Greetings from Paris where Amanda and I will be until Nov 3. We arrived on August 18.
This trip, which we booked back in April, was contingent on 1) getting permission from the court or 2) getting early termination of supervised release. As you know, I got the latter so I did not need to seek the former.
For those who have followed this blog, which I hope to continue to update while I Paris, you may be interested in knowing that I am blogging about my time in Paris at:
www.11weeksinparis.com
It occurred to met that this is almost as long as the 13 weeks I spent in Pensacola Federal Prison. Maybe I should have called this blog 13 Weeks in Pensacola instead of The Rabbit Hole. :)
Saturday, August 22, 2009
Monday, August 10, 2009
Restoration of Civil Rights
The other day I received a letter from my probation officer which enclosed the Report and Order Terminating Supervised Release, the official court document officially terminating my supervised release, dated July 16, 2009. This letter also included instructions concerning the restoration of civil rights (both state and federal) that I lost as a felon.
Click here for a copy of the documents I received
One can only restore rights once all the terms of the sentence are completed, including supervised release, fines, restitution, etc. Supervised release was the only remaining term for me since all fines and restitution were paid prior to entering prison. (Note: for many white collar defendants, the restitution is so great -- millions of dollars -- that they have no hope of ever paying it back. As a result, they never complete the term of their sentence and cannot never request restoration of civil rights.)
Interestingly, the request for restoration of rights is considered a civil action, which must be docketed and for which I have to pay the filing fee.... $4 for the first page and $.25 per page afterwards.
The vast majority of rights lost can only be restored by executive pardon. A federal pardon can only come from the US President and apparently restores state rights as well as federal rights. A state pardon only applies to restoring state rights.
Federal rights requiring a federal pardon include:
1. Right to serve on federal jury.
2. Right to obtain retirement annuity benefits (I think this applies to federal employees who commit a crime related to their official functions -- see Public Law 769)
3. Cannot hold union office for 5 years of conviction (applies to labor officials)
The other significant civil right that is lost and can only be restored via federal pardon or application to the Bureau of Alcohol, Tobacco, and Firearms (which however is not accepting applications due to budgetary contraints) concerns the "right to distribute, ship, transport, receive, or possess any type of firearm, ammunition, or exposive materials." Fortunately, I have never owned a gun nor have any interest in owning one but I have described elsewhere that the law considers "possession" to include "constructive" (as wel as "actual") which means that merely knowing where a weapon is located and having access to it constitutes "possession."
Most North Carolina rights appear to be restorable by simply filing the Report and Order Terminating Supervised Release with the local clerk of court. These include:
1. Right to vote.
2. Right to hold public office.
3. Right to obtain and hold certain state or local licenses. This is discretionary (depending on license and offense I suppose)
4. Right to work in an establishment where alcohol beverages are sold.
5. Right to serve as juror.
There are travel limitations to certain foreign countries but these are a function of THOSE countries' embassies or state departments, not US law. At this point, the only ones I am aware of are Canada, England, and Australia.
Click here for a copy of the documents I received
One can only restore rights once all the terms of the sentence are completed, including supervised release, fines, restitution, etc. Supervised release was the only remaining term for me since all fines and restitution were paid prior to entering prison. (Note: for many white collar defendants, the restitution is so great -- millions of dollars -- that they have no hope of ever paying it back. As a result, they never complete the term of their sentence and cannot never request restoration of civil rights.)
Interestingly, the request for restoration of rights is considered a civil action, which must be docketed and for which I have to pay the filing fee.... $4 for the first page and $.25 per page afterwards.
The vast majority of rights lost can only be restored by executive pardon. A federal pardon can only come from the US President and apparently restores state rights as well as federal rights. A state pardon only applies to restoring state rights.
Federal rights requiring a federal pardon include:
1. Right to serve on federal jury.
2. Right to obtain retirement annuity benefits (I think this applies to federal employees who commit a crime related to their official functions -- see Public Law 769)
3. Cannot hold union office for 5 years of conviction (applies to labor officials)
The other significant civil right that is lost and can only be restored via federal pardon or application to the Bureau of Alcohol, Tobacco, and Firearms (which however is not accepting applications due to budgetary contraints) concerns the "right to distribute, ship, transport, receive, or possess any type of firearm, ammunition, or exposive materials." Fortunately, I have never owned a gun nor have any interest in owning one but I have described elsewhere that the law considers "possession" to include "constructive" (as wel as "actual") which means that merely knowing where a weapon is located and having access to it constitutes "possession."
Most North Carolina rights appear to be restorable by simply filing the Report and Order Terminating Supervised Release with the local clerk of court. These include:
1. Right to vote.
2. Right to hold public office.
3. Right to obtain and hold certain state or local licenses. This is discretionary (depending on license and offense I suppose)
4. Right to work in an establishment where alcohol beverages are sold.
5. Right to serve as juror.
There are travel limitations to certain foreign countries but these are a function of THOSE countries' embassies or state departments, not US law. At this point, the only ones I am aware of are Canada, England, and Australia.
Tuesday, July 28, 2009
TV News on my Doorstep
As I mentioned in my previous post, the FBI showed up at my house on Thursday morning July 21, 2005.
By the next day, I had purchased a new computer (other other items) so I could re-connect to my business (a website hosted off-site) and met with my new lawyers at James, McElroy and Diehl to discuss an initial strategy.
Other than my immediate neighbors and lawyers, no one else really knew about the raid on my home. (I don't believe I called my parents until later.)
That was about to change.
I don't remember much about that weekend. I am pretty good at the art of conscious denial (like the guy who jumped off a tall building muttering "so far so good" as he plummetted to the ground). Conscious denial is a legitimate and even healthy coping strategy in which one sets aside the emotions of a traumatic event for a later time when it can be processed under cooler conditions. That doesn't mean I wasn't preoccupied with what happened, just that I was optimistic that things would work out.
Tuesday evening (July 26) changed that somewhat.
About 6p, I got a knock on the door, only to be greeted by a TV news reporter with microphone in hand and a document that he said was the search affidavit that had just been released the day before. I saw a camera woman at the end of the driveway with a news van with full remote equipment installed parked in front of the house.
The reporter was polite and simply asked if I would like to comment on the search. Unfortunately, as much as I would have liked to give him a tour of the house and describe what had happened, my lawyers would have killed me. I politely declined and he walked away telling her to turn off the camera.
But they didn't leave.
Instead, they parked two houses down (which was located most of the way down the cul-de-sac -- you can look it up in Google maps, I don't live there anymore -- click here). As neighbors began coming home from work, they would stop them and ask for comments about the "hacker" that lived in the neighborhood!
My wife was pretty stressed about everything; I actually thought it was rather comical. I don't say that to suggest that I am somehow above all that was going on but it was just so surreal and over-the-top that I couldn't help but laugh.
My neighbor -- a young woman who worked for me -- was upset at what was going on. She found at that there was going to be a story on the 10p news that night which created a problem for me.
My two daughters (18 and 16 at the time) from a previous marriage lived with my ex-wife and her husband across town. None of them knew anything about it and I really didn't want them finding out about it first on the evening news!
I called my ex-wife (with whom I had an amiable relationship) and told her I needed to come over and talk to everyone about some news. Within 30 minutes I was there for a large family gathering.
I simply explained about the FBI search and ongoing investigation and that there was going to be a story about it on the evening news. I told them I couldn't talk about the facts of the case, unfortunately, but that I didn't think I had done anything illegal but if it turns out that I had, then I will take responsibility for it.
My daughters (especially my oldest daughter Christina) were very curious about the facts but I really couldn't tell them much. Of course it was all very confusing and they had a hard time grasping it all but that was probably a blessing.
One thing I learned from this is that, to your children, you are still daddy. Later my daughter asked what a felon was. Exactly, I thought. What is a felon? It is just a word. That word may have significance or meaning to some people, but to my daughter it was meaningless. To her, I was just her dad. I was defined by her experience with me, not some label the government was seeking to define me by. Recognizing that provided a huge dose of perspective.
I left before the new broadcast came on. The video is no longer posted on the internet but the print story:
No Charges Filed Yet Against South Charlotte Hacker
The story deserves several comments:
1. The title already presumes my guilt. I am referred to as a "hacker" and the word "yet" is ominous in its implication.
2. I already referenced in my previous post the comment about hacking "thousands" of times and obtaining "confidential" information. The truth is I used the login of existing members to access the member directory. I logged in 11 times (that is what the indictment says) and obtained the contact information for about 80,000 doctors (there were about 120,000 in the member directory... I didn't get them all). The information was ordinary name, address, phone, fax, email, and professional facts... not what most people would consider confidential. In fact, nothing I collected is subject to copyright protection... it is not information that can be "owned" by anyone. The government later admitted this although they continued to portray my conduct as "theft" in their sentencing arguments (which the judge did not buy into). The news reference is indicative of a media bias to describe conduct in the worst possible light.
3. A later sentence says I "attacked" the site from "Jan to May" accessing "hundreds" of files. Again the sensational language. Normally an "attack" is something that does damage. I simply logged into their system multiple times, causing no harm to either the computers or the data. How does this qualify as an "attack?" I accessed the site in Jan and in May on separate occasions, not "Jan to May" (implying this was continuous activity over 5 months). I have no idea what the reference to "hundreds" of files means. This is a typical online database directory in which you can enter a search for records. I made thousands of searches in order to look up the contact information on individual doctors. I wonder if the word "file" was meant to complement the word "confidential" in the earlier paragraph. When someone thinks of confidential doctor files, they think of medical or financial data, not ordinary contact information that could be obtained through other public sources.
4. The article then suggests my neighbor Chuck across the street was "looking for answers." Huh? Chuck was looking for nothing; he just answered their questions. How silly -- At least he said I "conduct myself well in the neighborhood" :)
I looked through my emails and found the following contemporaneous comments I sent to my lawyers that same night:
I hope to continue to replay some of the early stages of my case which I haven't talked about previously. I think it is important that people who know me only through my prison experience understand what all took place before that.
By the next day, I had purchased a new computer (other other items) so I could re-connect to my business (a website hosted off-site) and met with my new lawyers at James, McElroy and Diehl to discuss an initial strategy.
Other than my immediate neighbors and lawyers, no one else really knew about the raid on my home. (I don't believe I called my parents until later.)
That was about to change.
I don't remember much about that weekend. I am pretty good at the art of conscious denial (like the guy who jumped off a tall building muttering "so far so good" as he plummetted to the ground). Conscious denial is a legitimate and even healthy coping strategy in which one sets aside the emotions of a traumatic event for a later time when it can be processed under cooler conditions. That doesn't mean I wasn't preoccupied with what happened, just that I was optimistic that things would work out.
Tuesday evening (July 26) changed that somewhat.
About 6p, I got a knock on the door, only to be greeted by a TV news reporter with microphone in hand and a document that he said was the search affidavit that had just been released the day before. I saw a camera woman at the end of the driveway with a news van with full remote equipment installed parked in front of the house.
The reporter was polite and simply asked if I would like to comment on the search. Unfortunately, as much as I would have liked to give him a tour of the house and describe what had happened, my lawyers would have killed me. I politely declined and he walked away telling her to turn off the camera.
But they didn't leave.
Instead, they parked two houses down (which was located most of the way down the cul-de-sac -- you can look it up in Google maps, I don't live there anymore -- click here). As neighbors began coming home from work, they would stop them and ask for comments about the "hacker" that lived in the neighborhood!
My wife was pretty stressed about everything; I actually thought it was rather comical. I don't say that to suggest that I am somehow above all that was going on but it was just so surreal and over-the-top that I couldn't help but laugh.
My neighbor -- a young woman who worked for me -- was upset at what was going on. She found at that there was going to be a story on the 10p news that night which created a problem for me.
My two daughters (18 and 16 at the time) from a previous marriage lived with my ex-wife and her husband across town. None of them knew anything about it and I really didn't want them finding out about it first on the evening news!
I called my ex-wife (with whom I had an amiable relationship) and told her I needed to come over and talk to everyone about some news. Within 30 minutes I was there for a large family gathering.
I simply explained about the FBI search and ongoing investigation and that there was going to be a story about it on the evening news. I told them I couldn't talk about the facts of the case, unfortunately, but that I didn't think I had done anything illegal but if it turns out that I had, then I will take responsibility for it.
My daughters (especially my oldest daughter Christina) were very curious about the facts but I really couldn't tell them much. Of course it was all very confusing and they had a hard time grasping it all but that was probably a blessing.
One thing I learned from this is that, to your children, you are still daddy. Later my daughter asked what a felon was. Exactly, I thought. What is a felon? It is just a word. That word may have significance or meaning to some people, but to my daughter it was meaningless. To her, I was just her dad. I was defined by her experience with me, not some label the government was seeking to define me by. Recognizing that provided a huge dose of perspective.
I left before the new broadcast came on. The video is no longer posted on the internet but the print story:
No Charges Filed Yet Against South Charlotte Hacker
The story deserves several comments:
1. The title already presumes my guilt. I am referred to as a "hacker" and the word "yet" is ominous in its implication.
2. I already referenced in my previous post the comment about hacking "thousands" of times and obtaining "confidential" information. The truth is I used the login of existing members to access the member directory. I logged in 11 times (that is what the indictment says) and obtained the contact information for about 80,000 doctors (there were about 120,000 in the member directory... I didn't get them all). The information was ordinary name, address, phone, fax, email, and professional facts... not what most people would consider confidential. In fact, nothing I collected is subject to copyright protection... it is not information that can be "owned" by anyone. The government later admitted this although they continued to portray my conduct as "theft" in their sentencing arguments (which the judge did not buy into). The news reference is indicative of a media bias to describe conduct in the worst possible light.
3. A later sentence says I "attacked" the site from "Jan to May" accessing "hundreds" of files. Again the sensational language. Normally an "attack" is something that does damage. I simply logged into their system multiple times, causing no harm to either the computers or the data. How does this qualify as an "attack?" I accessed the site in Jan and in May on separate occasions, not "Jan to May" (implying this was continuous activity over 5 months). I have no idea what the reference to "hundreds" of files means. This is a typical online database directory in which you can enter a search for records. I made thousands of searches in order to look up the contact information on individual doctors. I wonder if the word "file" was meant to complement the word "confidential" in the earlier paragraph. When someone thinks of confidential doctor files, they think of medical or financial data, not ordinary contact information that could be obtained through other public sources.
4. The article then suggests my neighbor Chuck across the street was "looking for answers." Huh? Chuck was looking for nothing; he just answered their questions. How silly -- At least he said I "conduct myself well in the neighborhood" :)
I looked through my emails and found the following contemporaneous comments I sent to my lawyers that same night:
July 26, 2005 10:22p
FYI,
I already told Ed earlier this evening, but an ABC local TV news crew showed up at my house about 7pm. I politely declined to comment but they ran a brief story on Channel 64 ActionNews (Cable Channel 10) at 10pm. They interviewed neighbors and the TV truck hung around all evening a couple houses down.
Once I learned that they were going to break the news on TV, I visited my children (and ex-wife and her husband) at 9pm to give them a “heads up” so they didn’t have to hear it from someone else first. They took it fine as I expected so I feel good about things.
Bill
July 27, 2005, 12:09a
There was a more extended story at 11p. It irks me that they get to frame my actions in the worst possible light -- “hack”, “attack”, download “records” or “confidential” information – and we don’t get to reply.
I don’t care about public response because most people don’t care and my friends won’t care, but it is still annoying.
Bill
I hope to continue to replay some of the early stages of my case which I haven't talked about previously. I think it is important that people who know me only through my prison experience understand what all took place before that.
Tuesday, July 21, 2009
4 years ago today...it all began
Today -- July 21 -- is the 4 year anniversary of when it all began. Now that I am off supervised release, I can talk more freely about the facts of my case.
At 6a on a Thu morning, I was asleep in bed upstairs (see picture of house below) when I heard a loud male voice: "Mr. Bailey, this is the FBI. Show yourself at the top of the stairs."
I was groggy, not quite sure of what I heard, when a few moments later, I heard the same voice: "Mr. Bailey, this is the FBI. Show yourself at the top of the stairs."
My wife was not next to me, having awoken 30 minutes earlier to work in her office downstairs. I rolled out of bed and walked to the door to the landing at the top of the stairs. The stairs begin in the downstairs foyer at the entrance of the house and rise toward a landing in the back of the house on the second floor. The bedroom is immediately to the right.
Before stepping onto the landing, I realized that I was not wearing ANY clothes. I shouted down "I'm not wearing anything" to which the agent replied "I don't care!"
I stepped out of my bedroom at the top of the stairs and saw a group of people in the foyer below including my wife and 2 other females, one of whom immediately turned her head away.
I immediately began to step back into my room only to be instructed to keep my hands clear. I stepped back onto the landing, turned around and placed my hands up against the wall. I recall yelling to my wife that someone must be loose in the neighborhood and the FBI is going home to home. I then asked if they had a search warrant. The man who appeared to be the lead agent (I later found out that one of the women was actually the signature on the warrant, which I think officially makes it her "search") said he had a warrant, then climbed the stairs, escorted me into the bedroom and then closet so I could put some shorts and a t-shirt on. He also asked if there were any guns or weapons in the house which there weren't.
By the time I stepped back out of my bedroom, several other agents had ascended the stairs and entered my office to disconnect the computers. At this point, I had a sneaky suspicion this must have something to do with my business activities but not sure exactly WHAT. Nor could I imagine what line I could have crossed that would be so significant that it would interest the FBI. Surely they have better things to do, I thought.
As it turns out, there were 6 FBI agents (4 men, 2 women) and a deputy sheriff (who was the only one in uniform, which I think was his primary purpose... to look official). I was surprised that, other than the deputy sheriff who looked in his 50s, all of the agents were young... maybe 25-35. Several plain cars plus the sheriff vehicle were parked on the road in front of my house.
I was handed a copy of the search warrant (note: the download contains not only the warrant but the receipt of items seized as well as the affidavit supporting the search warrant, which was sealed until the following Monday, but at the time of the search the only document I saw was the search warrant itself which was only three pages long pp. 5-7), and escorted down the stairs, where I noticed my wife seated in the living room beginning to be questioned by the agent who she later said had questioned her very aggressively. My wife had been in the dining room/office when the cars drove up right at 6a (the earliest the search warrant permitted them to execute the warrant). She opened the door before they reached it, which explained why I never heard a knock or door bell.
I was taken to the sun room in the back of the house where I had an opportunity to review the search warrant. At that point, I kind of knew what was up, but I was incredulous that the FBI was interested in something so seemingly petty. I was convinced there had to be more than met the eye here. Surely, in a world of terrorism, child pornography, credit card fraud, identity theft, computer viruses and spam, the FBI had better things to do than go after someone who had made a copy of the membership directory of a medical association. Some of the references in the search warrant were to companies or people I had no knowledge of. Perhaps, I thought, this is all part of a larger investigation and once they realize that all I did was make a copy of a membership directory, then they will drop it.
In any case, after a few minutes, the female agent in charge (an attractive bleach blond with shortish-cropped hair and more piercings than I would expect for an FBI agent) appeared. She asked if I was Bill Bailey which I confirmed. She then asked if I was the owner of dr-411.com, which I also confirmed. Next, she asked if I had ever heard of the American College of Physicians. At this point, I did a very smart thing. I said, "I'm not going to answer any more questions until I talk to my lawyer."
(Note: The American College of Physicians http://www.acponline.org/ is the largest medical specialty -- internal medicine --organization in the country, second only to the American Medical Association among all medical associations. It is located in Philadelphia which is where the investigation, and therefore, jurisdiction was located.)
Immediately, she got up and left the room and the other female agent stayed and "babysat" me while the search of my home continued. The warrant was a search warrant, not an arrest warrant, so I was not technically being detained, although it felt like it. I later learned that I was actually free to go as I wished at any time but it was clear they preferred I stay there.
The agent who was monitoring me was very pleasant. She said she normally works on the child pornography team but they needed an extra body for this search. I don't recall the whole conversation but I recall mentioning that, based on the search warrant, the facts they were implying didn't seem like that big of a deal. She said that "computer intrusions" were the FBI's 3rd highest priority, after terrorism and child pornography. Hmmm... so what I did was a "computer intrusion?"
I also expressed concern that seizing my computers was going to create a serious hardship for my business and asked how long the FBI would need to keep them. She said that they would turn them around as fast as possible. She even called Matthew Fine (the special agent in Philadelphia in charge of the case) and reported that he said that I would have the computers back within 10 days. Yeah, right.
During this time, they continued to question my wife in the living room. She later said she was very intimidated by the line of questioning and didn't realize that she could have declined to answer at any time. Not that she had any specific knowledge of any crime I might have committed, but they tried to make her feel stupid for not knowing certain things about my business practices.
I asked if I could call my lawyer which they allowed (not that they had any legal right to disallow it). I stepped out into the driveway off the kitchen on the left side of the house. One of the male agents followed me but maintained his distance. I remember commenting to him that the deputy sherrif's car out front for all the neighbors to see as the left for work was a really nice touch.
The only law firm I had a relationship with was Wishart, Norris, Henninger, and Pittman who handle my business law stuff.... articles of incorporation, annual reports, advice on business structure and asset protection, etc. I called Eric and Gary. It is amazing how quickly a law firm will clear their schedule for an immediate meeing when you tell them the FBI is currently at your house seizing all your stuff. They said they would get back to me right away. Shortly thereafter, they called back having scheduled a conference call with two lawyers at James, McElroy, and Diehl at I believe 10:30 or 11:00 that morning.
I went back into the house to see what was going on. I couldn't believe all the stuff they were bringing downstairs. The list of all the items seized is on page 2 of the Search Warrant and Affidavit document, which included 4 or 5 computers as well as my router and cable modem and miscellaneous disks and documents. While I was standing in the kitchen, I saw my cell phone and protested that I needed that for my business. They relented and simply recorded the list of recent calls and let me keep it.
They also were seizing tax and other financial documents which I protested and, as it turns out, they had to return later since they were not items included in the search warrant.
At one point, I had a testy exchange with the apparent spokesman for the group (the same agent who woke me up). I told him I thought the search was getting a little too intrusive. He replied that I was lucky they were not cutting open my walls (!), which I thought was an odd thing to say. I guess he was trying to communicate that I don't know HOW intrusive they can actually be.
I continued to question the breadth and intrusiveness of the search. He said "I thought you said you didn't want to talk" (referring to my earlier statement in declining to answer questions).
I replied that I didn't say I didn't want to talk, but that I didn't want to answer any of their questions. However, I had questions for them. After all, they were in my house, taking my stuff, and I hadn't even been told why.
He replied that I was accused of a crime. I said "What crime? No one has told me about any crime. You just showed up at my house with a search warrant to take my stuff."
He replied that the crime was listed on the search warrant. I said no it wasn't. They retrieved the warrant from the counter. It was only 2 pages and, sure enough, the warrant did not list any statute I was accused of violating. He glanced at the female agent in charge of the search (the one who was responsible for obtaining the warrant) and she simply looked back. At that point, I knew they had screwed up... search warrants are required to list the crime that the search is investigating. And my warrant showed nothing. (You can read it yourself on one of the search warrant links above).
Finally, as they wrapped things up that morning somewhere around 9a I believe. The receipt lists either 7:15 or 9:15, I can't tell... they may have timestamped it when they opened the receipt or when they completed the search.
They asked me to hold a copy of the receipt and took a photo of me, which in hindsight was stupid... I am under no requirement to permit that. In fact, I was under no requirement to even be present. Just another example of how agents use the intimidation of their presence to coerce people into doing things they are not required to do. Since I was not under arrest, they were not required to read me my rights. They can simply question me without telling me that I don't have to talk to them. I knew I didn't have to talk to them (and didn't) but my wife didn't and was traumatized by the whole experience.
As special agent Linda Engstrom (the one in charge of the search warrant) left, she handed me a small sheet of paper with USC 1030(a)(2) written on it. This is the statute I was accused of violating that she forgot to include on the search warrant. I guess she was hoping this would remedy her oversight.
After they left and I had an opportunity to catch my breath and assess what had just happened, I met my lawyers at their office in preparation for the conference call with the lawyers from James, McElroy and Diehl. Fred Williams and Ed Hinson from JMD would become my primary criminal defense lawyers for the next 9 months until the prosecutor in Philadelphia decided to indict me in April 2006 at which time I needed to retain a lawyer in Philadelphia.
Once I explained the facts of my case, it was clear to them what the criminal violation was although they were not familiar with any case with facts this minor ever being prosecuted.
Basically, federal law says that 1) unauthorized access of a 2) protected computer to 3) obtain information is a misdemeanor. If it is done for 4) commercial advantage, it is a felony.
At a later time, I will go into more detail about the vagaries of this statute and how the breadth of its language gives significant discretion to prosecutors (e.g. it is not clear what constitutes "unauthorized access"). Suffice it to say for now that the PURPOSE of the statute was to protect private information on private networks, not to protect otherwise public information on websites. And, in fact, no case had ever been prosecuted under this statute unless one of two things were true:
1. Damage to computer hardware or deletion of valuable data or programs (this typical scenario is a disgruntled former employee)
2. Theft of private information
In my case, I gained access to the membership directory of the American College of Physicians (ACP) which they had intended to be accessible only by their members. The information in the membership directory is ordinary contact and resume information. Since the directory was accessible by over 120K members, it obviously did not contain private information.
The login mechansim used by the ACP was very trivial making it easy to login to the system using one of the member's logins. I then wrote a program that "harvested" most of the membership information, which I intended to incorporate into the physician list that I sold on my website.
Because this conduct involved
1. Unauthorized access (i.e. using someone else's login)
2. Protected computer (any website is considered a protected computer)
3. Obtaining information (member contact and resume data)
4. Profit motive
I was in felony violation of 1030(a)(2) as read literally.
However, in order to get a sentence beyond probation (the FBI will not prosecute cases that they do not expect to get prison time out of), they have to demonstrate damages.
In my case, no damage was done to the ACP website and they were not harmed economically because they do not not sell the data so I was not competing with them for customers. Indeed it is hard to see how any tangible damage was done.
So, at this point in my converstation with my lawyers, it was clear that my conduct technically violated the law. But it was equally clear that no damage had been done and since they needed to at least achieve a threshold of $5000 in damages to realistically go forward with the case, I felt pretty good.
(For those familiar with US Sentencing Guidelines, the base offense in my case is 6 pts with 2 pts added for "special skill" however I could earn 2 pts for acceptance of responsibility. This would leave me at 6 pts, which is 0-6 months. In my case, it would virtually be a slam dunk probation sentence.)
Furthermore, I had reason to believe that the FBI may have thought that I had collected MORE than just ordinary contact information. According to this story on a local TV website (I'll tell that story later):
As a result of this story, however, I thought the govt was accusing me of something more serious, such as accessing financial data. I knew I had not done that (and in fact wouldn't even know HOW to do that, as it is not available to members logging into the website, which is the only access I had). If so, then when the govt examined my computers and realized that I had only obtained member directory information, then maybe they would decide not to pursue the case. (This obviously turned out not to be the case.)
Our initial strategy however was to get the search thrown out and have my computers returned.
The fourth amendment as it applies to computer searches is very awkward. In normal searches, you perform the search and seize the items. In computer searches, you seize the items and then perform the search of the computers for the incriminating data. In other words, the search/seizure steps are reversed for computer searches.
Search warrants typically expire after 10 days. Our claim was that the search warrant only allowed the search for and seizure of the computers. It does not authorize a subsequent search of the computers and in any case that search must be done within the 10 days allowed by the warrant. Othewise, the govt must obtain another warrant describing what is to be searched for on the computers.
However, to implement this strategy, we first had to wait 10 days to see if they completed the search within the terms of the warrant.
I agreed to meet with Fred and Ed on Friday morning to go over my case in more detail.
That afternoon I needed to take steps to get myself back online. First I went to Time Warner Cable to get a new cable modem. How do you explain that you need a new modem because the FBI took your other one??? I simply said that I had temporarily "misplaced" my modem and needed another. She didn't ask questions. Whew!
Then I went to CompUSA and bought the cheapest computer I could find, thinking I just needed something to get me by until my other computers were returned (which didn't occur until the first week of September, some 6-7 weeks later).
I returned home and spent the rest of the evening setting everything up... network connections, installing software, etc. Fortunately, I had all the logins for my various accounts. My business website was hosted offsite and continued to run throughout the day without interruption so basically except for the aggravation and the temporary loss of many of my programs and computer records, I was not dramatically affected business-wise.
At this point in the process, I suspect I was like most white-collar defendants. I was in denial and I was in a fighting mood. It is a MASSIVE psychological adjustment to envision the possibility of prison for conduct I didn't even think was illegal. In some ways, it is like beginning the 5 stages of grief:
1. Denial
2. Anger
3. Bargaining
4. Depression
5. Acceptance
I can clearly identify with each of those stages in my experience and certainly denial and anger covered the first 10-12 months.
On this first day, I couldn't believe this was happening to me (denial) and I couldn't believe someone would be so petty and obtuse as to actually try to destroy my life over this (anger). It seemed to me that a simple phone call would have been sufficient :)
I had so, so much to learn about this process I have labelled "The Rabbit Hole."
Most of this blog has documented the END of my journey -- prison -- which corresponds to the "Acceptance" phase. I haven't documented the earlier stages I went through which in some ways are more bizarre than the prison stage.
I hope -- when I can find time! -- to further document these pre-prison stages. You will be shocked -- as I was -- to find out how the system really works.
At 6a on a Thu morning, I was asleep in bed upstairs (see picture of house below) when I heard a loud male voice: "Mr. Bailey, this is the FBI. Show yourself at the top of the stairs."
I was groggy, not quite sure of what I heard, when a few moments later, I heard the same voice: "Mr. Bailey, this is the FBI. Show yourself at the top of the stairs."
My wife was not next to me, having awoken 30 minutes earlier to work in her office downstairs. I rolled out of bed and walked to the door to the landing at the top of the stairs. The stairs begin in the downstairs foyer at the entrance of the house and rise toward a landing in the back of the house on the second floor. The bedroom is immediately to the right.
Before stepping onto the landing, I realized that I was not wearing ANY clothes. I shouted down "I'm not wearing anything" to which the agent replied "I don't care!"I stepped out of my bedroom at the top of the stairs and saw a group of people in the foyer below including my wife and 2 other females, one of whom immediately turned her head away.
I immediately began to step back into my room only to be instructed to keep my hands clear. I stepped back onto the landing, turned around and placed my hands up against the wall. I recall yelling to my wife that someone must be loose in the neighborhood and the FBI is going home to home. I then asked if they had a search warrant. The man who appeared to be the lead agent (I later found out that one of the women was actually the signature on the warrant, which I think officially makes it her "search") said he had a warrant, then climbed the stairs, escorted me into the bedroom and then closet so I could put some shorts and a t-shirt on. He also asked if there were any guns or weapons in the house which there weren't.
By the time I stepped back out of my bedroom, several other agents had ascended the stairs and entered my office to disconnect the computers. At this point, I had a sneaky suspicion this must have something to do with my business activities but not sure exactly WHAT. Nor could I imagine what line I could have crossed that would be so significant that it would interest the FBI. Surely they have better things to do, I thought.
As it turns out, there were 6 FBI agents (4 men, 2 women) and a deputy sheriff (who was the only one in uniform, which I think was his primary purpose... to look official). I was surprised that, other than the deputy sheriff who looked in his 50s, all of the agents were young... maybe 25-35. Several plain cars plus the sheriff vehicle were parked on the road in front of my house.
I was handed a copy of the search warrant (note: the download contains not only the warrant but the receipt of items seized as well as the affidavit supporting the search warrant, which was sealed until the following Monday, but at the time of the search the only document I saw was the search warrant itself which was only three pages long pp. 5-7), and escorted down the stairs, where I noticed my wife seated in the living room beginning to be questioned by the agent who she later said had questioned her very aggressively. My wife had been in the dining room/office when the cars drove up right at 6a (the earliest the search warrant permitted them to execute the warrant). She opened the door before they reached it, which explained why I never heard a knock or door bell.
I was taken to the sun room in the back of the house where I had an opportunity to review the search warrant. At that point, I kind of knew what was up, but I was incredulous that the FBI was interested in something so seemingly petty. I was convinced there had to be more than met the eye here. Surely, in a world of terrorism, child pornography, credit card fraud, identity theft, computer viruses and spam, the FBI had better things to do than go after someone who had made a copy of the membership directory of a medical association. Some of the references in the search warrant were to companies or people I had no knowledge of. Perhaps, I thought, this is all part of a larger investigation and once they realize that all I did was make a copy of a membership directory, then they will drop it.
In any case, after a few minutes, the female agent in charge (an attractive bleach blond with shortish-cropped hair and more piercings than I would expect for an FBI agent) appeared. She asked if I was Bill Bailey which I confirmed. She then asked if I was the owner of dr-411.com, which I also confirmed. Next, she asked if I had ever heard of the American College of Physicians. At this point, I did a very smart thing. I said, "I'm not going to answer any more questions until I talk to my lawyer."
(Note: The American College of Physicians http://www.acponline.org/ is the largest medical specialty -- internal medicine --organization in the country, second only to the American Medical Association among all medical associations. It is located in Philadelphia which is where the investigation, and therefore, jurisdiction was located.)
Immediately, she got up and left the room and the other female agent stayed and "babysat" me while the search of my home continued. The warrant was a search warrant, not an arrest warrant, so I was not technically being detained, although it felt like it. I later learned that I was actually free to go as I wished at any time but it was clear they preferred I stay there.
The agent who was monitoring me was very pleasant. She said she normally works on the child pornography team but they needed an extra body for this search. I don't recall the whole conversation but I recall mentioning that, based on the search warrant, the facts they were implying didn't seem like that big of a deal. She said that "computer intrusions" were the FBI's 3rd highest priority, after terrorism and child pornography. Hmmm... so what I did was a "computer intrusion?"
I also expressed concern that seizing my computers was going to create a serious hardship for my business and asked how long the FBI would need to keep them. She said that they would turn them around as fast as possible. She even called Matthew Fine (the special agent in Philadelphia in charge of the case) and reported that he said that I would have the computers back within 10 days. Yeah, right.
During this time, they continued to question my wife in the living room. She later said she was very intimidated by the line of questioning and didn't realize that she could have declined to answer at any time. Not that she had any specific knowledge of any crime I might have committed, but they tried to make her feel stupid for not knowing certain things about my business practices.
I asked if I could call my lawyer which they allowed (not that they had any legal right to disallow it). I stepped out into the driveway off the kitchen on the left side of the house. One of the male agents followed me but maintained his distance. I remember commenting to him that the deputy sherrif's car out front for all the neighbors to see as the left for work was a really nice touch.
The only law firm I had a relationship with was Wishart, Norris, Henninger, and Pittman who handle my business law stuff.... articles of incorporation, annual reports, advice on business structure and asset protection, etc. I called Eric and Gary. It is amazing how quickly a law firm will clear their schedule for an immediate meeing when you tell them the FBI is currently at your house seizing all your stuff. They said they would get back to me right away. Shortly thereafter, they called back having scheduled a conference call with two lawyers at James, McElroy, and Diehl at I believe 10:30 or 11:00 that morning.
I went back into the house to see what was going on. I couldn't believe all the stuff they were bringing downstairs. The list of all the items seized is on page 2 of the Search Warrant and Affidavit document, which included 4 or 5 computers as well as my router and cable modem and miscellaneous disks and documents. While I was standing in the kitchen, I saw my cell phone and protested that I needed that for my business. They relented and simply recorded the list of recent calls and let me keep it.
They also were seizing tax and other financial documents which I protested and, as it turns out, they had to return later since they were not items included in the search warrant.
At one point, I had a testy exchange with the apparent spokesman for the group (the same agent who woke me up). I told him I thought the search was getting a little too intrusive. He replied that I was lucky they were not cutting open my walls (!), which I thought was an odd thing to say. I guess he was trying to communicate that I don't know HOW intrusive they can actually be.
I continued to question the breadth and intrusiveness of the search. He said "I thought you said you didn't want to talk" (referring to my earlier statement in declining to answer questions).
I replied that I didn't say I didn't want to talk, but that I didn't want to answer any of their questions. However, I had questions for them. After all, they were in my house, taking my stuff, and I hadn't even been told why.
He replied that I was accused of a crime. I said "What crime? No one has told me about any crime. You just showed up at my house with a search warrant to take my stuff."
He replied that the crime was listed on the search warrant. I said no it wasn't. They retrieved the warrant from the counter. It was only 2 pages and, sure enough, the warrant did not list any statute I was accused of violating. He glanced at the female agent in charge of the search (the one who was responsible for obtaining the warrant) and she simply looked back. At that point, I knew they had screwed up... search warrants are required to list the crime that the search is investigating. And my warrant showed nothing. (You can read it yourself on one of the search warrant links above).
Finally, as they wrapped things up that morning somewhere around 9a I believe. The receipt lists either 7:15 or 9:15, I can't tell... they may have timestamped it when they opened the receipt or when they completed the search.
They asked me to hold a copy of the receipt and took a photo of me, which in hindsight was stupid... I am under no requirement to permit that. In fact, I was under no requirement to even be present. Just another example of how agents use the intimidation of their presence to coerce people into doing things they are not required to do. Since I was not under arrest, they were not required to read me my rights. They can simply question me without telling me that I don't have to talk to them. I knew I didn't have to talk to them (and didn't) but my wife didn't and was traumatized by the whole experience.
As special agent Linda Engstrom (the one in charge of the search warrant) left, she handed me a small sheet of paper with USC 1030(a)(2) written on it. This is the statute I was accused of violating that she forgot to include on the search warrant. I guess she was hoping this would remedy her oversight.
After they left and I had an opportunity to catch my breath and assess what had just happened, I met my lawyers at their office in preparation for the conference call with the lawyers from James, McElroy and Diehl. Fred Williams and Ed Hinson from JMD would become my primary criminal defense lawyers for the next 9 months until the prosecutor in Philadelphia decided to indict me in April 2006 at which time I needed to retain a lawyer in Philadelphia.
Once I explained the facts of my case, it was clear to them what the criminal violation was although they were not familiar with any case with facts this minor ever being prosecuted.
Basically, federal law says that 1) unauthorized access of a 2) protected computer to 3) obtain information is a misdemeanor. If it is done for 4) commercial advantage, it is a felony.
At a later time, I will go into more detail about the vagaries of this statute and how the breadth of its language gives significant discretion to prosecutors (e.g. it is not clear what constitutes "unauthorized access"). Suffice it to say for now that the PURPOSE of the statute was to protect private information on private networks, not to protect otherwise public information on websites. And, in fact, no case had ever been prosecuted under this statute unless one of two things were true:
1. Damage to computer hardware or deletion of valuable data or programs (this typical scenario is a disgruntled former employee)
2. Theft of private information
In my case, I gained access to the membership directory of the American College of Physicians (ACP) which they had intended to be accessible only by their members. The information in the membership directory is ordinary contact and resume information. Since the directory was accessible by over 120K members, it obviously did not contain private information.
The login mechansim used by the ACP was very trivial making it easy to login to the system using one of the member's logins. I then wrote a program that "harvested" most of the membership information, which I intended to incorporate into the physician list that I sold on my website.
Because this conduct involved
1. Unauthorized access (i.e. using someone else's login)
2. Protected computer (any website is considered a protected computer)
3. Obtaining information (member contact and resume data)
4. Profit motive
I was in felony violation of 1030(a)(2) as read literally.
However, in order to get a sentence beyond probation (the FBI will not prosecute cases that they do not expect to get prison time out of), they have to demonstrate damages.
In my case, no damage was done to the ACP website and they were not harmed economically because they do not not sell the data so I was not competing with them for customers. Indeed it is hard to see how any tangible damage was done.
So, at this point in my converstation with my lawyers, it was clear that my conduct technically violated the law. But it was equally clear that no damage had been done and since they needed to at least achieve a threshold of $5000 in damages to realistically go forward with the case, I felt pretty good.
(For those familiar with US Sentencing Guidelines, the base offense in my case is 6 pts with 2 pts added for "special skill" however I could earn 2 pts for acceptance of responsibility. This would leave me at 6 pts, which is 0-6 months. In my case, it would virtually be a slam dunk probation sentence.)
Furthermore, I had reason to believe that the FBI may have thought that I had collected MORE than just ordinary contact information. According to this story on a local TV website (I'll tell that story later):
"The government claims Bailey hacked into the American College of Physicians Web site thousands of times to access records and downloading files with confidential information on doctors."Ignoring the fact that I did not "hack" into the website "thousands" of times, I don't know about you, but I don't think of name, address, phone, fax, email, medical schools, graduation year, and medical specialties as "confidential information." (It is because of the tabloid nature in which my case was reported in the media that I no longer trust the way crimes are reported in the press... they are always described in the most damning language designed to generate the most negative inferences.)
As a result of this story, however, I thought the govt was accusing me of something more serious, such as accessing financial data. I knew I had not done that (and in fact wouldn't even know HOW to do that, as it is not available to members logging into the website, which is the only access I had). If so, then when the govt examined my computers and realized that I had only obtained member directory information, then maybe they would decide not to pursue the case. (This obviously turned out not to be the case.)
Our initial strategy however was to get the search thrown out and have my computers returned.
The fourth amendment as it applies to computer searches is very awkward. In normal searches, you perform the search and seize the items. In computer searches, you seize the items and then perform the search of the computers for the incriminating data. In other words, the search/seizure steps are reversed for computer searches.
Search warrants typically expire after 10 days. Our claim was that the search warrant only allowed the search for and seizure of the computers. It does not authorize a subsequent search of the computers and in any case that search must be done within the 10 days allowed by the warrant. Othewise, the govt must obtain another warrant describing what is to be searched for on the computers.
However, to implement this strategy, we first had to wait 10 days to see if they completed the search within the terms of the warrant.
I agreed to meet with Fred and Ed on Friday morning to go over my case in more detail.
That afternoon I needed to take steps to get myself back online. First I went to Time Warner Cable to get a new cable modem. How do you explain that you need a new modem because the FBI took your other one??? I simply said that I had temporarily "misplaced" my modem and needed another. She didn't ask questions. Whew!
Then I went to CompUSA and bought the cheapest computer I could find, thinking I just needed something to get me by until my other computers were returned (which didn't occur until the first week of September, some 6-7 weeks later).
I returned home and spent the rest of the evening setting everything up... network connections, installing software, etc. Fortunately, I had all the logins for my various accounts. My business website was hosted offsite and continued to run throughout the day without interruption so basically except for the aggravation and the temporary loss of many of my programs and computer records, I was not dramatically affected business-wise.
At this point in the process, I suspect I was like most white-collar defendants. I was in denial and I was in a fighting mood. It is a MASSIVE psychological adjustment to envision the possibility of prison for conduct I didn't even think was illegal. In some ways, it is like beginning the 5 stages of grief:
1. Denial
2. Anger
3. Bargaining
4. Depression
5. Acceptance
I can clearly identify with each of those stages in my experience and certainly denial and anger covered the first 10-12 months.
On this first day, I couldn't believe this was happening to me (denial) and I couldn't believe someone would be so petty and obtuse as to actually try to destroy my life over this (anger). It seemed to me that a simple phone call would have been sufficient :)
I had so, so much to learn about this process I have labelled "The Rabbit Hole."
Most of this blog has documented the END of my journey -- prison -- which corresponds to the "Acceptance" phase. I haven't documented the earlier stages I went through which in some ways are more bizarre than the prison stage.
I hope -- when I can find time! -- to further document these pre-prison stages. You will be shocked -- as I was -- to find out how the system really works.
Friday, July 17, 2009
Supervised Release Terminated Early
I received a welcome voicemail from my PO this morning while on the golf course -- Judge Whitney had granted their request for early termination of my supervised release!
For those who read this blog, you will know I was sentenced to 3 years supervised release. As allowed by law, I sought to have it terminated after one year but was denied.
The prosecutor in Philadelphia was unwilling to go along with any request by the probation office for early termination (in Philadelphia, you must serve 50% before they will consider it). Fortunately, they agreed to transfer jurisdiction to Charlotte (where you must serve 2/3), where the Probation Office has been managing my supervised release. By transferring jurisdiction to Charlotte, the Philadelphia prosecutor no longer had any input into the early termination process. Fortunately, the US Attorney's Office in Charlotte did not oppose the recommendation of the US Probation Office.
So this means I have completed all the terms of my sentence.
No more monthly reports (although those only take 5 minutes since I have been on low intensity).
No more needing permission to travel outside the western district of NC.
No need to seek court permission for international travel. (I am going to Paris for 11 weeks next month.)
No need to avoid contact with other felons.
No need to worry about some other legal violation such as a DUI triggering a violation of supervised release and possibly sending me back to prison.
I will receive a document in the mail in a couple weeks documenting that I have completed the terms of my sentence. This document will allow me to re-register to vote.
As far as I know, the only lasting limitations on my liberties are:
1. I cannot possess a handgun under threat of mandatory minimum 5 years in prison. (Stupid law for non-violent offenders.) Fortunately, I am not interested in guns.
2. I supposedly cannot travel to Canada, England, or Australia (yes, the former penal colony!), although I intend to test the first two countries sometime in the next year just to see what customs does when I show up.
In any case, this lifts a small psychological burden and frees me to be a little more open in my blog about matters I preferred to be more discrete about it.
For those who read this blog, you will know I was sentenced to 3 years supervised release. As allowed by law, I sought to have it terminated after one year but was denied.
The prosecutor in Philadelphia was unwilling to go along with any request by the probation office for early termination (in Philadelphia, you must serve 50% before they will consider it). Fortunately, they agreed to transfer jurisdiction to Charlotte (where you must serve 2/3), where the Probation Office has been managing my supervised release. By transferring jurisdiction to Charlotte, the Philadelphia prosecutor no longer had any input into the early termination process. Fortunately, the US Attorney's Office in Charlotte did not oppose the recommendation of the US Probation Office.
So this means I have completed all the terms of my sentence.
No more monthly reports (although those only take 5 minutes since I have been on low intensity).
No more needing permission to travel outside the western district of NC.
No need to seek court permission for international travel. (I am going to Paris for 11 weeks next month.)
No need to avoid contact with other felons.
No need to worry about some other legal violation such as a DUI triggering a violation of supervised release and possibly sending me back to prison.
I will receive a document in the mail in a couple weeks documenting that I have completed the terms of my sentence. This document will allow me to re-register to vote.
As far as I know, the only lasting limitations on my liberties are:
1. I cannot possess a handgun under threat of mandatory minimum 5 years in prison. (Stupid law for non-violent offenders.) Fortunately, I am not interested in guns.
2. I supposedly cannot travel to Canada, England, or Australia (yes, the former penal colony!), although I intend to test the first two countries sometime in the next year just to see what customs does when I show up.
In any case, this lifts a small psychological burden and frees me to be a little more open in my blog about matters I preferred to be more discrete about it.
Sunday, June 28, 2009
Changes to FPC Pensacola
I hope to post more on this after I am off supervised release but, as you can imagine, some things at FPC Pensacola have changed since I got out. I recently received an email from a former "guest" who had read my blog prior to entering and wanted to let me know about some fo the changes.
1. I had heard that movies at the remote auditorium had been suspended due to abuse related to the importation of contraband (since the auditorium is very close to the fence surrounding Saufley field and the public road that runs along it -- see map at bottom of page). However "actually when I was there we had a 2 movies a week (One at 1:00 pm in the big movie hall and two in the VR)" I assume that "the big movie hall" he is referring to is the same auditorium I had previously described. They used to show movies on Friday nights. Now apparently at 1p so I guess this is on Sat since otherwise it would be during workday. Holding them during the afternoon would make it harder for inmates to sneak out under cover of darkness to retrieve contraband dropped off by the fence. Just a guess. The VR is the visiting room.
2. Vending machines in the VR are no longer accessible during the week by inmates. That sucks! I really enjoyed my Klondike bar after a day of weedeating in the sun. Vending machines are apparently still there but only used during visiting hours (visitors can buy and share with inmate).
3. VR is no longer actually the "visiting room." Visitation is now in the adjacent courtyard (see map at bottom of page). The rectangular sidewalk path is now covered with canopy. "That sucked during the cold and rain – However the good guards allow family and people to still use the VR room. Not on paper. "
4. VR is now main TV room. All dormitory TV rooms have been converted into bunks. Ouch. Dormitories B and C each had a TV room with 3 TVs at the end of the hall. Dormitory A likewise had a TV room. After 10p count each night, you were restriced to your dorm but not your room. That is, you could roam the hall on your dorm in the middle of the night to wash clothes, cook food, use the bathroom or watch TV. Apparently, due to overcrowding and the need for more space, these TV rooms have been converted into bunk rooms, which means no after-hours TV. I don't know what they did for late night sporting events since NBA playoffs, Sun/Mon night football, NCAA basketball tournament, etc oftentimes are on after 10p. Used to be you could still watch them after 10p count but apparently not any more.
5. RDAP building across the street is now finished and to full capacity. Used to be Dorm A I believe housed those inmates in the Residential Drug Abuse Program. Now they have their own building which I guess also frees up space in Dorm A which I believe held 96 beds.
6. I asked how many had read my blog and how well know it was?
"I think every white collar guy did and the Drug guys who could read did also "
"Much larger then you think, It really helped me out and I came in with a guy from England who took the fall for US Airways and he also thanx you. "
I hope to provide more updates like this once I am off supervised release.
1. I had heard that movies at the remote auditorium had been suspended due to abuse related to the importation of contraband (since the auditorium is very close to the fence surrounding Saufley field and the public road that runs along it -- see map at bottom of page). However "actually when I was there we had a 2 movies a week (One at 1:00 pm in the big movie hall and two in the VR)" I assume that "the big movie hall" he is referring to is the same auditorium I had previously described. They used to show movies on Friday nights. Now apparently at 1p so I guess this is on Sat since otherwise it would be during workday. Holding them during the afternoon would make it harder for inmates to sneak out under cover of darkness to retrieve contraband dropped off by the fence. Just a guess. The VR is the visiting room.
2. Vending machines in the VR are no longer accessible during the week by inmates. That sucks! I really enjoyed my Klondike bar after a day of weedeating in the sun. Vending machines are apparently still there but only used during visiting hours (visitors can buy and share with inmate).
3. VR is no longer actually the "visiting room." Visitation is now in the adjacent courtyard (see map at bottom of page). The rectangular sidewalk path is now covered with canopy. "That sucked during the cold and rain – However the good guards allow family and people to still use the VR room. Not on paper. "
4. VR is now main TV room. All dormitory TV rooms have been converted into bunks. Ouch. Dormitories B and C each had a TV room with 3 TVs at the end of the hall. Dormitory A likewise had a TV room. After 10p count each night, you were restriced to your dorm but not your room. That is, you could roam the hall on your dorm in the middle of the night to wash clothes, cook food, use the bathroom or watch TV. Apparently, due to overcrowding and the need for more space, these TV rooms have been converted into bunk rooms, which means no after-hours TV. I don't know what they did for late night sporting events since NBA playoffs, Sun/Mon night football, NCAA basketball tournament, etc oftentimes are on after 10p. Used to be you could still watch them after 10p count but apparently not any more.
5. RDAP building across the street is now finished and to full capacity. Used to be Dorm A I believe housed those inmates in the Residential Drug Abuse Program. Now they have their own building which I guess also frees up space in Dorm A which I believe held 96 beds.
6. I asked how many had read my blog and how well know it was?
"I think every white collar guy did and the Drug guys who could read did also "
"Much larger then you think, It really helped me out and I came in with a guy from England who took the fall for US Airways and he also thanx you. "
I hope to provide more updates like this once I am off supervised release.
2 Year Anniversary
Today marks 2 years out of prison.
This is significant because, now that jurisdiction for my case has been officially transferred from Philadelphia (Eastern District of PA) to Charlotte (Western District of NC), I can now request early termination of my 3 years of supervised release.
In Philadelphia, you only have to serve 50% of your supervised release term before the Probation Office will request early termination. (Legally you can request early termination after one year -- which I did, it was denied -- but the Probation Office policy on recommending early termination varies from district to district.)
However, the US Probation Office in Philadelphia would not make this request (and without their recommendation, it is highly unlikely the judge would grant it) back on December 28 because the prosecutor opposed it believing I already received too light a sentence.
In Charlotte, you have to serve 2/3 of your supervised release term before the Probation Office will recommend early termination which they are now in the process of doing (if they have not already done it).
I will likely know the results within the next 10 days.
Once I am off supervised release, I will have a little more flexibility in what I do on this blog without being concerned about consequences.... not that I have shown much concern about that in the past!
This is significant because, now that jurisdiction for my case has been officially transferred from Philadelphia (Eastern District of PA) to Charlotte (Western District of NC), I can now request early termination of my 3 years of supervised release.
In Philadelphia, you only have to serve 50% of your supervised release term before the Probation Office will request early termination. (Legally you can request early termination after one year -- which I did, it was denied -- but the Probation Office policy on recommending early termination varies from district to district.)
However, the US Probation Office in Philadelphia would not make this request (and without their recommendation, it is highly unlikely the judge would grant it) back on December 28 because the prosecutor opposed it believing I already received too light a sentence.
In Charlotte, you have to serve 2/3 of your supervised release term before the Probation Office will recommend early termination which they are now in the process of doing (if they have not already done it).
I will likely know the results within the next 10 days.
Once I am off supervised release, I will have a little more flexibility in what I do on this blog without being concerned about consequences.... not that I have shown much concern about that in the past!
Sunday, April 26, 2009
Where is the Punch Line to this Joke?
Last week I received the following email from a Rabbit Hole reader with his own Rabbit Hole experience (some details have been editted to protect his privacy):
Hi Bill,
This is M. I have been following your blog since the beginning. I cannot express how helpful it has been. I read it regularly and it has been a source of encouragement and enlightenment for me.
I have a very similar story to yours. Professionally, I am in Information Technology (Corporate Director, Consultant, etc) and have been for over 20 years. While working with [company name withheld] as Director of Information Technology, I got caught-up in a corporate mess that started with the hostile takeover of the company and ended with me taking a plea deal. I got 5 months prison, 5 months home confinement, and 2 years probation. I have about 8 months probation left.
I thought I would be sent to a camp. I wasn't. I was sent to a Federal Detention Center. Not good. Being a detention center, it is run as a medium/maximum. Most inmates have very long sentences and it is an extremely controlled facility.
Right after prison, it was very difficult to find a job. I took a job at a retail store while on home confinement. Needless to say it was a humbling experience. After much difficulty, I ended up finding a job as a Director of Information Technology for another company. I never mentioned anything about the conviction, and I was never asked. Though I did not like not disclosing, I had to do what I had to do. Apparently, most employers do not do Federal Background checks. Everything was going phenomenal, I was right back where I left off. After about 6 months, probation decides they need to directly contact my employer to advise them of my conviction because I "posed a possible risk". So let me summarize:
I am not completely sure why I am contacting you. I guess part of me feels like I can be a part of the message you are trying to get across. I have no idea what your plans are for the future. Obviously, you have a great business mind and you are a man of faith. I consider myself the same (though some may disagree, lol). Either way, thank you for your transparency and willingness to put yourself in the line-of-fire with your blog. Let me know if you have any ideas to put a good mind to use.
Sincerely,
M
I have had some of my own bizarre experiences with the "tone-deafness" of the whole criminal justice system (although I don't really have any complaints about my experience with the US Probation Office in Charlotte... my POs have been great), nothing beats this although I have heard other stories similarly frustrating. Certainly in my case it helps to be self-employed with an internet-based business so I have avoided most of the collateral consequences of my felony status.
So exactly where is the punch line to this joke?
Hi Bill,
This is M. I have been following your blog since the beginning. I cannot express how helpful it has been. I read it regularly and it has been a source of encouragement and enlightenment for me.
I have a very similar story to yours. Professionally, I am in Information Technology (Corporate Director, Consultant, etc) and have been for over 20 years. While working with [company name withheld] as Director of Information Technology, I got caught-up in a corporate mess that started with the hostile takeover of the company and ended with me taking a plea deal. I got 5 months prison, 5 months home confinement, and 2 years probation. I have about 8 months probation left.
I thought I would be sent to a camp. I wasn't. I was sent to a Federal Detention Center. Not good. Being a detention center, it is run as a medium/maximum. Most inmates have very long sentences and it is an extremely controlled facility.
Right after prison, it was very difficult to find a job. I took a job at a retail store while on home confinement. Needless to say it was a humbling experience. After much difficulty, I ended up finding a job as a Director of Information Technology for another company. I never mentioned anything about the conviction, and I was never asked. Though I did not like not disclosing, I had to do what I had to do. Apparently, most employers do not do Federal Background checks. Everything was going phenomenal, I was right back where I left off. After about 6 months, probation decides they need to directly contact my employer to advise them of my conviction because I "posed a possible risk". So let me summarize:
- I got a great job (should be the point of "rehabilitation" or "correction")
- As a result, I have been paying $800 a month in restitution (benefits claimant)
- I am current on all other financial responsibilities, despite all the obstacles (incarceration, house arrest, probation, etc). (Benefits general economy and US government since they are in the bailout business now)
- I have 8 months left on my probation and have complied by all guidelines
- No restitution for the claimant
- I will have to foreclose my house, hurting the general economy
- Will not feasibly find a job until I am off supervision
- I understand US probation has the responsibility to "protect it's citizens". But I was eligible for early termination (solves all the issues) except for the outstanding restitution, so probation would object to it. And now I cannot pay any restitution.
I am not completely sure why I am contacting you. I guess part of me feels like I can be a part of the message you are trying to get across. I have no idea what your plans are for the future. Obviously, you have a great business mind and you are a man of faith. I consider myself the same (though some may disagree, lol). Either way, thank you for your transparency and willingness to put yourself in the line-of-fire with your blog. Let me know if you have any ideas to put a good mind to use.
Sincerely,
M
I have had some of my own bizarre experiences with the "tone-deafness" of the whole criminal justice system (although I don't really have any complaints about my experience with the US Probation Office in Charlotte... my POs have been great), nothing beats this although I have heard other stories similarly frustrating. Certainly in my case it helps to be self-employed with an internet-based business so I have avoided most of the collateral consequences of my felony status.
So exactly where is the punch line to this joke?
Tuesday, April 21, 2009
The Rabbit Hole Video
Last fall, I spoke at a seminar in Chicago in which I described my story as well as observations on life, law, and running a business on "auto-pilot". The 3-part video is below. Each segment is 31.5 minutes for a total of over 1.5 hours (and I still had more material... I just ran way out of time!).
How this came about is rather interesting.
Several years ago, I was told about a guy named Perry Marshall, who was supposed to be the guru for Google Adwords strategies. Google Adwords is an online advertising medium that allows you to display your ads alongside Google's regular (i.e. "organic") search results when certain keywords that you have bid on are searched. In March, 2006, I subscribed to Perry's email newsletter and purchased his e-book. (The following month, the prosecutor called my lawyer and said he was moving forward with the indictment.)
After I got out of prison and completed my home confinement in October 2007, I signed up for his Bobsled Run, 12-weeks of internet marketing training, including an intensive weekend coaching session at his home in Chicago where I got to meet him personally and discuss my business. At this time, I did not bring up my prison history.
Later the following July 11 (2008), I received an email that he broadcast to all his members:
Subject: "Marketing On Autopilot" - from dream to reality
William,
Have you ever said to yourself...
" If only I could, just once, get to a point where my business runs on autopilot and my monthly income does not rely on what I do from one day to the next...
...I would be free to take my entire life in a whole, completely new direction!
if only..."
I so keenly remember those days.
The days of wishing... "If only..."
I was yearning, nearly salivating at the possibility of being liberated from day-to-day, week-to-week paycheck work, project work, nose-to-the-grindstone work - because a wider world was calling.
The story continues here: (link no longer works so I removed)
I was on vacation at the time (in Greece -- see my Santorini and Mykonos pics!) when I received it but wasn't due back for a couple weeks so I had time to think about a possible reply which I sent on Aug 4:
> Perry,
>
> I'm willing to bet you have never received a letter like this from one
> of your clients.
>
> I just returned from 3 weeks in Greece and Spain and you sent this out
> 2 days after I left. I saw it when I checked my email in Mykonos but
> waited to reply till now.
>
> You know my business.
>
> I already knew that I could take 3-week trips to Europe and my
> business would do just fine. Of course, I would check my email every
> day (I don't bring my laptop anymore... I either use the internet room
> in the hotel or a local internet café) and respond to any
> "emergencies" but that was about all it took.
>
> However, the ultimate test was when I went 3 months without email...
> indeed 3 months without the internet or even a computer... courtesy of the
> American taxpayer in federal prison!
>
> I have never discussed this with you but March 30-June 28, 2007 I
> spent in the federal prison camp in Pensacola. Long story but
> basically I was a little too aggressive in some of my data collections
> methods and got the attention of the FBI (!) and next thing I know I'm
> being indicted and sent to prison (not to mention the $700K in legal fees
> and $150K in restitution.. ouch!).
>
> I prepared for my little vacation as best I could and, you know what,
> my business ran just fine without me. I made just as much money in
> prison as I did OUT of prison. Plus my personal expenses were a lot
> less! :) I had no access to the internet whatsoever for 3 months....
> I had my customer support girl in Florida answering phone calls and
> emails... that's it. I was able to talk to her occasionally to find
> out how my sales were doing but I really couldn't do much to run my business.
>
> My wife continued to live her life (minus me of course) just as she
> did before. I did not suffer from any of the collateral consequences
> that many ex-inmates suffer from (such as difficulty finding
> employment... I decided not to fire myself).
>
> And I also found a new calling... writing about life in prison and our
> bizarre federal legal system.
>
> I started a blog (www.60733066.com or www.billbaileyunplugged.com) a
> week before I entered prison (60733-066 was my inmate id #). I spent
> about $5K in Google ads during my 3 months in prison to drive traffic.
> I would write my observations on paper and send them to my wife who
> would then enter them to the blog. Once I got out, I was able to
> continue it myself. I think you might find it rather interesting
> reading. Of course you have to start at the end to start at the
> beginning since the posts are in reverse chronological order.
>
> I don't currently make any money off the site, but I do get lots of
> interesting emails from other people caught up in the federal legal
> system and facing prison.
>
> Bill
Now, I must admit in hindsight that my email possibly comes across a little more glib than I intended, almost implying that I somehow "beat" the system, which certainly was not the case, even though my business model did allow me to avoid many of the collateral consequences (and I did get some pleasure out of knowing that my business was making more in a month than the COs overseeing me probably made in a year). In any case, knowing Perry as I did, I thought he might find it interesting.
Little did I know HOW interesting!
This was his reply a week or so later:
Bill,
Thanks for your patience, I was outta town. This is REALLY fascinating.
Well I can think of a few things to do with this.
First, there's a lot of soulish stuff in here. I dived into some of your older blogs, found stuff about Jesus and why was this man born blind and why do good things happen to bad people... really interesting.
Second, I've got a gladiator club meeting in Chicago Sept 27-28 and it's an Autoresponder bootcamp. People will come home having had professional copywriters help them write a bunch of AR's and they'll go home with everything uploaded. You wanna come tell your story? I'd love to say "Mr. X is going to tell his story of doing time in prison while his business ran on autopilot" or something like that.
Third, yes you could turn this into a product if you wanted to. I suspect it would be small change compared to what you're normally used to but it could be fun to do if you want. Could also be a really interesting late night pajama jam teleseminar.
Wow, amazing story here....
Perry
And that is how it all happened.
Perry is a Christian and generally likes to give a "spiritual" talk at the beginning of the Sunday session of his weekend seminars. Based on what he read in my blog, he thought I would be able to integrate business, law, and spirituality into a talk his members would like.
I thought about it for a while, swallowed hard, and said ok.
At the end of August, Perry sent out the following email to promote my talk at the seminar (his email list has about 100,000 names on it):
Subject: The most EXTREME proof, EVER, of 'Marketing on Autopilot'
Just a few weeks ago, on August 4, I got this MOST UNUSUAL email from one of my Gladiator Club members, Bill Bailey:
Read the rest of Bill's story - and see his mug shot (literally)and get the link to Bill's Prison Blog - here.
Enjoy this story!
Perry Marshall
(NOTE: Perry's original link to the "rest of the story" no longer works but I found an archived copy of the page on another blog and that is what the link goes to. READ IT... it's pretty good and explains why he invited me to speak at his seminar. )
Well, after that promo, there was no way to back out!
It was a very tricky talk to prepare for but it seemed to be well-received. Although I was a college professor in my former life and have some experience talking in front of groups, this was a very different kind of talk.... much more personal. There were probably 80 or so people in attendance.
Perry videotaped the seminar including my talk. I was finally able to obtain a copy last week. Due to limitations with Blogger, I had to split the video into 3 parts and reduce the size about 1/3 to 320x240 (from 426x320). I also editted the video to overlay some of the quotes and pictures that were displayed on a screen in the room but do not appear in the original video.
If you would like a complete copy of the uneditted, original (i.e. higher quality) QuickTime (.mov) video, right click here and select Save Target As... to download to your computer. This file is 542MB so it may take a while depending on your connection speed.
In any case, let me know what you think. For those of you who have read my blog, much of this will be familiar (even though some material is new) but you may enjoy actually hearing me tell it rather than simply read it.
Again, the talk is just over 1.5 hours long (!) with each video just over 30 minutes.
How this came about is rather interesting.
Several years ago, I was told about a guy named Perry Marshall, who was supposed to be the guru for Google Adwords strategies. Google Adwords is an online advertising medium that allows you to display your ads alongside Google's regular (i.e. "organic") search results when certain keywords that you have bid on are searched. In March, 2006, I subscribed to Perry's email newsletter and purchased his e-book. (The following month, the prosecutor called my lawyer and said he was moving forward with the indictment.)
After I got out of prison and completed my home confinement in October 2007, I signed up for his Bobsled Run, 12-weeks of internet marketing training, including an intensive weekend coaching session at his home in Chicago where I got to meet him personally and discuss my business. At this time, I did not bring up my prison history.
Later the following July 11 (2008), I received an email that he broadcast to all his members:
Subject: "Marketing On Autopilot" - from dream to reality
William,
Have you ever said to yourself...
" If only I could, just once, get to a point where my business runs on autopilot and my monthly income does not rely on what I do from one day to the next...
...I would be free to take my entire life in a whole, completely new direction!
if only..."
I so keenly remember those days.
The days of wishing... "If only..."
I was yearning, nearly salivating at the possibility of being liberated from day-to-day, week-to-week paycheck work, project work, nose-to-the-grindstone work - because a wider world was calling.
The story continues here: (link no longer works so I removed)
I was on vacation at the time (in Greece -- see my Santorini and Mykonos pics!) when I received it but wasn't due back for a couple weeks so I had time to think about a possible reply which I sent on Aug 4:
> Perry,
>
> I'm willing to bet you have never received a letter like this from one
> of your clients.
>
> I just returned from 3 weeks in Greece and Spain and you sent this out
> 2 days after I left. I saw it when I checked my email in Mykonos but
> waited to reply till now.
>
> You know my business.
>
> I already knew that I could take 3-week trips to Europe and my
> business would do just fine. Of course, I would check my email every
> day (I don't bring my laptop anymore... I either use the internet room
> in the hotel or a local internet café) and respond to any
> "emergencies" but that was about all it took.
>
> However, the ultimate test was when I went 3 months without email...
> indeed 3 months without the internet or even a computer... courtesy of the
> American taxpayer in federal prison!
>
> I have never discussed this with you but March 30-June 28, 2007 I
> spent in the federal prison camp in Pensacola. Long story but
> basically I was a little too aggressive in some of my data collections
> methods and got the attention of the FBI (!) and next thing I know I'm
> being indicted and sent to prison (not to mention the $700K in legal fees
> and $150K in restitution.. ouch!).
>
> I prepared for my little vacation as best I could and, you know what,
> my business ran just fine without me. I made just as much money in
> prison as I did OUT of prison. Plus my personal expenses were a lot
> less! :) I had no access to the internet whatsoever for 3 months....
> I had my customer support girl in Florida answering phone calls and
> emails... that's it. I was able to talk to her occasionally to find
> out how my sales were doing but I really couldn't do much to run my business.
>
> My wife continued to live her life (minus me of course) just as she
> did before. I did not suffer from any of the collateral consequences
> that many ex-inmates suffer from (such as difficulty finding
> employment... I decided not to fire myself).
>
> And I also found a new calling... writing about life in prison and our
> bizarre federal legal system.
>
> I started a blog (www.60733066.com or www.billbaileyunplugged.com) a
> week before I entered prison (60733-066 was my inmate id #). I spent
> about $5K in Google ads during my 3 months in prison to drive traffic.
> I would write my observations on paper and send them to my wife who
> would then enter them to the blog. Once I got out, I was able to
> continue it myself. I think you might find it rather interesting
> reading. Of course you have to start at the end to start at the
> beginning since the posts are in reverse chronological order.
>
> I don't currently make any money off the site, but I do get lots of
> interesting emails from other people caught up in the federal legal
> system and facing prison.
>
> Bill
Now, I must admit in hindsight that my email possibly comes across a little more glib than I intended, almost implying that I somehow "beat" the system, which certainly was not the case, even though my business model did allow me to avoid many of the collateral consequences (and I did get some pleasure out of knowing that my business was making more in a month than the COs overseeing me probably made in a year). In any case, knowing Perry as I did, I thought he might find it interesting.
Little did I know HOW interesting!
This was his reply a week or so later:
Bill,
Thanks for your patience, I was outta town. This is REALLY fascinating.
Well I can think of a few things to do with this.
First, there's a lot of soulish stuff in here. I dived into some of your older blogs, found stuff about Jesus and why was this man born blind and why do good things happen to bad people... really interesting.
Second, I've got a gladiator club meeting in Chicago Sept 27-28 and it's an Autoresponder bootcamp. People will come home having had professional copywriters help them write a bunch of AR's and they'll go home with everything uploaded. You wanna come tell your story? I'd love to say "Mr. X is going to tell his story of doing time in prison while his business ran on autopilot" or something like that.
Third, yes you could turn this into a product if you wanted to. I suspect it would be small change compared to what you're normally used to but it could be fun to do if you want. Could also be a really interesting late night pajama jam teleseminar.
Wow, amazing story here....
Perry
And that is how it all happened.
Perry is a Christian and generally likes to give a "spiritual" talk at the beginning of the Sunday session of his weekend seminars. Based on what he read in my blog, he thought I would be able to integrate business, law, and spirituality into a talk his members would like.
I thought about it for a while, swallowed hard, and said ok.
At the end of August, Perry sent out the following email to promote my talk at the seminar (his email list has about 100,000 names on it):
Subject: The most EXTREME proof, EVER, of 'Marketing on Autopilot'
Just a few weeks ago, on August 4, I got this MOST UNUSUAL email from one of my Gladiator Club members, Bill Bailey:
Perry,
I'm willing to bet you have never received a letter like this from one of your clients.
I already knew that I could take 3-week trips to Europe and my business would do just fine. Of course, I would check my email every day (I don't bring my laptop anymore... I either use the internet room in the hotel or a local internet caf?) and respond to any "emergencies" but that was about all it took.
However, the ultimate test was when I went 3 months without email... indeed 3 months without the internet or even a computer... courtesy of the American taxpayer in federal prison!
Read the rest of Bill's story - and see his mug shot (literally)and get the link to Bill's Prison Blog - here.
Enjoy this story!
Perry Marshall
(NOTE: Perry's original link to the "rest of the story" no longer works but I found an archived copy of the page on another blog and that is what the link goes to. READ IT... it's pretty good and explains why he invited me to speak at his seminar. )
Well, after that promo, there was no way to back out!
It was a very tricky talk to prepare for but it seemed to be well-received. Although I was a college professor in my former life and have some experience talking in front of groups, this was a very different kind of talk.... much more personal. There were probably 80 or so people in attendance.
Perry videotaped the seminar including my talk. I was finally able to obtain a copy last week. Due to limitations with Blogger, I had to split the video into 3 parts and reduce the size about 1/3 to 320x240 (from 426x320). I also editted the video to overlay some of the quotes and pictures that were displayed on a screen in the room but do not appear in the original video.
If you would like a complete copy of the uneditted, original (i.e. higher quality) QuickTime (.mov) video, right click here and select Save Target As... to download to your computer. This file is 542MB so it may take a while depending on your connection speed.
In any case, let me know what you think. For those of you who have read my blog, much of this will be familiar (even though some material is new) but you may enjoy actually hearing me tell it rather than simply read it.
Again, the talk is just over 1.5 hours long (!) with each video just over 30 minutes.
Sunday, April 12, 2009
More fall-out from the Stevens Case
While I remain skeptical in the long-run, there appears to be some public re-thinking of the whole subject of prosecutorial abuse, especially in the federal system, basically echoing my remarks in the last couple of posts on the subjects.
Check out the following post on The Sentencing Blog:
Should we blame bad apples or a bad culture for federal prosecutors gone wild?
It references the following quote from a Wall Street Journal article:
I'll tell you what happens. Go directly to jail. Do not collect $200. Have a nice day.
Politico further amplifies this theme in Federal Judges are Fed-Up. Please read it!
Excerpt:
I hope so.
Part of the problem is that so many judges are themselves former prosecutors.
The reason I am skeptical about change in the long-run is that 1) politically speaking, it is difficult to run a campaign appearing "soft" on crime so there is never any political pressure for reform and 2) the general public is psychologically resistant to the idea that prosecutors might be the "bad" guys because if the people in charge of protecting the public are themselves corrupt, then who protects us from the protectors.
Short of nominating judges who view prosecutors skeptically, I am afraid this will be a fad that passes.
Check out the following post on The Sentencing Blog:
Should we blame bad apples or a bad culture for federal prosecutors gone wild?
It references the following quote from a Wall Street Journal article:
Todd Foster, a former federal prosecutor in Tampa and Houston and a former Federal Bureau of Investigation agent, questions whether the case would have been re-examined as closely if it hadn't involved a U.S. senator. "My question is what happens to the rest of us?" he asked. "What happens when the person doesn't have the resources Sen. Stevens had? What happens to those cases that don't reach the attorney general?"
I'll tell you what happens. Go directly to jail. Do not collect $200. Have a nice day.
Politico further amplifies this theme in Federal Judges are Fed-Up. Please read it!
Excerpt:
"Judges that have been on the bench that long rely on the prosecutors, they rely on the government attorneys, because they have to,” said the longtime litigator, who asked not be named. “When their confidence is shaken because of something they’ve seen, suddenly it dawns on them that they’ve been presiding over all these cases all these years and this might be the tip of the iceberg, maybe the wool has been pulled over their eyes. It’s disconcerting."
I hope so.
Part of the problem is that so many judges are themselves former prosecutors.
The reason I am skeptical about change in the long-run is that 1) politically speaking, it is difficult to run a campaign appearing "soft" on crime so there is never any political pressure for reform and 2) the general public is psychologically resistant to the idea that prosecutors might be the "bad" guys because if the people in charge of protecting the public are themselves corrupt, then who protects us from the protectors.
Short of nominating judges who view prosecutors skeptically, I am afraid this will be a fad that passes.
Tuesday, April 7, 2009
Loss of Faith
In an article in today's NY Times, "Judge Orders Investigation of Stevens Prosecutors," former Senator Ted Stevens is quoted:
Welcome to the club Mr. Stevens!
There is no doubt that the general public has "unwavering" support for the criminal justice system. Police officers, FBI agents, atorrneys general, and prosecutors are all assumed to be the "good guys" -- there is an overwhelming presumption in their favor.
This is further burnished by the fact that they usually have tremendous resource advantages over the typically hapless defendant, including a press release department that presents the government's point of view while the defendant typically is advised to keep his mouth shut. Thus the public for months or years only hears the charges against someone and the "truth" only comes out in a carefully scripted charade called a trial, in which
1. the jury already assumes that the person sitting in the defendant's chair must have done something wrong (otherwise they wouldn't be in trouble!).
2. the govt gets to present their case first (since, the theory goes, the burden is on them to prove their case)
3. the govt gets to present their case LAST in closing, although in theory this is only to rebut any defense arguments
4. the jury is not allowed to know what sentence a defendant is facing if convicted (this is important because "reasonable doubt" means different things depending on the consequences of being wrong if you are a juror). Most federal juries are shocked to find out the severity of the sentence given to defendants they have convicted and oftentimes simply give the govt the benefit of the doubt in complicated cases or convict on what they believe are lesser counts only to find out the defendant can still be sentenced as if guilty of the other counts (this is know as "acquitted conduct" enhancements).
The pollyannish view of our criminal justice system that so many share is to some degree necessary from a social point of view. I get that. A police state system that does not have the confidence of the majority of its citizens cannot function effectively. That is why what is happening in the Stevens case is so important.
I am convinced that most of what the criminal justice system (at least at the federal level) does is create the perception among the citizens that they are being protected from "bad guys." It doesn't actually matter whether the individuals prosecuted are actually "bad" or even guilty for that matter. What matters is that people believe that the government is doing something. The primary goal of most federal prosecutions is general deterrance; that is, successfully prosecute someone -- anyone -- for some alleged bad actions and then use the publicity from that prosecution to deter other bad acts.
A truly innocent individual, once convicted, has virtually no chance being believed because no one has the time or interest to give his case an independent review to determine if the jury was actually right.... we just assume the system works and leave it at that.
Unfortunately, the lesson that Mr. Stevens has learned -- this journey into the Rabbit Hole -- is a lesson that tens, if not hundreds, of thousands of citizens have already learned about the justice system. They, however, lacked the resources to fight and expose the improper conduct. Furthermore, if they do attempt to fight it, they will oftentimes find themselves punished even more.
There was significant prosecutorial misconduct in my case which I wanted to challenge. However, the consequences of failing in that challenge would have been disastrous so I made the only rational decision I could and fell on my sword so to speak in order to minimize the potential damage. I am still reluctant to talk about it because I am still on supervised release and fear possible retaliation. However, one day I will talk about it.
The larger story however is that THIS HAPPENS TO DEFENDANTS EVERY DAY and no one every knows about it. They take the plea deal, accept their sentence, the govt issues their self-serving press releases about how they are once again ever-vigilant in their prosecution of dangerous or fraudulent criminals and that this or that prosecution "serves as an example", yada, yada, yada..... And the press and public just eats it up.
Anyone who suggests that what happened in the Stevens case was the exception is a naive fool. I believe it is routine and widespread; it is just never caught because there is no one there to expose it.
“Until recently, my faith in the criminal justice system, particularly the judicial system, was unwavering,” he said. “But what some members of the prosecution team did nearly destroyed my faith. Their conduct had consequences for me that they will never realize and can never be reversed.”
Welcome to the club Mr. Stevens!
There is no doubt that the general public has "unwavering" support for the criminal justice system. Police officers, FBI agents, atorrneys general, and prosecutors are all assumed to be the "good guys" -- there is an overwhelming presumption in their favor.
This is further burnished by the fact that they usually have tremendous resource advantages over the typically hapless defendant, including a press release department that presents the government's point of view while the defendant typically is advised to keep his mouth shut. Thus the public for months or years only hears the charges against someone and the "truth" only comes out in a carefully scripted charade called a trial, in which
1. the jury already assumes that the person sitting in the defendant's chair must have done something wrong (otherwise they wouldn't be in trouble!).
2. the govt gets to present their case first (since, the theory goes, the burden is on them to prove their case)
3. the govt gets to present their case LAST in closing, although in theory this is only to rebut any defense arguments
4. the jury is not allowed to know what sentence a defendant is facing if convicted (this is important because "reasonable doubt" means different things depending on the consequences of being wrong if you are a juror). Most federal juries are shocked to find out the severity of the sentence given to defendants they have convicted and oftentimes simply give the govt the benefit of the doubt in complicated cases or convict on what they believe are lesser counts only to find out the defendant can still be sentenced as if guilty of the other counts (this is know as "acquitted conduct" enhancements).
The pollyannish view of our criminal justice system that so many share is to some degree necessary from a social point of view. I get that. A police state system that does not have the confidence of the majority of its citizens cannot function effectively. That is why what is happening in the Stevens case is so important.
I am convinced that most of what the criminal justice system (at least at the federal level) does is create the perception among the citizens that they are being protected from "bad guys." It doesn't actually matter whether the individuals prosecuted are actually "bad" or even guilty for that matter. What matters is that people believe that the government is doing something. The primary goal of most federal prosecutions is general deterrance; that is, successfully prosecute someone -- anyone -- for some alleged bad actions and then use the publicity from that prosecution to deter other bad acts.
A truly innocent individual, once convicted, has virtually no chance being believed because no one has the time or interest to give his case an independent review to determine if the jury was actually right.... we just assume the system works and leave it at that.
Unfortunately, the lesson that Mr. Stevens has learned -- this journey into the Rabbit Hole -- is a lesson that tens, if not hundreds, of thousands of citizens have already learned about the justice system. They, however, lacked the resources to fight and expose the improper conduct. Furthermore, if they do attempt to fight it, they will oftentimes find themselves punished even more.
There was significant prosecutorial misconduct in my case which I wanted to challenge. However, the consequences of failing in that challenge would have been disastrous so I made the only rational decision I could and fell on my sword so to speak in order to minimize the potential damage. I am still reluctant to talk about it because I am still on supervised release and fear possible retaliation. However, one day I will talk about it.
The larger story however is that THIS HAPPENS TO DEFENDANTS EVERY DAY and no one every knows about it. They take the plea deal, accept their sentence, the govt issues their self-serving press releases about how they are once again ever-vigilant in their prosecution of dangerous or fraudulent criminals and that this or that prosecution "serves as an example", yada, yada, yada..... And the press and public just eats it up.
Anyone who suggests that what happened in the Stevens case was the exception is a naive fool. I believe it is routine and widespread; it is just never caught because there is no one there to expose it.
Wednesday, April 1, 2009
Carl Horn: A Judge Now Sees Shades of Gray
Nice article in yesterday's Charlotte Observer about Carl Horn, outgoing federal magistrate judge:
http://www.charlotteobserver.com/local/story/633187.html
It notes:
(The full article can be found here and is well worth reading.)
I quoted him from this article in an earlier post (Telling Secrets) and will repeat it here:
I appreciate his personal growth because to some degree it mirrors mine. In the Charlotte Observer article I linked to above, it says:
I wish there were more federal judges like him.
http://www.charlotteobserver.com/local/story/633187.html
It notes:
In a 2003 article for a legal journal, for example, he bemoaned the “heavy-handed exercise of prosecutorial power” and described some prosecutors as “arrogant bullies.”
(The full article can be found here and is well worth reading.)
I quoted him from this article in an earlier post (Telling Secrets) and will repeat it here:
While judges and an increasing number of lawyers realize we have a serious imbalance in our federal criminal system, most of the public still does not. In
fact, the most often recurring comment I hear from friends or those who learn what I do for a living is some version of "Lock 'em up and throw away the key." Without putting the speaker down, my usual response begins something like, "You know, after over 15 years as a prosecutor and judge, I don't feel that way at all." Many constructive conversations have followed.
Take every opportunity to "spread the word." In addition to one-on-one communications, consider writing an opinion piece for your local paper or for your state and/or local bar publications. Write succinct letters to the editor that tell, as Paul Harvey would say, "the rest of the story" when related news is reported or opinion expressed. Accept, or even seek, opportunities to speak to civic, church, and other local clubs and groups. Appear on local television programs when invited. Little by little we must spread the word to the thinking and voting public - who, incidentally, also serve on our juries - if meaningful reform is to be achieved.
I appreciate his personal growth because to some degree it mirrors mine. In the Charlotte Observer article I linked to above, it says:
he was a Reagan Republican backed by the late Sen. Jesse Helms' machine. Today he's a registered independent with a pragmatic philosophy he describes as “more eclectic.”Horn stated:
I remember my father saying the older he got, the grayer things are,” says Horn,
57. “I've had a similar experience. … There's an awful lot of the public policy
world that's gray.
I wish there were more federal judges like him.
Charges Against Stevens Dropped
Last November in the following post:
http://60733066.blogspot.com/2008/11/is-ted-stevens-convicted-felon-or-not.html
I mentioned that there was significant prosecutorial misconduct in the case of Ted Stevens, the 85-year long time Sentator from Alaska who lost his bid for re-election last Nov in light of his conviction for lying on federal disclosure forms.
I expressed hope that he would win his appeal. As it turns out, it didn't even make it that far.
Today's NY Times article,
Now some may say, "See the system works. Mr. Stevens has been exonerated."
But think about it. Mr Stevens, a distinguished Senator of 40 years (longest serving Republican in history), had his life's work and reputation ruined by a misguided prosecution. He has endured an invasive and embarrassing criminal prosecution, the threat of imprisonment, and millions of dollars in legal expenses (which he does not recover) for conduct that was not illegal.
(Some may say that his conduct WAS illegal but the prosecution just bungled the case and he got off on a technicality but as I read the article, the prosecution willfully distorted the testimony of the key witness who had in earlier interviews provided exculpatory testimony that indicated that Mr Stevens did not know what the prosecution alleged he did. I think he was completely innocent from the outset and the prosecution knew it.)
When you are the subject of a federal investigation and subsequent prosecution, you have already lost. It doesn't matter whether you are acquitted or not -- you have lost. There is no such thing as "winning" a federal case.... you either lose big (conviction and prison) or lose small (acquittal but bankruptcy and loss of reputation).
Fortunately, while small consolation to Mr. Stevens, "it appeared that the prosecutors who tried Mr. Stevens on ethics charges would themselves now face ethics charges."
Hmmm..... we'll see.
ADDENDUM:
See this post at the Sentencing Law and Policy Blog:
http://sentencing.typepad.com/sentencing_law_and_policy/2009/04/official-ag-holder-statement-on-dojs-new-position-in-stevens-case.html
MORE COMMENTS:
http://roomfordebate.blogs.nytimes.com/2009/04/01/when-prosecutors-step-over-the-line/
http://60733066.blogspot.com/2008/11/is-ted-stevens-convicted-felon-or-not.html
I mentioned that there was significant prosecutorial misconduct in the case of Ted Stevens, the 85-year long time Sentator from Alaska who lost his bid for re-election last Nov in light of his conviction for lying on federal disclosure forms.
I expressed hope that he would win his appeal. As it turns out, it didn't even make it that far.
Today's NY Times article,
In a stunning development, Justice Department lawyers told a federal court that they had discovered a new instance of prosecutorial misconduct in the case and asked that the convictions be voided. There would be no new trial in the case.Wow.
Now some may say, "See the system works. Mr. Stevens has been exonerated."
But think about it. Mr Stevens, a distinguished Senator of 40 years (longest serving Republican in history), had his life's work and reputation ruined by a misguided prosecution. He has endured an invasive and embarrassing criminal prosecution, the threat of imprisonment, and millions of dollars in legal expenses (which he does not recover) for conduct that was not illegal.
(Some may say that his conduct WAS illegal but the prosecution just bungled the case and he got off on a technicality but as I read the article, the prosecution willfully distorted the testimony of the key witness who had in earlier interviews provided exculpatory testimony that indicated that Mr Stevens did not know what the prosecution alleged he did. I think he was completely innocent from the outset and the prosecution knew it.)
When you are the subject of a federal investigation and subsequent prosecution, you have already lost. It doesn't matter whether you are acquitted or not -- you have lost. There is no such thing as "winning" a federal case.... you either lose big (conviction and prison) or lose small (acquittal but bankruptcy and loss of reputation).
Fortunately, while small consolation to Mr. Stevens, "it appeared that the prosecutors who tried Mr. Stevens on ethics charges would themselves now face ethics charges."
Hmmm..... we'll see.
ADDENDUM:
See this post at the Sentencing Law and Policy Blog:
http://sentencing.typepad.com/sentencing_law_and_policy/2009/04/official-ag-holder-statement-on-dojs-new-position-in-stevens-case.html
My real-world translation [of the Attorney General's official statement]: "Though I have concluded we secured a constitutionally tainted conviction in the course of ruining Senator Stevens' career and legacy, I won't admit that any lawyers did anything wrong and I hope that by dropping this whole matter nobody will consider what this case reveals about our federal criminal justice system."
Though I am not a tort law or Bivens specialist, I cannot help but think about whether Senator Stevens might have a viable civil law claim for damages as a result of all the economic harm he has suffered as a result of his constitutionally tainted prosecution and conviction. At the very least, I would hope the feds might pick up some of his post-conviction legal bills.
MORE COMMENTS:
http://roomfordebate.blogs.nytimes.com/2009/04/01/when-prosecutors-step-over-the-line/
Tuesday, March 3, 2009
Maurice Clarett Blogs from Prison
First, apologies for not blogging more. There is always so much more to say than I have time and then I end up saying nothing. I had so much more "freedom" to write in prison :)
Second, I just read that Maurice Clarett is blogging from prison.
For the uninitiated, Clarett was a former football great -- albeit for only one year -- at Ohio State University, leading them to the national championship over Miami in 2002 before making some really bad choices that landed him in prison. You can read his bio here:
http://en.wikipedia.org/wiki/Maurice_Clarett
The ESPN article is here: http://sports.espn.go.com/ncf/news/story?id=3948006
His blog is here: http://mauriceclarett.wordpress.com/
His purpose is somewhat different than my purpose. For example, he says:
He states:
That is a common coping mechanism I observed in prison and I am certainly not going to judge it, especially when he and others had so much more time than I did. However, I took a different psychological approach. I "coped" by treating my experience as an "adventure" and I made a point of observing and recording every little detail I could.
It is something of a paradox that I could insulate myself from the potentially destructive aspects of prison life by essentially immersing myself in it. I created distance through proximity. By staying in "the moment" and focussing on the feelings and immediate experience, one can forget the larger "context" and create a different more positive meaning for your life.
The result I hope is that I have integrated my prison experience into my larger life rather than compartmentalizing it away. It has the added advantage that I have been able to help many others navigate the emotions of preparing for prison, a journey almost all inmates have had to make without a map.
Second, I just read that Maurice Clarett is blogging from prison.
For the uninitiated, Clarett was a former football great -- albeit for only one year -- at Ohio State University, leading them to the national championship over Miami in 2002 before making some really bad choices that landed him in prison. You can read his bio here:
http://en.wikipedia.org/wiki/Maurice_Clarett
The ESPN article is here: http://sports.espn.go.com/ncf/news/story?id=3948006
His blog is here: http://mauriceclarett.wordpress.com/
His purpose is somewhat different than my purpose. For example, he says:
I have no interest in discussing prison’s day to day operations. That serves noHe is focussing on keeping people out of prison. I was, and am, focussed on helping people who were already caught up in the federal justice system, rightly or wrongly.
purpose in my life. I created this site for other reasons. There are too many
young men and women that need hope and inspiration.
He states:
To a large degree, prison doesn’t exist to me anymore. I’m mentally
removed, on certain levels.
That is a common coping mechanism I observed in prison and I am certainly not going to judge it, especially when he and others had so much more time than I did. However, I took a different psychological approach. I "coped" by treating my experience as an "adventure" and I made a point of observing and recording every little detail I could.
It is something of a paradox that I could insulate myself from the potentially destructive aspects of prison life by essentially immersing myself in it. I created distance through proximity. By staying in "the moment" and focussing on the feelings and immediate experience, one can forget the larger "context" and create a different more positive meaning for your life.
The result I hope is that I have integrated my prison experience into my larger life rather than compartmentalizing it away. It has the added advantage that I have been able to help many others navigate the emotions of preparing for prison, a journey almost all inmates have had to make without a map.
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