Polgar Discussed In Alexander Filing by US Attorney
B. Lafferty
UNITED STATES OF AMERICA
Plaintiff
v.
GREGORY ALEXANDER,
Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. CR-09-00719-MHP
GOVERNMENT’S RESPONSE AND OPPOSITION TO DEFENDANT'S MOTIONS FOR:
(1) BILL OF PARTICULARS;
(2) TO COMPEL DISCOVERY; and
(3) DISMISSAL OF AGGRAVATED IDENTITY CHARGE
TOGETHER WITH A STATEMENT OF FACTS, MEMORANDUM OF POINTS AND
AUTHORITIES, AND UNITED STATES’ MOTION FOR:
JOSEPH P. RUSSONIELLO (CSBN 44332) United States Attorney
BRIAN J. STRETCH (CSBN 163973) Chief, Criminal Division
RICHARD C. CHENG (CSBN 135992) Assistant U. S. Attorney
150 Almaden Boulevard, 9 Floor
th
San Jose, California 95113
Telephone: (408) 535-5032
Fax: (408) 535-5066
e-mail: richar...@usdoj.gov
Attorneys for Plaintiff
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION
)
) (1) RECIPROCAL DISCOVERY
)
) DATE:
TIME: .
COMES NOW the plaintiff, UNITED STATES OF AMERICA, by and through its
counsel, Joseph P. Russoniello, United States Attorney, and Richard C.
Cheng, Assistant United States Attorney, and hereby files its Response
and Opposition to Defendants’ above-referenced motions.
//
// I.
STATEMENT OF FACTS
A. The Indictment
The Indictment charges defendant GREGORY ALEXANDER with thirty-four (34)
separate counts of intentionally accessing a computer without
authorization, in violation of 18 U.S.C.
§ 1030(a)(2)(C) and (c)(2)(B)(ii); and one count of aggravated identity
theft, in violation of 18 U.S.C., § 1028A(a)(1). The Indictment alleges
that ALEXANDER violated the laws of the United States laws by illegally
accessing the e-mail account of randal...@yahoo.com, belonging to
Randall Hough, and operated by Yahoo!, Inc; as well as illegal
possession and use of a means of identification of another, specifically
the username and password belonging to and assigned to Randall Hough, in
relation to committing a fraud in connection with computers.
.
B. Summary of Facts
From Fall 2007 to Spring 2008, Gregory Alexander accessed the personal
email account of Randall Hough, a Director on the United States Chess
Federation Board (Board), and obtained privileged attorney-client
material. The privileged attorney-client material at issue was comprised
of confidential e-mail communications from Karl Kronenberger, external
counsel for the United States Chess Federation (USCF), to the members of
the United States Chess Federation Board of Directors Legal Subcommittee
(Legal Subcommittee) of which Alexander was not a member. No one outside
the Legal Subcommittee had permission to access this privileged
attorney-client material. Kronenberger’s assessment of the compromised
materials accounts for a loss of over $50,000 to the Federation.
Moreover, Alexander has admitted in court proceedings that internet
protocol addresses used to access Hough’s personal email account
belonged to him, Alexander . Furthermore, the use of an Internet
Protocol (IP) address masking tool depicts Alexander’s efforts to avoid
detection. Messages collected suggest that on at least one occasion,
Alexander accessed Hough’s account at the behest of Susan Polgar, who
was at the time, a Director on the Federation Board.
C. Background
Beginning in June 2005, approximately 2500 messages, many with
inflammatory content, were posted to internet newsgroups (newsgroups)
and attributed to Sam Sloan, a then sitting and now former Director on
the United States Chess Federation (USCF) Board. The postings were
concentrated in chess related newsgroups and focused on principals and
institutions associated with the USCF. In September 2007, Brian
Mottershead, a USCF web systems administrator, began an investigation
into the source of the postings. Mottershead noticed that several of the
Newsgroup postings were copies of posts originally made on an internal
USCF web forum. Since posts to the USCF web forum at issue were only
accessible to USCF members, Mottershead theorized that the source of the
postings was a member of the USCF. By matching the publicly available
internet protocol (IP) addresses in the headers of the Newsgroup
postings to the IP addresses attributable to USCF members logging into
the USCF web forum, a single suspect was identified: Paul Truong, a USCF
Board Member and the husband of Susan Polgar. Mottershead’s forensic
techniques were subsequently evaluated by outside experts who concluded
that the techniques employed were sound.
The investigation shows the value of a seat on the USCF Board of
Directors carries prestige within the chess community and associated
opportunities to monetize that prestige. For example, Directors may
garner opportunities to earn speaking fees or host tournaments. At the
time the postings began, Sloan was a sitting member of the USCF Board
and up for election. In the election cycle following the release of the
newsgroup postings, Sloan lost his bid for reelection while Truong and
Polgar became first-time Directors.
As a result of the allegations made in Mottershead’s report against a
sitting Board Member, the USCF retained attorney Karl Kronenberger
(Kronenberger) in October 2007. On Kronenberger’s recommendation, the
USCF Board formed a subcommittee (Legal Subcommittee) consisting of the
members of the USCF Board with the exceptions of Truong and Polgar.
Truong and Polgar were excluded from the Legal Subcommittee since Truong
was the subject of the allegations at issue and Polgar was married to
Truong. Kronenberger then began communicating with the members of the
Legal Subcommittee by electronically sending privileged attorney-client
material (privileged material), including legal strategy, to the
personal email accounts (or in the case of USCF Executive Director Bill
Hall, to his USCF issued email account) of the Legal Subcommittee members.
In late 2007 and early 2008, Polgar communicated via email to the other
members of the full USCF Board several times and repeatedly referenced
contents of the privileged material to which she, Polgar emails
Kronenberger emails Privileged material referenced
Dec. 1, 2007 Nov. 27, 2007 Legal strategy related to the insurer, Chubb
Dec. 5, 2007 Nov. 27, 2007 Legal strategy related to the insurer, Chubb
Jan. 13, 2008 Nov. 27, 2007 Verbatim quotation
ostensibly, did not have access. Specifically, in Dec. 1, 2007, Dec. 5,
2007, Jan 13, 2008, Jan. 24, 2008, and June 23, 2008 communications,
Polgar made references to confidential legal strategy, confidential
negotiations, and/or quoted verbatim from privileged material or private
communications between other Board members.
D. The Intrusion Into Hough’s Yahoo E-mail Account
Given the compromise of the privileged material, Kronenberger initiated
an investigation to identify the source and later alerted the United
States Secret Service (Secret Service). In doing so, Kronenberger and
the Secret Service were able to identify several instances of intrusions
into the Hough account by
1/
comparing Hough’s known internet activity and physical location to the
IP addresses used to access Hough’s account. As a result of subpoenas
for records related to the IP addresses from which the intrusions
originated, Alexander was revealed as the owner in question. Additional
comparisons of IP address logs from internet services used by Alexander
to the IP addresses used to intrude upon the Hough account, revealed a
strong correlation of the timing between Alexander’s usage, intrusions
into the Hough account, communications by Kronenberger of privileged
material to the Legal Subcommittee and references to privileged
materials made by Polgar in communications to the USCF Board.
According to Kronenberger, he began the investigation on behalf of the
USCF in response to the references made by Polgar to privileged
materials in communications to the USCF Board. Upon being questioned
about her source for the privileged material, Polgar originally claimed
to have obtained the privileged materials from the Internet and, later,
an anonymous source who would be willing to testify. USCF investigated
Polgar’s claim that the privileged material was available on the
Internet and was not able to verify Polgar’s assertion. *Additionally,
Polgar failed to produce the anonymous source.* USCF then had the
members of the Legal Subcommittee sign affidavits to the effect that
none of the emails in
1/For these purposes, ‛intrusion’ will be used to describe activity that
could not be reconciled with Hough’s attempts to access his personal
email account from Hough’s known physical locations and/or internet
service. the possession of the Legal Subcommittee had been forwarded.
Without additional evidence, the USCF was initially unable to determine
how Polgar had gained access to the privileged material.
On June 23, 2008, however, Polgar sent an email to the members of the
Legal Subcommittee that referenced the content of an email exchanged
just hours earlier between Legal Subcommittee members Hough, Bill
Goichberg, and Jim Berry. To determine if the email accounts of Hough,
Goichberg, and/or Berry were sources for Polgar of privileged material,
USCF filed a John Doe lawsuit in San Francisco Superior Court and used
the accompanying subpoena power to obtain a list of IP addresses that
logged into the Goichberg, Hough, and Berry personal email accounts
during the period in question.
The USCF investigation, which was later duplicated by the U.S. Secret
Service, showed multiple IP addresses were used for logging into Hough’s
email account (Hough account) were not attributable to Hough’ s
legitimate computing activity. Subsequently, an investigation by Agent
Kyle Haynes of the Secret Service confirmed Kronenberger’s findings.
Indeed, matching the IP addresses attributable to Hough’s physical
location at the time period in question revealed 166 instance of
intrusions into the Hough account from multiple IP addresses between
November 2007 and July 2008. Additionally, Hough informed the USCF that
he, Hough, deleted very little from his e-mail account such that there
were approximately 5000 messages in the ‛sent mail’ folder and 4000
messages in the ‛inbox’ folder. Therefore, any individual who gained
unauthorized access to the Hough account would have access to
significant portions of email correspondence sent and received by Mr.
Hough. The investigation conducted by the U.S. Secret service found that
of the USCF principals involved, only the Hough account was known to
have been compromised.
Upon additional examination, it was determined that 16 of the intrusions
into the Hough account were attributable to an IP address owned by
Comcast. Subpoenaed information showed that the IP address from which
those 16 intrusions into the Hough account originated was based in the
Seattle, Washington area. Some of the other IP addresses from which
unauthorized access originated were similarly owned by Comcast and also
attributable to Seattle. Finally, another large group of IP addresses
from which the intrusions originated were owned by Anonymizer. Based on
these findings, records
2/
2/Anonymizer is a web-based service which masks an account holder’s
actual IP address by supplying an Anonymizer IP address to websites with
which the account holder communicates. Stated from Comcast and
Anonymizer were subpoenaed in order to obtain the identity of the
subscriber(s) using the IP addresses associated with intrusions into the
Hough account.
The standard for internet service provider responses to subpoenas for
customer identities associated with IP addresses is to notify the
customer that the customer has two weeks to file a motion to quash
before the internet service provider turns over the identity. Typically,
if the customer wishes to protect their identity, an attorney will be
hired to represent the customer’s interest and preserve the customer’s
anonymity. *In this case, Alexander made the appearance in San Francisco
Superior Court on November 5, 2008 to claim the Comcast IP address in
question and argue for the motion to be quashed. In making the
appearance and claiming the IP address in question, Alexander revealed
his identity.*
*The investigation conducted by the U.S. Secret Service revealed that
Alexander was a known associate of Polgar’s. Specifically, Alexander was
a Seattle area-based webmaster and business associate of Polgar.
Alexander worked for the University of Washington’s Internet Technology
(IT) department. As part of Alexander’s association with Polgar,
Alexander served as the webmaster for several websites owned by Polgar
including ChessDiscussion.com. Based on Alexander’s ownership of the IP
address used to gain unauthorized access to the Hough account, it was
suspected that Alexander was a source for Polgar of the privileged
material.*
As part of the investigation, logs of IP addresses used to log into the
Hough account between June 22, 2008 and June 24, 2008 were subpoenaed
from the Hough account’s internet service provider, Yahoo!. Initial
analysis of the Yahoo! IP logs for the Hough account revealed that two
intrusions into the Hough account had been made with an Anonymizer
issued IP address between June 22, 2008 and June 24, 2008. Another
subpoena was then issued to Yahoo! for IP addresses used to log into the
Hough account dating back two years. The expanded Yahoo! logs of IP
addresses used to access the Hough account dating from November 21, 2007
to August 25, 2008 also listed Anonymizer and Comcast issued IP addresses.
Subpoenas were then served on Anonymizer for all data relating to
Alexander. Anonymizer produced IP logs and a record listing Alexander as
having created an Anonymizer account on September 28, 2007 with billing
to Alexander’s address at 8416 Monte Cristo Drive, Everett, Washington
98208.
differently, Anonymizer provides the proxy IP address service
described above. The Anonymizer records listed several IP addresses as
the originating sources of traffic for Alexander’s account with
Anonymizer. These originating IP addresses belonged to Comcast and was
linked directly to Alexander by his own admission and by subpoenaed
information from Comcast. Additionally, the U.S. Secret Service
investigation compared IP logs and customer subscription information
supplied by Anonymizer to the IP logs for access to the Hough account
supplied by Yahoo!. That comparison demonstrated that for each of the
149 intrusions by an Anonymizer IP address into the Hough account, the
dates and times of Alexander’s use of his Anonymizer account
corresponded to the dates and times of intrusions into the Hough
account. Many of these intrusions by Anonymizer IP addresses into the
Hough account originated from a Comcast issued IP address known from
Comcast’s records to belong to Alexander. The other IP addresses are
believed to be Comcast owned and issued to Alexander, but fall outside
of the scope of the records kept by Comcast.
Additionally, the Secret Service investigation compared Alexander’s
login dates and times for the user-name and password protected sections
of the USCF website, uschess.org, and the intrusions into the Hough
account. From that, the Secret Service investigation determined that
from November 26, 2007 to February 17, 2008, ten logins to Alexander’s
account with uschess.org originated from the same IP address as
intrusions into the Hough account that occurred at approximately the
same time, give or take one day.
Finally, a comparison of (1) intrusion into the Hough account (2) use of
the Anonymizer service by Alexander (3) the communication of privileged
materials or private messages via email to and among Legal Subcommittee
members and (4) communications to the Legal Subcommittee members by
Polgar referencing privileged material to which Polgar was not supposed
to have access demonstrates a confluence of events that strongly
suggests (A) Alexander accessed the Hough account (B) without
authorization and (C) obtained privileged material resulting in an
estimated loss of $50,000 to the USCF. See Figure 1.
//
//
//
// Send Date of
Compromised
Emails Anonymizer usage Hough accn’t
intrusions Date of Polgar email
referencing compromised
content
Wed 10:37:nn
(PST) Nov. 27,
2007 Fri 22:47:5 1 (PST)
Nov. 29, 2007 Fri 23:57:25 (PST)
Nov. 29, 2007 Dec. 1, 2007
Dec. 5, 2007
Jan. 13, 2007
June 23, 2008
Sun 17:48:24
(CST), June 22,
2008 Mon 01:13:58 (CST)
June 23, 2008 Mon 02:17:27 (CST)
June 23, 2008 June 23, 2008
Fig. 1: Comparison of timing for key events
‛Anonymizer usage’ category describes Alexander’s next use of the
Anonymizer service after the compromised email in question was sent.
‛Hough accn’t intrusion’ category describes next intrusion into the
Hough account after the compromised email in question was sent.
Of note, the privileged material or private communications known to have
been compromised are as follows:
1. November 27, 2007, 10:37 a.m. PST
2. December 20, 2007, 6:31 p.m. PST
3. January 7, 2008, 12:37 a.m.
4. January 7, 2008 6:21 p.m.
5. January 11, 2008, 1:49 p.m.
6. June 22, 2008, 5:48:24 p.m.
E. Loss Amounts
The intrusion into Hough’s e-mail account caused loss that may be
calculated with by the amount of time, effort and consequently money it
took for the Chess Federation to discover the intrusion and identify the
intruder. Another method of calculation would be focused upon the value
of the e-mails or other information accessed by Alexander from Hough’s
e-mail account. This valuation is therefore focused on the e-mails sent
by Kronenberger to members of the Chess Federation’s Litigation Committee.
The cost / loss breakdown as a result of the intrusions by Alexander are
as follows:
a. $39,524 in legal fees to respond to the offense, identify the dates
and times of the
intrusion, identity of the intruder, and conduct a damage assessment;
b. $3,370 in costs paid to various service providers to respond to the
offense,
identify the dates and times of the intrusion, identity of the intruder,
and conduct a damage assessment;
c. At least $6,057, arising from over 180 hours of time spent by the USCF
Executive Director in responding to the offense, reviewing damage
assessments, and identifying the intruder; and
d. Furthermore, the value of the materials that were unlawfully taken
from the
victim’s email account was $6857.41; specifically, the USCF incurred at
least $6,857.41 in legal fees (incurred prior to fees and costs in the
above bullet points) directly related to the content that was stolen
from Mr. Hough’s email account. This $6857.41 relates to the research,
investigation and legal drafting time of all law firm staff that went
into three emails sent to the Litigation Committee, which were stolen
via unlawful access to Hough’s email account.
II.
DEFENDANTS’ MOTION FOR A BILL OF PARTICULARS
Defendant Alexander has moved for a bill of particulars. As discussed
below, the defendant is not entitled to a bill of particulars in this
case, much less an order requiring the Government to respond to their
lengthy list of questions.
The purpose of a bill of particulars is threefold:
(1) to minimize the danger of surprise at trial;
(2) to provide sufficient information on the nature of the charges so
as to allow preparation of a defense; and
(3) to protect against double jeopardy.
United States v. Robertson, 15 F.3d 862, 873-74 (9th Cir. 1994), rev'd,
in part, on other grounds, 115 S. Ct. 1732 (1995); United States v.
Burt, 765 F.2d 1364, 1367 (9th Cir. 1985).
A district court's ruling on a motion for a bill of particulars will be
upheld absent abuse of discretion. United States v. Giese, 597 F.2d
1170, 1180 (9th Cir.), cert. denied, 444 U.S. 979 (1979). A bill of
particulars cannot be used to circumvent Fed. R. Crim. P. 16 discovery
and is not to be the equivalent of a request for complete discovery of
the Government’s evidence. Id. at 1181 (emphasis added). See also,
United States v. Kilrain, 566 F.2d 979, 985 (5th Cir. 1978) (bill of
particulars is not a device by which a defendant may compel disclosure
of the prosecution’s evidence in advance of trial).
In determining whether a bill of particulars is warranted, the court
should consider whether the defense has been advised adequately of the
charges. This can be done in a variety of ways and is most generally
accomplished through the indictment itself. Robertson, 15 F.3d at 874
(bill of particulars appropriately denied where indictment contained
names of alleged coconspirators, approximate dates on which alleged
illegal conduct occurred, and overt acts comprising the illegal
activity). Accord, United States v. DeCesare, 765 F.2d 890, 897-98 (9th
Cir.), amended on other grounds, 777 F.2d 543 (1985).
Federal Rule of Criminal Procedure 7(c) states that an indictment must
contain “a plain, concise and definite written statement of the
essential facts constituting the offense charged.” A Bill of Particulars
pursuant to Rule 7(f) is not required where the indictment apprizes the
defendant of the specific charges against him, and thereby minimizes the
danger of surprise at trial, allows him to prepare for trial, and
protects him against double-jeopardy. Robertson, 15 F.3d at 873-74.
Under the authority of Rule 7(f) of the Federal Rules of Criminal
Procedure, a bill of particulars may be ordered by the court. The Ninth
Circuit has stated on many occasions that the purpose of the bill of
particulars is:
"[T]o inform the defendant of the nature of the charge against him with
sufficient precision to enable him to prepare for trial, to avoid or
minimize the danger of surprise at the time of trial, and to enable him
to plead his acquittal or conviction in bar of another prosecution for
the same offense when the indictment itself is too vague, and indefinite
for such purposes."
United States v. Ayers, 924 F.2d 1468, 1483 (9th Cir. 1991). See United
States v. Fleming, 8 F.3d 1264, 1265-66 (8th Cir. 1993) (motion for bill
of particulars denied when indictment sufficient to inform defendant of
charges and no surprise or prejudice); United States v. Colson, 662 F.2d
1389, 1391 (11th Cir. 1981) (motion for bill of particulars requesting
identity of unnamed co-conspirators, dates and locations of
conspiratorial acts, and other detailed information properly denied when
defendant failed to show prejudice and actual surprise at trial because
bill of particulars not to be used merely as discovery tool).
In this case, the discovery provided nearly a year ago includes not only
provides a recitation of the details of the investigation, but
additionally specifies that the information obtained from the protected
personal e-mail account of USCF Board member Hough, was the confidential
legal communications sent from the USCF retained attorney to the members
of the Legal Subcommittee. The value of the communications was also
detailed in the discovery in the same accounted as detailed above.
The substantive counts provide dates and times of the alleged intrusion.
Thus, the essential facts constituting the offense charged are contained
on the face of the indictment. United States v. Schmidt, 947 F.2d 362,
369 (9th Cir. 1991). Additionally, the provided discovery contains a
comprehensive description of the Government’s investigation and case,
outlining the entities subpoenaed and the path that linked the defendant
to the IP addresses used to originate the intrusions into Hough’s
personal e-mail account.
The Government will continue to provide additional discovery on an
ongoing basis and as ordered by this Court. This discovery may included
the confidential e-mails themselves, which may be made available by the
USCF in light of the settlement of civil claims against a number of
parties, except for Defendant Alexander. Such discovery obviates the
need for a bill of particulars. See United States v. Mitchell, 744 F.2d
701, 705 (9th Cir. 1985) (purpose of bill of particulars served if
indictment and discovery provide sufficient details of charges); Giese,
597 F.2d at 1180 ("Full discovery also obviates the need for a bill of
particulars."). Here, the Government has already provided a substantial
amount of discovery and will provide all Rule 16 discovery. In such a
case, the defendants have little chance of being unfairly surprised at
trial.
Considering these circumstances, the three purposes of the bill of
particulars are fulfilled. First, the documents that the Government has
already provided has significantly reduced the possibility of surprise
at trial.
The second purpose of a list of particulars is to provide sufficient
information on the nature of the charges so as to allow preparation of a
defense. The information which the defendant requests in its proposed
transfer of documents in the bill of particulars are much more questions
of discovery. A bill of particulars cannot be used by the defendant in
this case to obtain documents. As such, the very detailed indictment and
the discovery already provide the defendant sufficient information on
the nature of the charges so as to allow preparation for a defense.
Given these facts, the defendants plainly are on notice of the specific
nature and extent of the charges against them. Nothing more is required.
Considered as a whole, the indictment here adequately apprises
defendants of the charges against them.
Moreover, even assuming that the requests made by the defendant are not
a discovery motion but rather a motion on a bill of particulars, many of
the items that the defendant wishes the Government to present have
already been given to the defendant through discovery. For example, the
defendant asks that the Government should identify all the information
and value of the information which were obtained during the alleged
intrusions into Hough’s e-mail account. The Government’s discovery has
identified the subject matter of the legal e-mail communications as well
as how much those e-mail communications and legal analysis that resulted
in the e-mail communications cost the client, USCF. Combined with the
logs of the IP addresses that originated the intrusion into Hough’s
e-mail account which were linked directly and indirectly to the
Defendant, the presented evidence fulfills the obligatory purposes of
the bill of particulars: to reduce the risk of surprise at trial, to
adequately provide sufficient information on the nature of the charges
so as to allow preparation of a defense, and to avoid double jeopardy.
Essentially, the Defendant is asking the Government to lay out its
entire case, which is really discovery under the thin veil of a motion
for bill of particulars. However, the Government has fulfilled its
responsibility by presenting a clear and comprehensive indictment that
does not at all infringe upon the protections afford to the defendant.
The defendants clearly are not entitled to a response seeking
essentially a complete listing of all the evidence, witnesses, acts, and
statements which the Government contends establishes the case. As the
Ninth Circuit has noted, such a request “misconstrues the purpose of a
bill of particulars.” United States v. Ryland, 806 F.2d 941, 942 (9th
Cir. 1986). “A defendant is not entitled to know all the evidence the
government intends to produce but only the theory of the government’s
case.” Id. (citations omitted) (emphasis in original).
Defendant’s request for the "when, where, and how" of every act of the
intrusions and the specific confidential e-mail information obtained by
each of the intrusions, is equivalent to a request for complete
discovery of the government's evidence, which is not a purpose of the
bill of particulars. See Armocida, 515 F.2d at 54. "A defendant is not
entitled to know all the evidence the government intends to produce, but
only the theory of the government's case." Giese, 597 F.2d at 1180-81.
Moreover, defendant fails to “demonstrate surprise, prejudice, or an
increased risk of double jeopardy stemming from the alleged shortcomings
of the indictment.” United States v. Burt, 765 F.2d 1364, 1367 (9 Cir.
1985). The
th
motion presented by the defendant illustrates no concrete evidence of
prejudice or significant disadvantage that the defendant suffers from
not knowing the personal email addresses and bank account numbers of
these third parties. From the indictment and the government evidence
which defendant received, defendant knows the nature of the charges
against him and can prepare for trial. Nothing more is required.
Accordingly, because the indictment and discovery adequately advise the
defense of the charges and the theory of this case, and the Government
intends to provide all discovery, including Jencks materials, prior to
trial and because the defendants have failed to set forth facts
establishing how they will be prejudiced or surprised by a denial of
their motion, defendants’ motion for a bill of particulars should be denied.
III.
DEFENDANT'S MOTION TO COMPEL DISCOVERY SHOULD BE DENIED
As of the date of this Response and Opposition, the United States has
produced over a hundred pages of paper discovery and several compact
discs which contain hundreds of pages of computer log information from
several ISPs and remote computing facilities including Yahoo!,
anonymizer.com and hosts of websites related to his matter.. Additional
discovery will undoubtedly be produced as it becomes available. The
discovery produced is, in many cases, in excess of what is required by
Rule 16 of the Federal Rules of Criminal Procedure and the Jencks Act
(now covered by Rule 26.2 of the Federal Rules of Criminal Procedure).
As to the physical evidence, the United States will make it available
for viewing by defense counsel at a mutually convenient time and place.
However, the Government will not identify which particular documents
will be used to demonstrate culpability, as that obviously would be
beyond its obligations of discovery production to the defendant.
As to exculpatory information, the United States is well aware of its
obligations under Brady v. Maryland, 373 U.S. 83 (1963) and Giglio v.
United States, 405 U.S. 150 (1972) and will comply. The United States
will also produce any evidence of bias/motive, impeachment or criminal
investigation of any of its witnesses which it becomes aware of. An
inquiry pursuant to United States v. Henthorn, 931 F.2d 29 (9th Cir.
1991) will also be conducted. However, the defendant has again failed to
provide any sufficient demonstration of how the addresses of individuals
who were not even included in the indictment could possibly lead to
potential exculpatory information.
The United States will provide a list of witnesses in its trial
memorandum. The grand jury transcript of any person who will testify at
trial will also be produced.
The United States will provide information within its possession or
control pertaining to the prior criminal history of the Defendant. The
United States will provide prompt notice of its intent to offer any
evidence it plans to introduce at trial under Fed R. Crim. Proc. 404(b).
Additional discovery of any prior incident will be provided in discovery.
The United States will produce any reports of experts that it intends to
use in its case-in-chief at trial or are material to the preparation of
the defense. As such, and as per its procedural responsibilities and
obligations, the Government has produced these documents as part of
discovery. In view of the above-stated position of the United States
concerning discovery, it is respectfully requested that no orders
compelling specific discovery by the United States be made at this time.
IV
DEFENDANT’S MOTION TO DISMISS AGGRAVATED IDENTITY CHARGE
A. Count Thirty-Five States a Felony Offense For Identity Theft
Consistent With The Constitution and Should Not Be Dismissed
1. Count 35 States an Offense of a Violation of 18 U.S.C. § 1028A
Count 35 charges Defendant with violating 18 U.S.C. § 1 028A(a)(1) by
knowingly possessing and using, without lawful authority, a means of
identification of another person, specifically the username and password
used to access information on a computer, during and relations to an
offense under 18 U.S.C. §§ 1030(a)2(2)(C) and (c)(2)(B)(ii), and fairly
places Defendant on notice that 18 U.S.C. § 1028A(a)(1) defines the
statutory maximum for that offense. The indictment does this, in part,
by repeating the statutory language and describing the dates of the
offense. That, alone, satisfied the Government’s obligation to plead the
elements of the offense, put Defendant on fair notice, and enabled him
to assert a double jeopardy defense against a future duplicative
prosecution.
2. Count 35 Properly Alleges A “Means of identification”
Tracking the statutory text, the Indictment charges that Defendant “did
knowingly transfer, possess, and use... a means of identification of
another person.” This alone, is enough to satisfy the easily-met
pleading standard in United States v. McAuliffe, 490 F.3d 526, 531 (6th
Cir. 2007).
The previous substantive counts of computer intrusion and introductory
allegations specified the username and e-mail account alleged to have
been compromised by the defendant, to which he also possessed the
password in order to accomplish the intrusions. Even without consulting
the statutory definition, it is not difficult to conclude that something
that is called an “ID”—an abbreviation of the word “identification”—is,
in fact, a “means of identification.” Consulting the statutory
definition makes it even clearer that a Yahoo! ID is a “means of
identification”:
the term “means of identification” means any name or number that may be
used, alone or in conjunction with any other information, to identify a
specific individual, including any—
(A) name, social security number, date of birth, official State or
government issued driver's license or identification number, alien
registration number, government passport number, employer or taxpayer
identification number;
(B) unique biometric data, such as fingerprint, voice print, retina or
iris image, or other unique physical representation;
(C) unique electronic identification number, address, or routing code; or
(D) telecommunication identifying information or access device (as
defined in section 1029(e)) 18 U.S.C. § 1028(d)(7) (emphasis added).
A Yahoo! ID is a “name” in every sense of this definition. It names a
Yahoo! user account, and that account’s associated e-mail address.
Standing alone, it “identifies” one and only one account, and thus
identifies a specific individual. The word “ID” in the description
“Yahoo! ID,” in other words, is well-deserved, and qualifies as either a
“name,” under section 1 028(d)(7)(A), or “unique electronic
identification address” under section 1028(d)(7)(C). Certainly, the
Yahoo! ID and the password to the e-mail account together are sufficient
to identify a particular individual. See, e.g., United States v. Kowal,
486 F.Supp.2d 923 (N.D. Iowa 2007) (“The court finds that the surname
‛Tipton,’ when used ‛in conjunction with’ the SSN ending in the four
digits 0053 and the birth month of December is a means of identification
of a ‛specific individual,’ namely, Larry William Tipton. See 18 U.S.C.
§ 1028(d)(7)(A). The phrase ‛in conjunction with’ in § 1028(d)(7) is a
broad phrase of § 1028(c)(3)(A).”).
Defendant Alexander argues the Yahoo! ID was “the opposite of a means of
identification” because it was an “alias.” It is clear from the statute,
however, that all sorts of identifiers qualify as a “means of
identification” even if they contain no part of a person’s full legal
name. The statute even provides that numbers, such as an “identification
number” or driver’s license serial number, can serve as means of
identification. See 18 U.S.C. § 1 028(d)(7). Defendant’s argument is
similar to one rejected by the Ninth Circuit in United States v. Blixt,
548 F.3d 882, 887-88 (9th Cir. 2008). There, the defendant argued that a
signature was not a “means of identification,” because it was an
indecipherable “series of lines, curves, and squiggles.” Id. The court
rejected that argument on the grounds that those lines, curves, and
squiggles nonetheless had meaning: the “signature, however illegible,
was... nothing more than his name written in a particular way and meant
to identify him, specifically.” Id. The same holds for a Yahoo! ID; no
matter how inscrutable it might be on its face, it nonetheless
“identifjes] a specific individual.” 18 U.S.C. § 1028(d)(7).
Nor is it dispositive that “[a]nyone can sign on to Yahoo!” with any
name or alias as the defense suggests. Should someone do that, then
under the statute, the name or alias used would indeed be a “means of
identification” uniquely identifying him or her, even if the person
attempting to access the e-mail account had no connection to the
account. Nor is it dispositive that a given individual can have more
than one Yahoo! ID. It is clear from the statute that one individual
will normally have many “means of identification;” many people, for
example, have a passport number as well as a Social Security number as
well as a driver’s license number as well as a name, and all of these
are examples of “means of identification” listed in the statutory
definition. Having more than one Yahoo! ID is consistent with that
definition.
//
// V.
GOVERNMENT’S MOTION FOR RECIPROCAL DISCOVERY
A. RULE 16(b)
Defendant has invoked Federal Rule of Criminal Procedure 16(a) in his
motion for discovery. Further, the Government will voluntarily comply
with the requirements of Federal Rule of Criminal Procedure 16(a).
Therefore, Rule 16(b) should presently be determined to be operable as
to the defendant.
The Government, pursuant to Rule 16(b), hereby requests Defendant to
permit the Government to inspect, copy, and photograph any and all
books, papers, documents, photographs, tangible objects, or make copies
of portions thereof, which are within the possession, custody or control
of Defendant and which he intends to introduce as evidence in his
case-in-chief at trial. The Government further requests that it be
permitted to inspect and copy or photograph any results or reports of
physical or mental examinations and of scientific tests or experiments
made in connection with this case, which are in the possession or
control of Defendant, which he intends to introduce as evidence-in-chief
at the trial or which were prepared by a witness whom the defendant
intends to call as a witness. The Government also requests that the
court make such orders as it deems necessary under Rule 1 6(d)(l) and
(2) to insure that the Government receives the discovery to which it is
entitled.
B. RULE 26.2
Federal Rule of Criminal Procedure 26.2 requires the production of prior
statements of all witnesses, except the defendants. The rule thus
provides for the reciprocal production of Jencks statements.
The time frame established by the rule requires the statement to be
provided after the witness has testified, as in the Jencks Act.
Therefore, the Government hereby requests that the defendant be ordered
to supply all prior statements of defense witnesses by a reasonable date
before trial to be set by the Court. This order should include any form
these statements are memorialized in, including but not limited to, tape
recordings, handwritten or typed notes and/or reports.
//
// VI.
CONCLUSION
For the reasons stated above, the Government asks that the Court DENY
Defendant’s motions, except where unopposed, and GRANT the Government’s
motion for reciprocal discovery.
DATED: July 2, 2010
Respectfully submitted,
JOSEPH P. RUSSONIELLO United States Attorney
/S/
RICHARD C. CHENG Assistant U.S. Attorney
None
> This was filed with Judge Patel today.
>
> UNITED STATES OF AMERICA
> Plaintiff
> v.
> GREGORY ALEXANDER,
> Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. CR-09-00719-MHP
> GOVERNMENT’S RESPONSE AND OPPOSITION TO DEFENDANT'S MOTIONS FOR:
> (1) BILL OF PARTICULARS;
> (2) TO COMPEL DISCOVERY; and
> (3) DISMISSAL OF AGGRAVATED IDENTITY CHARGE
> TOGETHER WITH A STATEMENT OF FACTS, MEMORANDUM OF POINTS AND
> AUTHORITIES, AND UNITED STATES’ MOTION FOR:
>
Expatriate the bunch. We don't need anymore third world crooks or
gypsies.
B. Lafferty
Attorney is really very interesting. It reads:
"Messages collected suggest that on at least one occasion, Alexander
accessed Hough’s account at the behest of Susan Polgar, who was at the
time, a Director on the Federation Board."
I note the use of messages plural. No doubt Alexander's counsel will
want to see these messages if she has not already seen them.
Mark Houlsby
So you're implying that you used to need them?
Taylor Kingston
Can you condense all the legalese down to a few bullet points?
On Jul 6, 9:11 pm, "B. Lafferty" <b...@nowhere.com> wrote:
> This was filed with Judge Patel today.
>
> UNITED STATES OF AMERICA
> Plaintiff
> v.
> GREGORY ALEXANDER,
> Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. CR-09-00719-MHP
> GOVERNMENT'S RESPONSE AND OPPOSITION TO DEFENDANT'S MOTIONS FOR:
> (1) BILL OF PARTICULARS;
> (2) TO COMPEL DISCOVERY; and
> (3) DISMISSAL OF AGGRAVATED IDENTITY CHARGE
> TOGETHER WITH A STATEMENT OF FACTS, MEMORANDUM OF POINTS AND
> AUTHORITIES, AND UNITED STATES' MOTION FOR:
>
> JOSEPH P. RUSSONIELLO (CSBN 44332) United States Attorney
> BRIAN J. STRETCH (CSBN 163973) Chief, Criminal Division
> RICHARD C. CHENG (CSBN 135992) Assistant U. S. Attorney
> 150 Almaden Boulevard, 9 Floor
> th
> San Jose, California 95113
> Telephone: (408) 535-5032
> Fax: (408) 535-5066
> e-mail: richard.ch...@usdoj.gov
> Attorneys for Plaintiff
> UNITED STATES DISTRICT COURT
> NORTHERN DISTRICT OF CALIFORNIA
> SAN FRANCISCO DIVISION
> )
> ) (1) RECIPROCAL DISCOVERY
> )
> ) DATE:
> TIME: .
> COMES NOW the plaintiff, UNITED STATES OF AMERICA, by and through its
> counsel, Joseph P. Russoniello, United States Attorney, and Richard C.
> Cheng, Assistant United States Attorney, and hereby files its Response
> and Opposition to Defendants' above-referenced motions.
> //
> // I.
> STATEMENT OF FACTS
> A. The Indictment
> The Indictment charges defendant GREGORY ALEXANDER with thirty-four (34)
> separate counts of intentionally accessing a computer without
> authorization, in violation of 18 U.S.C.
> § 1030(a)(2)(C) and (c)(2)(B)(ii); and one count of aggravated identity
> theft, in violation of 18 U.S.C., § 1028A(a)(1). The Indictment alleges
> that ALEXANDER violated the laws of the United States laws by illegally
> accessing the e-mail account of randallho...@yahoo.com, belonging to
> intrusions ...
>
> read more >>
B. Lafferty
*The US Attorney has a very, very strong case against Alexander on all
counts.
*Despite what Polgar has said about there being no business relationship
between her and Alexander, the US Secret Service apparently has
developed information indicating otherwise.
* The US Attorney apparently has multiple messages suggesting that at
least one (maybe more??) of the hackings alleged to have been done by
Alexander, was done at the request of Ms. Polgar.
Mark Houlsby
> Sure. My take from public documents in the case.
>
> *The US Attorney has a very, very strong case against Alexander on all
> counts.
> *Despite what Polgar has said about there being no business relationship
> between her and Alexander, the US Secret Service apparently has
> developed information indicating otherwise.
> * The US Attorney apparently has multiple messages suggesting that at
> least one (maybe more??) of the hackings alleged to have been done by
> Alexander, was done at the request of Ms. Polgar.
>
On the face of it, Zsuzsa appears to be in trouble. If that's so, then
it's a
shame, but it's far from unexpected.
Several times she failed to heed good advice.
The fact that she was bested by an illiterate fuck like Stan Booz
should
have told her that she's just not cut out for this sort of thing.
She should have stuck to playing chess, which she does pretty well.
If she gets out of this one, she should go back to playing chess, and
preparing
for tournaments and everything which that implies.
She really should do nothing else.
Frankly, she's not smart enough to do anything else.