
There is no requirement that the Government show that the defendant intended to carry out the threat. United States v. Twine, 853 F.2d 676 (9th Cir 1988). Moreover, the objective test employed by the Ninth Circuit does not expressly call for proof that a defendant intended to threaten. "Instead, some aspect of generalized intent appears to be included in the requirement that a hypothetical, reasonable person who makes a statement would have foreseen that the statement would be interpreted as a serious expression of an intent to harm or assault." See, Brief Amicus Curiae of ACLU Foundation of Oregon, in Planned Parenthood of the Columbia Willamette, et al. v. American Coalition of Life Activists, et al., C95-1671-JO (U.S.D.C. Oregon). Thus, the Ninth Circuit's test is an "objective" one in the sense that it focuses mainly on a hypothetical reasonable speaker, but also, to some extent, on a reasonable listener (by asking what a reasonable speaker would have foreseen as the interpretation of the statement by the listener).6 Id.
6 The Fifth Circuit seems to follow a similar, 'objective' test. There, in order to be a true threat a statement "must have a reasonable tendency to create apprehension that its originator will act according to its tenor." United States v. Myers, 105 F.3d 76, 79, cert. denied, 117 S. CT.. 1709 (l997). Similarly, "A 'threat' is a 'declaration of an intention or determination to inflict . . . injury . . ." United States v. Howell, 719 F.2d 1258, 1260, n.l.
Thus, the question before the jury will be whether, under the "objective test" that is applicable in this Circuit (and which will be given to the jury in an appropriate instruction), after considering all relevant surrounding circumstances, a reasonable person would foresee that the threatening communications would be interpreted by a recipient as communicating a serious expression of an intent to inflict or cause serious harm to the named targets.
By raising the 'true threat' defense, the defendant is opening the door for the Government to prove the context of the threats. This means that a good deal of evidentiary material which might otherwise be subject to objection will be admissible under F.R.E. 404(b) to prove the context of the threats -- specifically, motive, intent, plan, knowledge, and identity. The Ninth Circuit has made it clear that context is critical to determining whether a statement rises to the level of a 'true threat.' Lovell, supra, at 372. The Government has already given the defense advance notice of its intent to use such material, as required by Rule 404(b). Defense counsel can assume that we intend to offer any or all of the evidence of other acts described in the statement of facts in this brief. These include, but are not limited to, the defendant's championing of the cause of James Dalton Bell (a violent felon who had set off a chemical attach on an IRS building and had been mixing a chemical variant of Sarin gas prior to his own arrest), his acknowledgement to a reporter (Declan McCullagh) of having placed an explosive or incendiary device in a courthouse in Estevan, Saskatchewan, his possession of materials on bomb-making, and his assault on an IRS officer in Tucson.
When Carl Johnson made himself the champion of the cause of James Dalton Bell, he aligned himself with a violent man who had committed a physical attack on an IRS building and had been experimenting with the chemical ingredients of deadly nerve agents before he was ultimately arrested. Even though the Government is not required to prove that Mr. Johnson had the inclination or ability to carry out his threats, see Twine, supra, any doubts about the plausibility or seriousness of his threats are resolved by the fact that Mr. Johnson acknowledged responsibility for a explosive-device that had been placed in a Canadian courthouse. He acknowledged the bomb incident in correspondence with Declan McCullagh, the reporter for Time Magazine's Internet publication. Materials on bomb-making were found in his possession at the time of his arrest in Arizona. This evidence, coupled with the photographs of dismembered people and graphic depictions of the effects of physical violence which he downloaded from the Internet, is all part of the context in which his threats must be assessed. Considered in this context, the threats must be viewed in the most serious possible light.
Rule 404(b) provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
Fed. R. Evid. 404(b).
Rule 404(b) is a rule of inclusion. United States v. Young, 573 F.2d 1137, 1139-40 (9th Cir. 1978). Thus, evidence of other crimes or acts evidence is admissible if it is relevant to an issue other than the defendant's character or criminal propensity; the rule "generally allows admission of other crimes or acts evidence 'except where it tends to prove criminal disposition.' " United States v. DeSalvo, 41 F.3d 505 (9th Cir. 1994) (quoting United States v. Rocha, 553 F.2d 615, 616 (9th Cir. 1977)). See also, United States v. Bowman, 720 F.2d 1103, 1105 (9th Cir. 1983).
Evidence of other acts is admissible pursuant to Rule 404(b) if the evidence:
(1) proves a material element of the crime that is the subject of the trial;
(2) shows similarity between the past and charged conduct7;
(3) is based on sufficient evidence8; and
(4) is not too remote in time9
United States v. Johnson, 132 F.3d 1279, 1282 (9th Cir. 1997). See United States v. Melvin, 91 F.3d 1218, 1222 (9th Cir. 1996). Once relevance is established, the district court should admit the evidence unless its prejudicial impact substantially outweighs its probative value."10 United States v. Johnson, 132 F.3d at 1282. See also Fed. R. Evid. 403; United States v. Tsinnijinnie, 91 F.3d 1285, 1288-89 (9th Cir. 1996); United States v. Bailleaux, 685 F.2d at 1110.
7 The degree of similarity required for admission of evidence pursuant to Rule 404(b) depends on the purpose for which the evidence of prior crimes is offered in a particular case. United States v. Bailleaux, 685 F.2d 1105, 1110 n.l (9th Cir. 1982). Prior-crimes evidence admitted to show a defendant's intent, knowledge, or motive, for example, does not require a high degree of similarity. See United States v. Sinn, 622 F.2d 415, 416 (9th Cir.), cert. denied, 449 U.S. 843 (1980).
8 This part of the test sets a "low threshold." United States v. Houser, 929 F.2d 1369 1373 (9th Cir. 1990). The evidence must be sufficient "to support a finding by the jury that the defendant committed the similar act." Huddleston v. United States, 485 U.S. 681, 686 (1988).
9 Although there is no "bright line rule concerning remoteness in time," seven or eight years is not too remote where the acts are similar and relevant. United States v. Rude, 88 P.3d 1538, 1550 (9th Cir. 1996), cert. denied, ___ U.S. ___, 117 S. Ct. 690 (1997); see also United States v. Ross, 886 F.2d 264, 267 (9th Cir. 1989)(acts occurring twelve years before not too remote), cert. denied, 494 U.S. 1083 (1990); United States v. Hadley, 918 F.2d 848, 851 (9th Cir. 1990) (acts occurring ten years before not too remote).
10 Rule 403 provides:Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
Fed. R. Evid. 403. " 'Unfair prejudice' refers to an 'undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one' or 'evidence designed to elicit a response from the jurors that is not justified by the evidence.'" United States v. Ellis, 147 F.3d 1131, 1335 (9th Cir. 1998) (quoting 2 J. Weinstein & M. Berger, Weinstein's Federal Evidence § 403.04[b] (2d ed. 1997)).
Evidence of acts that might be subject to analysis under Fed. R. Evid. 404(b) or 403 in one context, however, is admissible without such scrutiny when "the evidence concerning the [other] act and the evidence concerning the crime charged are inextricably intertwined." United States v. Soliman, 813 F.2d 277, 279 (9th Cir.1987) (quoting United States v. Aleman, 592 F.2d 881, 885 (5th Cir.1979)). See also United States v. Mundi, 892 F.2d 817, 820 (9th Cir.1989) ("[T]he evidence [the Government] presented was 'inextricably intertwined' with, and 'part of the same transaction' ac, the conduct alleged in the indictment"), cert. denied, 498 U.S. 1119 (1991). Thus, evidence concerning other acts committed by the defendant is admissible for the purpose of providing the context in which the crime occurred. United States v. Moore, 735 F.2d 289, 292 (9th Cir. 1984). A jury is not expected to make its decision in a void. Jurors are entitled to know the background and circumstances leading to the criminal charges at issue. United States v. Daly, 974 F.2d 1215, 1217 (9th Cir. 1992). Such evidence is "inextricably intertwined" to the charges under indictment and cannot be excluded through Rule 404(b) or Rule 403. See e.g., United States v. Nunez, 483 F.2d 453, 455 (9th Cir.) (evidence of prior acts committed in course of same conspiracy are admissible), cert. denied, 414 U.S. 1076 (1973). Evidence concerning other acts committed by the defendant is admissible for the purpose of providing the context in which the crime occurred. United States v. Moore, 735 F.2d 289, 292 (9th Cir. 1984).
The evidence is admissible under Rule 404(b). It goes directly to defendant's motive, opportunity, intent, preparation, plan, knowledge, identity, and absence of mistake or accident, all permissible purposes under the rule. It is virtually identical to the charged crimes. Finally, even if the images and testimony are prejudicial, any such prejudice does not substantially outweigh the highly probative nature of the evidence, and the evidence should therefore be admitted.
As indicated, we do not believe that, under any measure, the probative value of the evidence we propose to offer is substantially outweighed by the danger of unfair prejudice. See Fed. R. Crim. P. 403. Nevertheless, we will submit a proposed instruction, to be given to the jury prior to introduction of any evidence admitted pursuant to Rule 404(b), and a second time during final instructions, explaining the limited purpose for which they are to consider evidence of the defendant's other acts. Such instructions have been held to reduce or eliminate any potential prejudice. United States v. O'Brien, 601 F.2d 1067, 1070 (9th Cir. 1979). See United States v. Bradshaw, 690 F.2d 704, 709 (9th Cir. 1982), cert. denied, 463 U.S. 1210 (1983).
5. Evidence of the Defendant's Use of Aliases.
To show that the defendant was aware of the seriousness of his threats, the Government will offer evidence that he took elaborate steps -- including the use of multiple aliases -- to conceal his authorship of the threats. That he intended his e-mails to be understood as threats can be inferred from his fervent desire to avoid detection as the source of the threats. By contrast, someone engaged in purely political speech would have no reason to hide his identity in a free society. Carl Johnson was trying to hide his authorship from law enforcement, precisely because Carl Johnson knew that he was publicly making specific threats of the sort that could land him in jail. Alias evidence will be offered.
The fact that a defendant has used an alias is admissible and is not unduly prejudicial "when it forms the background of the case or is relevant to the facts of the charge." United States v. Jorge-Salon, 734 F.2d 789, 791-92 (11th Cir. 1984) ("The use of an alias . . .in evidence is permissible if it is necessary to connect the defendants with the acts charged."). See also, United States v. Saavedra, 684 F.2d 1293, 1299 (9th Cir. 1982) (reference to alias not error where defendant's use of alias was supported by relevant evidence in the record); United States v. Virges, 723 F.2d 666, 672 (9th Cir. 1984) (alias relevant to defendant's attempt to avoid detection).
6. Expert Testimony
In its case-in-chief, the United States will offer testimony of several witnesses who will provide technical explanations of the Internet and computer operations. Most of these witnesses are actually fact witnesses who have technical expertise in the subjects about which they will be testifying. RCMP Corporal Steve Foster will testify about his investigation of defendant's "RCMP Hate Page" and his searches of defendant's residence and comp[uter. (Note: Insertions of this and the next paragraph are interpretations of text-copier omissions.)] Corporal Foster has attended and completed computer crime investigative training p[rogram of] the Canadian Police College, including training in conducting computer forensics an[d] searches. He carries the title of Technological Crime Investigator. He also has exp[erience] with computer programming, including Hypertext Markup Language (HTML), the l[anguage] used for World Wide Web pages.
Shan Noyes and Dan Deck of Sympatico, the Internet Service Provider where [the] defendant had his account, will testify regarding that account and its use, and will explain the Internet, e-mail, and the World Wide Web in the course of their testimony. Both of them are Technical Analysts for Sympatico, and have worked there for five or more years.
Several Treasury employees ~ including Cindy Brown, Stuart Alexander, John Rabatin, and Jeffrey Gordon -- will testify regarding the computers of Jim Bell and defendant, the e-mail and computer files contained therein, and computer files from diskettes obtained from defendant and John Gilmore. Jeffrey Gordon additionally may testify about technical aspects of the case that he encountered during the investigation. Each of these Treasury employees has experience and/or training in the use of electronic data and computers.
In addition, there are a few Government witnesses who are experts in the more traditional sense. First, Susan Crandell, a fingerprint expert with the Treasury Inspector General for Tax Administration Forensic Science Library, will testify to her identification of defendant's latent fingerprints on the handwritten letters marked as Government Exhibits 90 and 91. She is a highly trained and experienced examiner, and has been qualified many times to testify as an expert. [A copy of her credentials is being furnished to the defendant, and will be made available to the court before trial.]
Second, one or two witnesses will testify regarding PGP and encryption. Portland Police Detective Steve Russell will testify regarding the operation of PGP encryption software and defendant's use of it, as reflected in his computer files, his PGP keys, and e-mail messages associated with him. Detective Russell has worked in computer crime and computer forensic work for nearly ten years, has taught computer forensics, and has particular training and experience in encryption and PGP. Professor Sarah Easton Mocas of Portland State University also may testify, regarding cryptology, encryption, PGP, and forged keys. Professor Mocas has a Ph.D. in Computer Science from Northeastern University, has written extensively on complexity theory and cryptology, and teaches courses in the same subjects.
Expert testimony is authorized under Fed. R. Evid. 702, which provides:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
In the present case, the technical knowledge of the above witnesses -- all of whom have qualifying technical skills, experience and/or training -- without question will assist the jury to understand the evidence and determine facts in issue.
7. Summaries and Charts
The United States may make use of summaries or charts summarizing computer data, including charts comparing defendant's telephone records and Internet login times. Such summaries are admissible pursuant to Rule 1006, which provides:
The contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented m the form of a chart, summary or calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at reasonable time and place. The court may order that they be produced in court.
Fed. R. Evid. 1006. The Ninth Circuit has ruled that if the requirements of Rule 1006 are satisfied, summaries may be used and may be admitted into evidence. See United States v. Krasn, 614 F.2d 1229, 1237-38 (9th Cir. 1980); United States v. Gardner, 611 F.2d 770, 776 (9th Cir. 1980). All of the data and information underlying any such summaries has been made available to defendant during pretrial discovery. Rule 1006 does not require that it be literally impossible for the jury to examine the underlying records before a summary may be admitted. United States v. Stephens, 779 F.2d 232, 238-39 (5th Cir. 1985); United States v. Scales, 594 F.2d 558, 562 (6th Cir.), cert. denied, 441 U.S. 946 (1979).
It is also likely that the underlying data will be offered into evidence; the fact that the underlying documents are already in evidence does not mean that they can be "conveniently examined in court." United States v. Stephens, 779 F.2d at 239; United States v. Lemire, 720 F.2d 1327, 1347 (D.C. Cir. 1983), cert. denied, 467 U.S. 1226 (1984). The Government will propose that summaries be admitted into evidence and that the jury be permitted to have them while they deliberate. The Government will submit an appropriate instruction concerning these summaries as part of its proposed Jury Instructions.
The Government respectfully submits this Trial Memorandum to aid the court in trying this matter before the jury.
DATED this 2 day of April, 1999.
KATRINA C. PFLAUMER
United States Attorney
Assistant United States Attorney
Assistant United States Attorney