18 USC Sections 1028(a) (7),
on or about the following dates, defendant knowingly
transferred, caused to be transferred and aided and abetted the
transfer without lawful authority and in a manner affecting
interstate commerce social security numbers which are means of
identification issued by and under the authority of the United
States belonging to other persons with the intent to aid and
abet any unlawful activity that constitutes a violation of
federal law, namely false representation of social security
numbers for any purpose with intent to deceive in violation of
Title 42, United States Code Section 408(a) (7) (B) as follows:
Count 5, date 10/24/01, items transferred.
Approximately 15 social security numbers assigned to other
individuals.
MS. DUARTE: WELL, YOUR HONOR, THIS IS JUST - - I WENT THROUGH AND DID A BRIEF CHRONOLOGY, IT'S VERY BRIEF, AS TO THE ELECTRONIC EVIDENCE, OKAY. AND I CAN DO THE REST IF YOU WANT AND I CAN FILE IT IN THE FORM OF A DECLARATION.
THE COURT: I THINK YOU SHOULD.
MS. DUARTE: ON JUNE 4TH, 2002, ACCORDING TO MY RECORDS, I TURNED OVER TO MS. POTASHNER AT THE FEDERAL DEFENDER'S OFFICE EIGHT CD'S. THEY WERE ENTITLED HOSTING SOLUTIONS, ABOVE INC., WEB GROUP, A SERIES OF PRESERVATIONS DATED OCTOBER 6TH, DECEMBER 7TH, DECEMBER 2ND, FEBRUARY 28TH, AND MARCH 5TH. THAT WAS A SINGLE CD. A PRESERVATION FOR MARCH 28TH, A CD ENTITLED GX BACKUP, A CD ENTITLED 12-12-01, AND A CD BY THE SHORT NAME OF PAUL CARPENTER.
NOW, THESE CD'S CONSISTED OF, AMONG OTHER THINGS, MULTIPLE DOWNLOADS OF THE EVILGX WEBSITE FROM THE INTERNET IN AS
COMPLETE A FORM AS POSSIBLY CAN BE CAPTURED ON THE DATES NOTED.
THE COURT: OKAY. AND THAT WAS - - AND THE DOWNLOADS WERE RECORDED BY DATE SO THAT IT WAS THE VERSION OF THE WEBSITE
THAT COULD BE ESTABLISHED AT LEAST ON SOME KIND OF IDENTIFYING TAG IN THE DOWNLOAD.
THE COURT: IN OTHER WORDS, WITHOUT EXPECTING IT TO BE PART OF YOUR EVIDENCE AT TRIAL?
MS. DUARTE : CORRECT.
THE COURT: DID YOU KEEP A COPY OF IT , OF THESE 103 CD'S?
MS. DUARTE: I DON'T HAVE A COPY. THE ONLY THING THAT MIGHT HAVE OCCURRED, ALTHOUGH I DON'T THINK IT DID . LET ME ASK
THE CASE AGENT IF IT WAS IMAGED, YOUR HONOR? NO. IT WASN'T EVEN IMAGED BY THE F.B.I. BECAUSE IT WAS SO UNCLEAR IT DIDN'T HAVE EVIDENTIARY VALUE.
THE COURT: BASICALLY, YOU'RE SAYING WE TOOK THIS FROM THE COMPUTER, FROM THE THINGS THAT WE SEIZED WHEN WE CONDUCTED THE SEARCH AND WE DON'T NEED 'EM AND THEY'RE YOURS.
MS. DUARTE: TAKE 'EM BACK. THAT'S CORRECT, YOUR HONOR. I MEAN, OBVIOUSLY, THIS ISN'T AN INQUIRY ABOUT MY CONDUCT AND I KNOW THAT, YOUR HONOR, BUT I'VE ALSO AS I'VE DONE WITH ALL ATTORNEYS I MADE MYSELF AVAILABLE FOR ADDITIONAL CONSULTATION BUT I THOUGHT THAT THAT WAS THE EASIEST WAY TO SHOW HIM WHAT HAD HAPPENED BECAUSE I KNEW THAT HE WAS STEPPING INTO A DIFFICULT CASE AT THIS POINT. AND IN THAT LETTER, I ALSO TOLD HIM THAT MR. HARRIS AND I HAD HAD A MEET-AND-CONFER; THAT THE COURT HAD ORDERED WHEN MR. HARRIS WAS RELIEVED, THE ISSUE ABOUT THE MISSING - - AND I PUT THE TERM IN QUOTES, CD'S FROM BUREAU OF PRISONS HAD BEEN BROUGHT UP BY KILLERCOP. SO MR. HARRIS AND I HAD A MEET AND CONFER ABOUT THE EVIDENCE THAT WAS TURNED OVER TO HIM AND WE HAD FIGURED OUT WHICH THREE CD'S, IF YOU WILL, HE SUPPOSEDLY NO LONGER HAD AND I LISTED THOSE FOR MR. NICOLAYSEN AND I TOLD HIM THAT THEY WERE FROM - - I'M SORRY.
THE COURT: GO AHEAD.
MS. DUARTE: THAT THEY WERE FROM THAT BATCH OF CD'S AND FLOPPIES THAT WE HAD EARLIER RETURNED DEEMING TO HAVE NO
EVIDENTIARY VALUE WHATSOEVER.
THE COURT: THANKS, VERY MUCH. I CAN SEE WHY YOU WANTED TO ARTICULATE THAT AND YOU'RE RIGHT. AT NO TIME HAD I EVER EVEN
THOUGHT THAT THE GOVERNMENT OR YOU PERSONALLY DID ANYTHING INAPPROPRIATE OR UNETHICAL, NOT AT ALL. NOW, MR. REED, YOU JUST HEARD WHAT MS. DUARTE TOLD ME. HOW MUCH OF THAT MATERIAL THAT SHE JUST DESCRIBED DO YOU BELIEVE YOU HAVE IN YOUR PHYSICAL POSSESSION?
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