23 June 1998: Add Greg's follow-up message
Date: Tue, 23 Jun 1998 16:31:10 -0700 To: cypherpunks@cyberpass.net, lacc@suburbia.net From: Greg Broiles <gbroiles@netbox.com> Subject: Jim Bell's conditions of probation, appeal (More information about Jim Bell is available at <http://www.parrhesia.com/jimbell/> and <http://www.jya.com/jdbfiles.htm>.) I took a look at Jim Bell's appellate file at the Ninth Circuit today - am planning to go back and get copies of the full filings (ran out of nickels), but this is the substance of what I found - Jim was sentenced to 11 months prison time (now already served), and three years of supervised release. The "standard terms" (imposed on all defendants who get supervised release from that court) were: 1. the defendant shall not leave the judicial district without the permission of the court or probation officer; 2. the defendant shall report to the probation officer and shall submit a truthful and complete written report within the first five days of each month; 3. the defendant shall answer truthfully all inquiries by the probation officer and follow the instructions of the probation officer; 4. the defendant shall support his or her dependents and meet other family responsibilities; 5. the defendant shall work regularly at a lawful occupation unless excused by the probation officer for schooling, training, or other acceptable reasons; 6. the defendant shall notify the probation officer 10 days prior to any change in residence or employment; 7. the defendant shall refrain from excessive use of alcohol; 8. the defendant shall not frequent places where controlled substances are illegally sold, used, distributed, or administered; 9. the defendant shall not associate with any persons engaged in criminal activity, and shall not associate with any person convicted of a felony unless granted permission to do so by the probation officer; 10. the defendant shall permit a probation officer to visit him or her at any time at home or elsewhere and shall permit confiscation of any contraband observed in plain view of the probation officer; 11. the defendant shall notify the probation officer within seventy-two hours of being arrested or questioned by a law enforcement officer; 12. the defendant shall not enter into any agreement to act as an informer or a special agent of a law enforcement agency without the permission of the court; 13. as directed by the probation officer, the defendant shall notify third parties of risks that may be occasioned by the defendant's criminal record or personal history or characteristics, and shall permit the probation officer to make such notifications and to confirm the defendant's compliance with such notification requirement. The court also imposed a number of special conditions suggested by the probation officer. The probation officer recommended that Jim be sentenced to 27 months prison, arguing against both the prosecution (!!) and the defense, who agreed that Jim should be sentenced according to the conduct he'd plead guilty to, rather than adopt the probation office[r]'s suggestion that Jim be sentenced as if he'd plead guilty to a different crime (threatening a government agent). The additional terms are as follows: 1. The defendant be prohibited from possessing a firearm or destructive device as defined in Title 18, United States Code, Section 921. 2. The defendant shall submit to a search of his person, residence, office, property, or vehicle conducted in a reasonable manner and at a reasonable time by a probation officer. 3. The defendant shall participate as directed by the U.S. Probation Officer in a program approved by the Probation Office for treatment of narcotic addition [sic] or drug dependency, which may include testing to determine if the defendant has reverted to the use of drugs. _The defendant shall also abstain from the use of alcohol and/or other intoxicants during the term of supervision._ 4. The defendant SHALL [sic] submit to mandatory drug testing pursuant to 18 U.S.C. section 3563(a)(4) and 18 U.S.C. section 3583(d). 5. The defendant shall participate in a mental health program approved by the United States Probation Office. THe defendant shall authorize the release of the psychological evaluation performed by Dr. Sheppard Salusky on September 13, 1997, to other mental health practitioners as directed by the probation office [handwritten from here], and to the Probation Office for purposes of determining an appropriate mental health program. 6. The defendant shall provide the Probation Officer with access to any requested financial information, including authorization to conduct credit checks and obtain copies of defendant's Federal Income Tax Returns. 7. The defendant shall be prohibited from incurring new credit charges or opening additional lines of credit [handwritten from here], without approval of Probation Department. 8. All employment of the defendant shall be subject to the prior approval of the U.S. Probation Officer. 9. The defendant shall cooperate fully and truthfully with the IRS, including filing all due tax returns, paying all required taxes, and fully disclosing assets and information as requested by the IRS. 10. The defendant shall cooperate fully and truthfully with the Bankruptcy Court, including disclosing assets and information as required by the Court. 11. The defendant shall provide full cooperation and assistance to Federal agents in locating and recovering any buried chemicals, including the chemical Mercaptan. 12. The defendant shall provide the Probation Office with the name and Internet address of any Internet account use [sic]. 13. The defendant shall not possess or use a computer or use the Internet without permission of the Probation Officer. 14. The defendant shall not possess or use any computer encryption software or programs, remailers, or anonymizers. 15. The defendant shall not possess or use address or locator computer database files, such as DMV, voter registration, national phone directories, real estate records, etc. 16. The defendant shall not advocate or propose assassinations or the violent overthrow of the Government, or provide any assistance to any person involved in such a scheme. 17. The defendant shall not possess any chemicals, compounds, or equipment for use in making chemicals or compounds. 18. The defendant shall not possess carbon fiber or nickel carbon fiber. 19. The defendant shall not participate in illegal activities or with groups which are or are likely to engage in illegal activities, such as "Common Law Courts" and Patriot Militia. 20. The defendant shall not possess, obtain, or disseminate the home address or phone number of any Government employee (absent their express permission). 21. The defendant shall not (handwritten: "knowingly") be within 200 yards of the residence of any Government employee (absent their express permission). 22. The defendant shall not be on or (handwritten - crossed out typed "near", added "use or be in") any Federal property or building without a previously scheduled appointment and/or approval of the Probation Office. 23. The defendant shall not use aliases or false identities, to include communicating on the Internet, using anything other than his correct name. 24. The defendant shall not possess any lockpicking tools. XX. The defendant shall pay immediately restitution in the amount of $1,359.00. Any unpaid amount is to be deducted from defendant's recovery payment program while incarcerated. The remaining balance is to be paid during any period of supervision in monthly installments as directed by defendant's United States Probation Officer. The substance of Jim's appeal (presented on his behalf by the federal public defender) is as follows: 1. That the special conditions constitute an abuse of discretion and are not reasonably related to legitimate state ends. 2. That the special conditions constitute a violation of Jim's right to due process, in that they are vague, overbroad, unduly burdensome, and subject to arbitrary enforcement by the probation office. 3. That the special conditions violate Jim's First Amendment rights to free speech, association, and privacy. 4. That the release of Jim's psychiatric interview/exam to the probation office (where the plea agreement specified that it would *not* be released to them) constitutes an abuse of discretion and a violation of the plea agreement. 5. That the special conditions and the release of the psychiatric data should be stayed pending appeal. The substance of the government's argument in response is: 1. That the special conditions can't be appealed until/unless Jim violates them; 2. That the conditions are constitutional and reasonably related to protecting the public and/or rehabilitating Jim. The court denied the request to stay the sentence/conditions/release until the appeal is final. Also part of the court's file was an excerpt from the record, which included a transcript of Jim's guilty plea and of his two sentencing hearings. The transcript of the guilty plea reveals that Jim was under the influence of tranquilizers at the time of his plea, and indicated that he'd appreciate medical or mental health assistance (didn't indicate which), that he felt his judgement was poor, but that he wanted to go ahead and plead guilty. The transcripts of the two sentencing hearings reveal that there was a considerable disparity between the recommendations of the prosecution and the defense (who agreed that Jim was eligible for a sentence of between 6 and 12 months) and the probation office, who thought he was eligible for a sentence of between 8 and 14 months, but wanted the judge to sentence him to 27 months in an "upward departure" from the guidelines due to Jim's allegedly egregious conduct. The judge ended the first sentencing hearing with the comment that he thought that there was information which hadn't been made available to him, that he wanted to hear everything that the different parties knew, and asked them all to come back two weeks later with full information. The transcript of the second hearing is somewhat abbreviated, and does not disclose the information the judge was apparently seeking; however, there was a hearing which was unrecorded (or the recording is not part of the public records) referred to in the appellate briefs. Apparently, in that secret hearing, it was revealed that Jim was debriefed by the FBI, and he turned over his PGP passphrase(s) to them so that they could decrypt his files; and that a report prepared by the FBI as a result of that information was erroneously provided to the probation office. The judge offered to let Jim withdraw his guilty plea and/or recuse the court so that Jim could be tried before another judge, apparently as a result of any possible bias created by the probation officer's release of information which shouldn't have been made available to the officer or the judge. Jim refused both offers, and was sentenced to 11 months. The appellate briefs also reveal that the various chemicals taken from Jim's house were tested by the Army; the incriminating substances found were hydrogen cyanide and a precursor to a sarin derivative/analog, which would've had 1/6 the potency of "ordinary" sarin. (perhaps someone with a chemistry background can provide clarifying information here, I can't comment on the sanity/accuracy of those comments.) During the sentencing, there was discussion about the scope of the restrictions on Jim's conduct on/near Federal property - the probation officer explicitly said (and the judge approved) that Jim needs permission from her before he can go to a post office to buy a book of stamps. It'll be interesting to see what the 9th Circuit does with this; also, to see what Jim's been charged with violating. There's a short store re his rearrest at <http://www.columbian.com>, more details should be available after his hearing this afternoon. -- Greg Broiles |History teaches that 'Trust us' gbroiles@netbox.com |is no guarantee of due process. |_Kasler v. Lundgren_, 98 CDOS 1581 |(March 4, 1998)
Date: Tue, 23 Jun 1998 18:38:32 -0700 To: cypherpunks@cyberpass.net, lacc@suburbia.net From: Greg Broiles <gbroiles@c2.net> Subject: Re: Jim Bell's conditions of probation, appeal A few follow-up comments to my earlier message - >The transcript of the second hearing is somewhat abbreviated, and does not >disclose the information the judge was apparently seeking; I meant to say that the hearing itself seemed somewhat abbreviated - I don't doubt that the transcript accurately reflects what occurred during the hearing, but got the impression that the hearing was shortened by the preceding off-the-public-record hearing. >Apparently, in that >secret hearing, it was revealed that Jim was debriefed by the FBI, and he >turned over his PGP passphrase(s) to them so that they could decrypt his >files; and that a report prepared by the FBI as a result of that >information was erroneously provided to the probation office. Jim also commented that he believed that the feds (specifically, the IRS) had been wiretapping or otherwise gathering information about him for a much longer time period than had been disclosed by the prosecutor; he said that he believed that the prosecutor was telling the truth when she said she wasn't aware of it, but that the IRS and/or other agencies were withholding that information - which Jim believed would provide a more complete context for his actions/writings, putting him in a more sympathetic light - and that his (Jim's) attorney, Peter Avenia, had advised him against mentioning this topic, but that he was doing so in spite of that advice. No comment was made about this allegation. Shortly thereafter, the judge interrupted Jim and asked him to clarify whether or not his comments were intended to suggest that he wanted to change his plea, or otherwise object to the proceedings; Jim indicated he did not, but was trying to counter a misleadingly negative impression of him created by the probation office via the presentence report. Also, the transcripts revealed that the IRS investigating agent, Jeffrey Gordon, was present and seated at counsel table during every hearing/appearance. (That's not unusual, but it does indicate that the IRS/investigator cared enough about the case to make sure that they showed up.) -- Greg Broiles gbroiles@c2.net 510-986-8770 x 309 510-986-8777 fax