Case 2:03-cr-00641-BMS

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Filed 07/13/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA :

v. : ALLAN ERIC CARLSON : CRIMINAL NO. 03-641

DEFENSE SENTENCING MEMORANDUM I. INTRODUCTION:

Allan Carlson has been convicted of twenty six counts of 18 U.S.C. 1030 (a) (5) (A) (i); twenty six counts of 18 U.S.C. 1030 (a) (5) (A) (ii) and twenty seven counts of 18 U.S.C. 1028 (a) (7). The convictions followed a trial by jury. The present sentencing Judge, Hon. Berle M. Schiller was also the presiding judge at trial and as such, counsel is aware that he is fully conversant with the facts of the case. These facts are further summarized in the Government's Sentencing Memorandum and the pre-sentence report. It is therefore unnecessary for this memorandum further to delve into the facts except to emphasize one fact brought forth at trial. Given the record, the phenomenon of "spoofing""needs no further definition. During all the spoofing that took place during Mr. Carlson's attempts, misguided though they were, to generate debate on the policies of the Phillies management relating to its approach to the hiring of expensive star players, he did not intentionally use invalid email addresses with a view to causing bounceback emails to shut down computers. The email addresses he did use were culled from databases of email addresses on alumni websites and the like which contained email addresses that at least at one time or another were valid addresses. As it turns out, many were invalid and they bounced back with negative effect, but it is not as if, for example, he used thousands of patently invalid addresses that would clearly and predictably have had that effect. He could easily, for example, have included millions of addresses such as 1@2.com or a@b.com. He did not. He could have. The jury has spoken and found as a matter of fact not only that his actions were intentional but that their effects were intended also, and has convicted not just of the "reckless" charge (18 U.S.C. 1030 (a) (5) (A) (ii)) but also of the "intentional" charge 18 U.S.C. 1030 (a) (5) (A) (I.) However, there is mitigation for sentencing purposes to be discerned in the fact that he did not use patently invalid email addresses in a way easily accomplished by even a non-savvy computer user who might wish to accomplish a distributive denial of service attack.

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II. THE SENTENCING GUIDELINES AND SENTENCING FACTORS OF 18 U.S.C. 3553 (a). The guidelines issues were found by the jury or, with agreement between the parties, by the court at a beyond reasonable doubt standard. The Government's Sentencing Memorandum sets these factors forth in detail. The Offense Level is 16. The Government seeks a further upward departure based on Application Note 15(A)(i) to 2B1.1. That Application Note reads as follows: 15. Departure Considerations (A) Upward Departure Considerations. -There may be cases in which the offense level determined under this guideline substantially understates the seriousness of the offense. In such cases, an upward departure may be warranted. (i) [A] primary objective of the offense was an aggravating, non-monetary objective. For example, a primary objective of the offense was to inflict emotional harm. The offense level of 16 determined under this guideline adequately reflects the seriousness of this offense. Without meaning to understate the harm done to the complainants and the aggravation which this offense no doubt occasioned, the harm was repaired. Computer networks were slowed not destroyed. Mr. Carlson did not steal any money from the complainants, nobody was physically hurt. People were annoyed, feelings were hurt and reputations were assailed but they were not irreparably damaged. True, the individual reporters had to respond to the angry emails they received, but there is no report that any of their explanations to the angry emailers that they were not responsible for the emails sent out under their byline were not accepted. The seriousness of this offense is not understated by a guideline range that calls for thirty-three to forty-one months prison time. It certainly is not substantially understated as required by Departure Consideration 15. The Government asks that the court consider the sentencing factors of 18 U.S.C. 3553(a) (except for the one that recommends a rehabilitative component to the sentence.) The first sentence of the section reads: The court shall impose a sentence sufficient, but not greater than necessary to comply with the purposes set forth in paragraph 2. Emphasis supplied. Those purposes are: (1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the need for the sentence imposed(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense (B) to provide adequate deterrence to criminal conduct. (C) to protect the public from further crimes of the defendant

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(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner. A. There is no question that the offense, like all criminal offenses, is serious. The complainants were occasioned harm of an irritating and upsetting nature. Monetary loss resulted and reputations were impugned. There will be no argument that the sentence should provide for just punishment. However, irrespective of how angry the complainants were or still may be, we must recognize that the damage was not irreparable and, to a great extent, those who were given the impression that the writers involved wrote the words of Mr. Carlson, have been set straight on that score. Quite likely people accepted the reporters explanations that they were not the source of the emails. Most people who got the messages probably deleted them and never gave another moments thought to their authorship. No-one was physically harmed. Anger because of harrassment and annoyance, justifiable though it may be, is not the same as emotional distress or harm. B. and C. The world is filled with frustrations for people who are passionate about their beliefs but impotent in their ability to implement them. It is especially hard for people like Mr. Carlson who are emotionally challenged, to deal with the modern world. However, the experience of a midnight raid on his home by numerous federal agents followed by enforced transportation and relocation across the country, a federal indictment and trial and a likely prison sentence are all bound to have a salutary effect on an individual who, annoying though his record may be, is scarcely accurately described as a hardened criminal. Mr. Carlson will be deterred by the prospect of a repeat of the process alone. A prison sentence of even a short duration will deter further offenses. D. Counsel for the Defense has not seen a copy of the Psychiatric report prepared by Dr. Summerton, but has read a summary of the findings in the revised presentence report. The Doctors findings appear to an inexpert reading to fall short of a diagnosis of serious mental illness, but there are definite traits which indicate that Mr. Carlson is a seriously emotionally disturbed person. This needs to be addressed. A long prison sentence such as the one he received in California for breaking car windows has demonstrated its counter-effectiveness. What Mr. Carlson needs is training and counseling to help him to function in free society. This will best be accomplished, after a modest period of incarceration, by a period of supervised release with a treatment component to be determined by a complete psychiatric evaluation. The Government has selected this factor to be the one that it urges the court should not play much of a role in the Courts approach to the sentence. (Governments Sentencing Memorandum at page 11.) The Defense respectfully disagrees. A mechanistic possession of computer skills well beyond those of the average citizen is no measure of a mans education or understanding. Education is that which is left behind when we forget the things we learn in school. Education, insight and understanding is precisely where Mr. Carlson is lacking despite his ability to negotiate the internet. He needs direction and he needs professional help to find that direction. He is a lost and lonely soul. It is no longer fashionable to invoke it in court given the violence and nastiness of many of the crimes which end up in court these days, but a measure of compassion for Mr. Carlson, a man possessed of so much angst, would not be entirely out of place. The Government suggests that the court impose a sentence that is informed by the 2004

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guidelines when the 2002 ones are applicable. (Government's Sentencing Memorandum page 12) There may be a way to fashion such a sentence avoiding ex post facto issues by considering the new guidelines as opposed to applying them as the Government suggests, but the bottom line is the same. The Government refers the court to law that did not exist at the time of the offense and suggests a way for a sentence to violate the spirit of ex post facto whilst keeping within its letter. The court should decline the suggestion. The Defense does not presume to tell the court what specific sentence is appropriate for Mr. Carlson, but it does request that the court take into account the fact the points raised and to exercise its discretion in a merciful direction by fashioning a sentence that is not greater than necessary to accomplish the policies behind section 3553 (a)

Respectfully Submitted,

THOMAS IVORY Attorney for Allan Eric Carlson.