17 July 2015
Text Redacted from Barrett Brown Sentencing Transcript
Thanks to Douglas Lucas for noting the redactions could be lifted.
1 (THE FOLLOWING PROCEEDINGS WERE HAD IN OPEN
2 COURT, WITH ALL PARTIES AND COUNSEL PRESENT.)
3 THE COURT: All right, Counsel approach [t]he
4 bench, please.
5 ******SEALED BENCH CONFERENCE******
6 (THE FOLLOWING PROCEEDINGS WERE HAD AT THE BENCH,
7 WITH ALL COUNSEL PRESENT.)
8 THE COURT: All right, I let Counsel bring their
9 iPads and telephones and computers in here as a
10 courtesy. I do not want to see anything and I repeat
11 anything in this courtroom in the media later on. Does
12 everybody understand me?
13 MS. CADEDDU: I'm sorry?
14 THE COURT: Well, I said Counsel is allowed to
15 bring telephones, iPads, and other equipment as a
16 courtesy, so they can properly represent their client, do
17 research or whatever. What I am saying is as a result of
18 the Court allowing that, I do not want to see anything
19 that happens in this courtroom out there in any type of
20 media. Does anybody have any questions?
21 MS. CADEDDU: Is the Court referring to
23 THE COURT: Recordings, photographs?
24 MS. CADEDDU: Of course.
25 THE COURT: I just want you to know, which
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1 dovetails into another issue. There was a request by the
2 defense to release or unseal the sentencing memorandum.
3 The same day the sentencing memorandum was filed, there
4 was information tweeted about its filing. There is
5 nobody outside who could know that that sentencing
6 memorandum was filed unless somebody leaked it to them.
7 MS. CADEDDU: Well, Your Honor --
8 THE COURT: Here is what I am going to say. The
9 reason being is when the public goes to the -- to the
10 Court's filing system, it doesn't show anything, so for
11 the media to express any type of opinion of that release,
12 somebody had to tell them.
13 MS. CADEDDU: I will address this because I filed
14 the motion and will respond that the sentencing and
15 pleadings they know are filed. In terms of the
16 sentencing memorandum, that was improper, but the problem
17 is that I was under instructions from my client to give
18 the sentencing memo to his mother and the gentleman that
19 runs the fund, so I provided to them advising them that
20 they were under seal which is what I normally do with
21 family members.
22 THE COURT: I have no problem with that, but you
23 need to tell your clients and effected persons not to get
24 cute to get around instructions with the Court. Now, as
25 far as I am concerned, it is probably really a moot issue
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1 at this point.
2 First of all, I would say that the sentencing
3 memorandum, that is, the motion to unseal I really think
4 it is untimely. The sentencing memorandum filed November
5 14, 2014. I don't know why the motion to unseal was not
6 filed within a few days afterwards instead of just this
7 past Thursday, but I don't think it was timely filed. I
8 think it is pretty much moot now anyway.
9 MS. CADEDDU: Again, Your Honor, I will address
10 that because that was me.
11 THE COURT: Okay.
12 MS. CADEDDU: That is that there have been -- I
13 actually never had requests to access to sentencing
14 pleadings. This case has a lot of media interest, and so
15 that flurry sort of began this week, and, you know, I
16 told people all sentencing pleadings are under seal and
17 was asked if there was any way to unseal, and I did the
18 research, and sentencing memos were not supposed to be
19 sealed. They are sealed by rule, but they are
20 accessible, so that's why I filed it.
21 THE COURT: All right, now, on this case I see
22 really several major objections, maybe two major
23 objections, the loss amount issue and the number of
24 victims. That is what appears to me to.
25 MS. CADEDDU: And grouping.
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1 THE COURT: The grouping; that is correct.
2 MS. CADEDDU: Yes.
3 THE COURT: Three major areas. As to the loss
4 amount, in light of the plea agreement, is there really
5 an issue on that? I thought the agreement on the loss
6 amount was between $400,000 up to one million.
7 MS. CADEDDU: It is, but probation calculates it
8 at $3.4 million dollars.
9 THE COURT: Let me say this. This is my position
10 on that. While there may be some evidence to support
11 that in light of the agreement between the parties, I
12 think that should prevail.
13 MS. CADEDDU: Understood, Your Honor.
14 THE COURT: So we are all on the same page.
15 MS. CADEDDU: We are.
16 THE COURT: I will make sure that statement is on
17 the record. I understand she has $3,670,000 and some
18 change, but in light of the agreement contained in
19 paragraph -- I believe it is 5 of the plea agreement -- I
20 think that is to control it, if that is the agreement the
21 parties reached.
22 MS. HEATH: Yes, Your Honor I believe it is
23 11C1.1(b), so it is a recommendation not binding upon the
24 Court, but it is recommendation and agreement between the
25 parties as to what loss they thought was attributable.
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1 THE COURT: Also, I thought I read something from
2 the government that they would not oppose that they would
3 honor that agreement.
4 MS. HEATH: Yes, Your Honor.
5 THE COURT: I guess the real question is, is
6 there really any need for us to go into that if that is
7 an agreement of the parties?
8 MS. CADEDDU: I don't believe so, Your Honor.
9 THE COURT: Mr. Ghappour?
10 MR. GHAPPOUR: Well, Your Honor, I would just
11 note that the agreement actually binds the government
12 from not seeking more than the $4 million dollars of
14 MS. CADEDDU: It doesn't necessarily bind the
15 defense. If Your Honor believes there is no way that we
16 will argue and be successful getting the loss figure
17 lower than $400,000, then Your Honor is correct and there
18 is no need in getting into it.
19 THE COURT: I thought the agreement was that the
20 government agreed that that would be the appropriate
21 amount, that that provision would apply. In other words,
22 based upon my reading of the paragraph, that is,
23 paragraph 5 of the plea agreement and applicable section
24 of the guidelines, there would be a 14-level increase
25 based upon the $400,000 to one-million-dollar range as
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1 opposed to the 18-level increase recommended by the
2 probation officer.
3 MR. GHAPPOUR: You're right.
4 MS. CADEDDU: That is correct, and that would
5 forestall a lot of argument if that were the inclination
6 of the Court.
7 THE COURT: I just want to know what we are up
8 against and if that is the agreement of the parties
9 then --
10 MS. CADEDDU: I will be doing the argument on
11 the guidelines, Your Honor, so I can just tell you what I
12 see as remaining issues.
13 THE COURT: Sure.
14 MS. CADEDDU: So we have the loss amount that was
15 the agreement of the parties, and so we can leave that
16 alone and I think that will shorten things
17 significantly. We do still have the remaining question
18 of the number of victims. That objection was partially
19 granted, and that objection, of course, is going to be --
20 there is also an issue of whether the -- whether those
21 victims, in fact, were -- whether the case involved --
22 never mind, let me address that at the end. We have the
23 loss of figure and number of victims which was partially
24 granted, and we also have the grouping which is a
25 significant issue for us in light of that enhancement for
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1 an official victim and those are the issues we have left.
2 THE COURT: All right, Ms. Heath, will there be
3 any testimony?
4 MS. HEATH: Your Honor, our presentation is
5 entirely dependent on what argument is presented by
6 defense to support their remaining objections. Yes,
7 there will be testimony in the event that they bring up
8 certain issues. I expect just one witness, Agent Robert
10 If the government is in a position to need to respond
11 to the threats to any significant detail, then I would
12 have a second agent, Agent Lynn because he was the case
13 agent on that, but that will be very, very short.
14 MS. CADEDDU: I guess there is certainly an issue
15 about whether the threat should be grouped, so I am not
16 sure I am understanding the government correctly in terms
17 of a need for testimony. Would that be on the grouping
19 MS. HEATH: Probably on the grouping, it depends
20 on how the defense is presenting its objections. It is
21 my understanding the defense usually goes first to
22 present objections and the government's response to that.
23 THE COURT: That's correct. I am sorry. Go
24 ahead, Ms. Cadeddu.
25 MS. CADEDDU: If you allow us to confer for a
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1 minute just to see if we can -- if we are going need.
2 THE COURT: How much time would you need? Ten
4 MS. CADEDDU: Ten minutes would be fine. We
5 would need to talk to our client too.
6 THE COURT: You want him brought out?
7 MS. CADEDDU: If you wouldn't mind, Your Honor.
8 ******END OF SEALED BENCH CONFERENCE NO. 1******
9 (THE FOLLOWING PROCEEDINGS WERE HAD IN OPEN
10 COURT, WITH ALL PARTIES AND COUNSEL PRESENT.)
11 THE COURT: Okay, all right, we are going to be
12 in recess for ten minutes.
13 Mr. Price and Mr. Marshal, bring out Mr. Brown,
15 THE COURT SECURITY OFFICER: All rise.
16 (THE FOLLOWING PROCEEDINGS WERE HAD IN OPEN COURT,
17 WITH ALL PARTIES AND COUNSEL PRESENT.)
18 THE COURT: I understand that Counsel has
19 requested a bench conference; is that correct?
20 MS. CADEDDU: Correct, Your Honor.
21 THE COURT: All right, please approach.
22 ******SEALED BENCH CONFERENCE NO. 2******
23 (THE FOLLOWING PROCEEDINGS WERE HAD AT THE BENCH,
24 WITH ALL COUNSEL PRESENT.)
25 MS. CADEDDU: So, Your Honor, we were just trying
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1 to determine from the defense what witnesses we want to
2 call and what testimony we might need, so the question
3 for us is in terms of loss amount that is already dealt
4 with, but we still have the objection as to the number of
5 victims and also whether it is, in fact, two points
6 assessed for the fact that it was trafficking access
7 devices. It was related all to the linking and credit
8 card charges that are part of the $3 million dollar loss
9 that the Court has not assessed against Mr. Brown under
10 the agreement, so I guess our question is or our point is
11 if the Court is inclined or if the Court believes that
12 those enhancements are not appropriate because the credit
13 card information is not appropriately included, then --
14 then really the only thing left is purely a legal
15 argument as to grouping, in which case we wouldn't have
16 any witness.
17 If on the other hand, the Court wants to hear
18 testimony about Mr. Brown's involvement in the credit
19 card situation and how that all went, then we do have a
20 witness and I am sure the government will have a witness.
21 THE COURT: So you are talking about relevant
22 conduct then?
23 MS. CADEDDU: Yes, sir. Whether that is properly
24 considered relevant conduct. If not, we don't have a
25 witness. If it is, then yes, and that would be the
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1 unauthorized access device enhancement and the number of
3 THE COURT: All right, that is something that
4 will have to be decided probably during the course of the
5 hearing. I guess we probably will need a witness as to
6 the relevant conduct. All right, anything else?
7 MS. CADEDDU: I don't think so.
8 MR. SWIFT: Your Honor, how would you like to
9 proceed? We said there are really two questions here
10 from the defense's perspective on the
11 guidelines. The first one is the grouping question which
12 is from our viewpoint a purely legal question. We don't
13 dispute the facts with regard to Agent Smith and what we
14 pled to and the government, and you already have a
15 complete transcript of the tape.
16 We are not disputing here. It is a legal question
17 whether we believe that would be part of a course of
18 continuing conduct which involved the earlier Stratfor,
19 and then we have the Stratfor part.
20 Do you want to hear legal argument first on that or
21 would you like to hear factual on the Stratfor Act or how
22 do you want to proceed? Do you want the government to
23 put on their evidence or us to go first? I am not sure.
24 THE COURT: Were you going to say something,
25 Ms. Heath?
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1 MS. HEATH: Yes, Your Honor, I believe their
2 grouping argument goes to attacking the relevant conduct
3 issue which then goes to the victims to some degree.
4 Although they did not specifically object in their
5 objections to the trafficking enhancement, they are now
6 saying that is part of what is included in their
7 objections because it is relevant conduct. I think
8 before we get to legal argument though, the Court would
9 need to hear facts, and the government has a witness for
10 that, but since it is the defense's objection as to why
11 relevant conduct would not be included, then, the
12 government would suggest that they go first to present
13 that and then the government can present its evidence
14 regarding relevant conduct which goes to the grouping.
15 MS. CADEDDU: It is the government's burden to
16 prove relevant conduct. That is the government's burden,
17 so I would not -- I would contest. That it is not our
19 THE COURT: You said you would contest or would
21 MS. CADEDDU: I do contest it is -- that relevant
22 conduct is our burden. I think the government has the
23 burden of proof here.
24 THE COURT: Isn't that correct that the
25 government has to show that it has all been relevant
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2 MS. HEATH: Yes, Your Honor.
3 THE COURT: When the person has the burden of
4 proof whether it is in this case or any other case, I
5 require that person to go first. For example, if, for
6 example, like in a motion to suppress, if there is no
7 search warrant, then the government has the burden of
8 proof to show that the -- that the search was justified.
9 If there is an issue of relevant conduct, I think the
10 government has the burden.
11 I think it is only right that the government go
12 first. What I also will probably ask is when the
13 government puts on its evidence, I also want to hear
14 evidence that the Defendant has, so we will take that
15 issue and move upon the next one.
16 MS. HEATH: That's fine, Your Honor. We can go
17 first or we can go last, whatever sets out the relevant
18 conduct, so --
19 THE COURT: Are you ready to proceed then?
20 MS. HEATH: Yes.
21 MS. CADEDDU: We are, Your Honor.
22 THE COURT: All right.
23 *******END OF SEALED BENCH CONFERENCE NO. 2******
24 (THE FOLLOWING PROCEEDINGS WERE HAD IN OPEN COURT,
25 WITH ALL PARTIES AND COUNSEL PRESENT.)