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19 June 1999
Source: Six pages of hardcopy from ABC Legal Messengers, Inc., Tacoma, WA

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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 8th day of June, 1999
Janet K Vos

Judge Bryan

Received From

JUN 09 1999

______ LODGED _______ RECEIVED

JUN 8 1999 JK

BY                                            DEPUTY







NO. CR98-5393RJB


COMES NOW THE UNITED STATES OF AMERICA, by and through Katrina C. Pflaumer, United States Attorney for the Western District of Washington, and Robb London and Floyd G. Short, Assistant United States Attorneys for said district, and respectfully submits this memorandum on the sentencing issues in this matter. The Government is in agreement with the guideline calculations of the Probation Officer, as set forth in the revised Presentence Report and Addendum. The issues before the Court, as to which findings must be made at time of sentencing, and the Government's positions on those issues, are as follows:

1. Applicable Guideline for Count 3 (Obstruction). The Government agrees with the Probation Officer that USSG 2J1.2, with a Base Offense Level of 12, is the presumptive and applicable guideline to be applied to Count 3, the Obstruction conviction under Title 18, United States Code, Section 1503. If applicable, this guideline will "drive" the guideline calculations for the multiple counts of conviction because it carries the highest offense level among the guidelines that apply to the various counts of conviction. Where, as

[Footer all pages; hereafter omitted]

(206) 553-7970

here, there are four separate counts that must be grouped and scored, one must use as a baseline the guideline that results in the highest offense level. See, USSG 3D1.3, 3D1.4. Here, under USSG 2J1.2, there is an eight-level (8) enhancement for a threat of injury made for the purpose of obstructing justice. See USSG 2J1.2(1). That 8-level enhancement is not found in any of the other guidelines that apply to the other counts of conviction. In its findings of fact in support of the verdict, the Court specifically found that the defendant's purpose in making the threat charged in Count 3 was to obstruct justice. Accordingly, the obstruction guideline and the 8-level enhancement of USSG 2J1.2(1) are appropriate.

The defendant asks the Court to apply instead the guideline found at USSG 2A6. 1, which is typically appropriate for plain threats unconnected to the purpose of obstruction, and does not carry the 8-level enhancement for obstruction found in the applicable guideline, 2J1.2. He argues that conduct charged as obstruction of justice in Count 3 is really "more analogous" to the conduct charged in the other counts as plain threats, unmotivated by an intent to obstruct justice. We disagree. The threat charged in Count 3 was made for the specific purpose of obstructing justice, and is guided squarely by USSG 2J1.2(1), and not by 2A6. 1.

2. Acceptance of Responsibility/Obstruction of Justice. The defendant should not receive a deduction for Acceptance of Responsibility, and he should receive a two-level enhancement for post-arrest obstruction. First, he was given several chances prior to trial to plead guilty and to put this matter behind him. He chose not to do so. Second, at trial he mounted an identity defense, arguing that the Government could not prove, and had not proved, that he was the author of the threatening e-mail messages at issue. That sort of defense runs counter to the entire notion of accepting responsibility for one's actions. This is not changed by the fact that the defendant also asserted a First Amendment defense (arguing that even though he was not the author of the threats, the threats themselves were protected speech under the First Amendment). It would have been far less disingenuous of him to have acknowledged authorship of the messages while preserving his First Amendment defense.

Had he done that, the Government would today be more sympathetic to the view that he had shown at least a modicum of acceptance of responsibility in a timely fashion. Instead, he put the Government to its proof in a week-long trial with many far-flung witnesses, many of them from Canada. Most of the trial involved proving his identity as the maker of the threats.

Third, it is only now, just prior to sentencing, that the defendant has furnished the Court and Magistrate Judge Arnold (one of the victims) with letters purporting to take responsibility for his actions. Even in these letters, however, he continues to insinuate that his threats were beyond his control, the products of his vaguely diagnosed medical difficulties. This is not acceptance of responsibility. Finally, after his arrest, the defendant attempted to obstruct the prosecution by sharing his private PGP keys with others who could then post them on the Internet with instructions that the keys be used to author new e-mails. The facts of the defendant's post-arrest obstruction attempt, which can be testified to at the sentencing hearing by Special Agent Jeffrey Gordon, are as follows:

Shortly after the defendant was arrested in Tucson last July, the password "sog709cejCJP" and others were publicly posted to the Internet by John Young, a person who devoted considerable time on the Internet to rallying support for the defendant among his former correspondents on the Cypherpunks list. Testimony at trial established that this was the correct password for the defendant's "secret keys," including the "Son of Gomez" key that was used to send the death threat message against Judge Fletcher. Testimony at trial also established that this password was constructed using numbers, letters, and capitals in a combination which made it a 'strong' password. Since the defendant had created this password for his personal PGP keys, only he would have been likely to have it, and therefore only he would have been in a position following his arrest to tell others where they could find it. In October of 1998, several months after the defendant's arrest, copies of the defendant's secret PGP keys themselves were posted to the Internet. Since these were his keys, various copies of which he had kept on his laptop and on computer disks, it is clear that even from jail he was able to tell someone where he had stored backup copies of his keys. The purpose of

sharing his keys this way was to enable others to use the keys to author new messages using the same keys that had been used by the author of the death threats. The intended effect was to create 'reasonable doubt' that the defendant, now jailed and without access to a computer, could be the same person who had made the original threats and who was still evidently posting messages to the Internet using "Toto's" private PGP keys. Indeed, several such messages were posted on the Internet while the defendant sat in jail awaiting trial. After the posting of copies of his password and, eventually, his secret keys, a message was posted on the Internet by John Young, indicating that it was a message from the defendant, stating: "I hope that anyone who has possession of the PGP Secret Keys for Toto, TruthMonger, Son of Gomez, Magic Circle, etc., feels free to use them to digitally sign messages to the Cypherpunks ...."

All of this conduct runs directly counter to acceptance of responsibility and supports an obstruction enhancement, as recommended in the revised PSR and addendum.

3. Adjustment for Use of Special Skill in Facilitating or Concealing the Offense. It is the view of the Government and the probation officer that the defendant's offense level should include a two (2)-level enhancement for use of a special skill in facilitating the crime and/or concealing it, as contemplated by USSG 3B1.3. In essence, this case was about the defendant's use of his computer expertise -- in particular. his knowledge of relatively arcane programs, devices and software such as PGP encryption, anonymous remailers, and forged e-mail headers -- to conceal his authorship of some of the threatening emails. Through the use of anonymous remailers, for example, the defendant was able to 'strip away' the header information and other textual indications of the pathway by which a threatening e-mail traveled from his computer to its intended (or unintended) recipients. Indeed, it was the use of an anonymous remailer that made it initially impossible to identify the sender of the threat against Judge Arnold. It was that impossibility that made that threat of particular concern to Judge Arnold, as he testified.

The use of remailers, forged e-mail headers, and digital encryption and concealment

technologies relied upon by the defendant required special knowledge and skill. As the testimony at trial made clear, they present considerable challenges to law enforcement officers and computer forensics experts who wish to trace the origins and pathways of particular emails. Furthermore, as the defendant himself argued to the Court when he sought to represent himself pro se, only he possessed the requisite sophistication and skill necessary to mount an effective challenge to the Government's use of computer forensics to trace and prove the authorship of threatening e-mails that had been sent through such devices as anonymous remailers and PGP encryption.

The threat to Judge Arnold was sent using an anonymous remailer, making it impossible to trace. The threat against Judge Fletcher was sent using forged headers, meaning that the message appeared to come from "truthmailer@dev.null" (a totally fictitious Internet address) instead of from the actual account that was used to send it, again making it difficult to trace. This message was also encrypted using PGP software, and was signed and authenticated using a PGP digital signature.

4. Total Offense Level. In the Revised Presentence Report, the probation officer has scored (27) points as the Total Offense Level. We agree with the calculations set forth at Paragraphs 70 through 81 of the Revised PSR, and ask the Court to find that these are the applicable multiple-count calculations of the Total Offense Level. With a Total Offense Level of 27, and a Criminal History Category of 1, the corresponding range of imprisonment would be 70 to 87 months.

5. Departures. The defendant's counsel has indicated that he will be presenting medical diagnostic material as grounds for a possible motion for a downward departure. We do not necessarily agree that the defendant's proffered evidence relating to his mental condition, even if taken as true, places his case outside the heartland of threat cases. Such cases, after all, quite often involve troubled individuals threatening the lives of judges or other people in authority. Indeed, it is the Government's experience that people who threaten Presidents or judges are usually people who are suffering from some form of mental

disability. While the mental condition may offer some mitigating explanation for the offense behavior, it does not necessarily take the offense outside the heartland of threat cases.

Nevertheless, if the Court wishes to impose a sentence below the guideline range, the Government will not attempt to undermine or refute the medical conclusions in Dr. Woods' psychiatric report.

6. Government's Recommendation. We recommend a term of imprisonment at the low end of the guideline range, assuming that the Court finds the range to be 70-87 months. We agree with Probation that a fine should be waived, and that the defendant be placed on a three-year period of supervised release after his imprisonment, on the terms and conditions specified in the recommendation of the probation officer.

DATED this day ______ of June, 1999.

Respectfully Submitted

United States Attorney


Assistant United States Attorney


Assistant United States Attorney


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