December 8, 1999
Re: Plea Agreement with David Smith
Dear Mr. Borden:
I wish to advise you of the position of the United States regarding a possible disposition of this case in advance of trial. I do so to avoid the expense that unnecessary trial preparation causes the Court and the parties. This offer will remain open until December 18, 1999, and, if an executed agreement is not received in this Office on or before that date, this offer will expire.
Charge
Conditioned on the understandings specified below, the United States will accept a guilty plea from your client David Smith ("defendant") to an Information to be filed against him that charges him with knowingly and wilfully transmitting the "Melissa virus," and as a result of such conduct, intentionally causing damage without authorization to protected computers, in violation of Title 18, United States Code, Sections 1030(a)(5)(A) and 2. If defendant enters a guilty plea and is sentenced on this charge, the United States Attorney for the District of New Jersey will not bring any further charges against defendant relating to his having transmitted the "Melissa virus" or to the computer viruses he created and revealed to this Office before the date of this plea. However, in the event that the judgment of conviction entered as a result of this guilty plea does not remain in full force and effect, any charges that are not time-barred by the applicable statute of limitations on the date this agreement is signed by defendant may be commenced against him, notwithstanding the expiration of the limitations period after defendant signs the agreement.
Sentence and Other Penalties
The sentence to be imposed upon defendant is within the sole discretion of the sentencing judge, subject to the provisions of the Sentencing Reform Act, 18 U.S.C. § 3551-3742 and 28 U.S.C.§ 991-998, and the United States Sentencing Guidelines. The sentencing judge may impose the maximum term of imprisonment and the maximum fine that are consistent with the Sentencing Reform Act and the Sentencing Guidelines, up to and including the statutory maximum term of imprisonment and the statutory maximum fine.
The violation of 18 U.S.C. § 1030(a)(5)(A) charged in the Information carries a statutory maximum penalty of 5 years' imprisonment and a $250,000 fine. Pursuant to 18 U.S.C.§ 3571, the sentencing judge could impose an alternative fine of up to twice the gross profits to defendant or gross loss to any victims of this offense. The Sentencing Reform Act and the Sentencing Guidelines also may impose a minimum term of imprisonment and/or fine, and the Sentencing Guidelines may authorize departure from the minimum and maximum penalties under certain circumstances. All fines imposed by the sentencing court in excess of $2,500 are subject to the payment of interest.
Further, in addition to imposing any other penalty on defendant, the sentencing judge: (1) will order defendant to pay an assessment of $100 pursuant to 18 U.S.C. § 3013, which assessment must be paid on or before the date of sentencing; (2) shall order defendant to pay restitution pursuant to 18 U.S.C. § 3663, 3663A, and 3664; (3) may order defendant, pursuant to 18 U.S.C. § 3555, to give notice to any victims of his offense; and, (4) pursuant to 18 U.S.C. § 3583 and § 5D1.2 of the Sentencing Guidelines, may require defendant to serve a term of supervised release of at least 2 years but not more than 3 years, which will begin at the expiration of any term of imprisonment imposed. Should defendant be placed on a term of supervised release and subsequently violate any of the conditions of supervised release before the expiration of its term, defendant may be sentenced to not more than 2 years' imprisonment in addition to any prison term previously imposed and in addition to the statutory maximum term of imprisonment set forth above.
Stipulations
The United States and defendant agree to stipulate at sentencing to the statements set forth in the attached Schedule A, which hereby is made a part of this plea agreement. This agreement to stipulate, however, cannot and does not bind the sentencing court, which may make independent factual findings and may reject any or all of the stipulations entered into by the parties. To the extent the parties do not stipulate, each reserves the right to argue the impact of any fact on the sentence. Moreover, this agreement to stipulate on the part of the United States is based on the information and evidence that this Office possesses as of the date of this plea agreement. Thus, if this Office obtains or receives additional evidence or information prior to sentencing that it determines to be credible and to be materially in conflict with any stipulation in the attached Schedule A, the United States shall not be bound by any such stipulation. A determination that any stipulation is not binding shall not release either the United States or defendant from any other portion of this plea agreement, including any other stipulation.
Rights of U.S. Attorney's Office at Sentencing
This Office cannot and does not make any representation or promise as to what guideline range will be found applicable to defendant, or as to what sentence defendant ultimately will receive. This Office, however, does reserve its right to take a position with respect to the appropriate sentence to be imposed on defendant by the sentencing judge. In addition, this Office will inform the sentencing judge and the Probation Office of: (1) this agreement; (2) the nature and extent of defendant's activities and relevant conduct with respect to this case; and (3) all other information relevant to sentencing, favorable or otherwise, in the possession of this Office.
The United States specifically reserves the right to correct factual misstatements relating to sentencing proceedings; to appeal defendant's sentence pursuant to 18 U.S.C. § 3742(b); and to oppose any appeal of his sentence by defendant pursuant to 18 U.S.C. § 3742(a).
Other Provisions
This agreement is limited to the United States Attorney's Office for the District of New Jersey and cannot bind other federal, state, or local prosecuting authorities. However, this Office will bring this agreement to the attention of other prosecuting offices, if requested to do so. Finally, this agreement was reached without regard to any civil matters that may be pending or commenced in the future against defendant, including, but not limited to, proceedings by the Internal Revenue Service relating to potential civil tax liability.
This agreement constitutes the full and complete agreement between defendant
and the United States Attorney for the District of New Jersey. No additional
promises, agreements, or conditions have been entered into other than those
set forth in this letter, and none will be entered into unless in writing
and signed by all parties.
Very truly yours,
FAITH S. HOCHBERG
United States Attorney
By: Elliot N. Turrini
Assistant U.S. Attorney
APPROVED:
_______________________________
Carlos F. Ortiz
Deputy Chief, Criminal Division
I have received this letter from my attorney, Edward Borden, Jr., Esq.,
I have read it, and I understand it fully. I hereby acknowledge that it
fully sets forth my agreement with the Office of the United States Attorney
for the District of New Jersey. I state that there have been no additional
promises or representations made to me by any officials or employees of
the United States Government or by my attorney in connection with this
matter.
____________________________
David Smith
Witnessed by:
____________________________
Edward F. Borden, Jr., Esq.
Counsel for David Smith Date:
1. As the applicable guideline is USSG § 2B1.3, defendant's base offense level should be 4.
2. As the amount of the exceeded $80,000,000, defendant's offense level should be increased 20 levels. See USSG § 2B1.3(b)(1) and 2B1.1 (b)(1)(U).
3. As the offense involved more than minimal planning, defendant's offense level should be increased 2 levels. See USSG § 2B1.3(b)(3).
4. As of the date of this agreement, the defendant has clearly demonstrated a recognition and affirmative acceptance of personal responsibility for the offense charged. Therefore, a downward adjustment of 2 points for acceptance of responsibility is appropriate if defendant's acceptance of responsibility continues through the date of sentencing. See USSG § 3E1.1(a).
5. As of the date of this agreement, the defendant has timely notified authorities of his intention to enter a plea of guilty, thereby permitting the government to avoid preparing for trial and permitting the court to allocate its resources efficiently. Therefore, unless he indicates an intention not to enter a plea of guilty, thereby forcing the government to prepare for trial, a downward adjustment of 1 additional level is appropriate. See USSG § 3E1.1(b)(2).
6. The parties agree that there is no basis for any upward or downward departure from the total offense level except as articulated herein.
7. Defendant reserves the right to seek a downward departure on the basis that the loss described in paragraph 2 overstates the seriousness of the offense. See USSG § 5K2.0 and 2F1.1, comment (n.11). The United States reserves the right to oppose such a departure motion.
8. If the defendant seeks the departure described in paragraph 7, the
United States reserves the right to seek an upward departure on the basis
that the loss described in paragraph 2 does not fully capture the harmfulness
of the conduct and/or understated the seriousness of the offense. See USSG
§ 2B1.1, comment (n.15), 5K2.0, and 5K2.5. The defendant reserves
the right to oppose such a departure motion.
Go to . . . CCIPS Home Page || Justice Department Home Page