20 June 1999
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I certify under penalty of perjury under the laws of the State of Washington that on this date I mailed a copy of the document to which this certificate is affixed to via messenger Robb
London & Floyd short, AUSAs
Dated: 6/8/99
Sarah Conger
CMG FILED ________ ENTERED
_______ RECEIVED

JUN 09 1999

CLERK U.S. DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
BY DEPUTY

Hon. Robert J. Bryan

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA
UNITED STATES OF AMERICA.

> Plaintiff.

v.

CARL EDWARD JOHNSON,

> Defendant.

_________________________________

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NO. CR98-5393RJB

DEFENDANT'S SENTENCING
MEMORANDUM

I. INTRODUCTION

On April 20, 1999, this Court found defendant Carl Johnson guilty of four substantive offenses based upon his dissemination of three threatening e-mail messages. Johnson now comes before this Court for sentencing.

II. BACKGROUND FACTS

Carl Johnson, Jr. is a fifty year-old man and a citizen of both the United States and Canada. Johnson has been in custody since his arrest in the District of Arizona on August 18, 1998.

As reflected in the attached letters, Carl Johnson has had significant physical and emotional problems since his youth. His father recalls that Carl was diagnosed as suffering from Schizophrenia when he was a youth. He has since

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DEFENDANT'S SENTENCING MEMORANDUM - 1 |  |  | LAW OFFICES OF ALLEN, HANSEN & MAYBROWN, P.S. 600 UNIVERSITY STREET SUITE 3O20 SEATTLE, WASHINGTON 98101
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been diagnosed as suffering from the following conditions: Schizophrenia, Tourette's Syndrome, Obsessive-Compulsive Disorder, Personality Disorder (not otherwise specified), Adult Attention Deficit/Hyperactivity Disorder, Substance Abuse, Tic Disorder, and Intermittent Alcohol Abuse. He has received an array of medications and other interventions, with mild to moderate success.

Notwithstanding all of these circumstances, Johnson has been able to function with the assistance of his family. He has held several jobs, he has performed in a musical group, he has married, and he has made several friends.

Although Johnson had been prone to rage attacks, he has taken countermeasures to ensure that he does not pose a threat to others. Friends and family members consistently describe Johnson as a caring and non-violent person.

In 1996, Johnson moved to a cabin in Bienfait, Saskatchewan. While living in Bienfait, Johnson's world seemed to revolve around the internet. This medium helped to feed Johnson's paranoid views and his apparent distaste for government authority. Johnson then created a bot which he called "Dead Lucky," that seemed to call for cash prizes to be awarded to any person that could guess the date and time of a particular government official's death. He also created "The Official Royal Canadian Mounted Police HATE Page." Johnson used monikers such as "TM," "Truthmonger," "Toto," "Son of Gomez," and "Human Gus Peter" when sending messages on the internet. Johnson would sometimes use anonymous remailers when posting such messages.

During 1997, Johnson began posting e-mail messages to Cypherpunks1 on the internet. One of these messages displayed obvious antagonism toward Magistrate Judge Kelly Arnold on account of his issuance of a search warrant that led to the arrest and prosecution of James Bell. Another message suggested antipathy towards the Ninth Circuit judges handling the appeal in Bernstein v. United States, Ninth Circuit No. 97-16686. One final message seemed threatening towards Bill Gates of the Microsoft Corporation.

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> 1 The Cypherpunks list was established in 1992 as a forum for people to communicate with each other concerning the science, practice, and politics of cryptography.

After learning of these threatening messages, the Government obtained warrant and Johnson was arrested in Tucson, Arizona. At the time of Johnson's initial appearance, Magistrate Judge Nancy Flora ordered that he be sent to the Bureau of Prisons! facility at Springfield, Illinois for a psychiatric evaluation. This Court has previously considered the forensic report that was prepared following this evaluation. While Johnson maintains that the evaluator's findings and conclusions are somewhat skewed, even he confirmed that Johnson was suffering from Tourette's Disorder and Obsessive-Compulsive Disorder. See Forensic Report at 30.2

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> 2 Johnson's new counsel has attempted to obtain copies of all documents that are discussed in the Forensic Report, but counsel has yet to receive any of these documents.

During September 1998, a Grand Jury in the Western District of Washington returned a one-count Indictment charging Johnson with threatening to kill law enforcement officers and judges. Thereafter, on March 4, 1999, the

Grand Jury returned a Superseding Indictment charging Johnson with five substantive counts: (1) Obstruction of Justice by Threat of Death Against a Judicial Officer in violation of 18 U.S.C. § 1503; (2) Retaliation Against a Judicial Officer in violation of 18 U.S.C. § 115; (3) Obstruction of Justice by Threat of Death Against a Judicial Officer in violation of 18 U.S.C. § 1503; (4) Threatening Communications in Interstate or Foreign Commerce in violation of 18 U.S.C. § 875(c); and (5) Threatening Communications in Interstate or Foreign Commerce in violation of 18 U.S.C. § 875(c).

This Court held a bench trial during April 1999. On April 20, 1999, the Court found the defendant not guilty of Count 1, but guilty of the remaining four counts in the Superseding Indictment. See Court's Oral Decision.

III. SENTENCING OPTIONS

A. Introduction

Carl Johnson stands convicted of four separate offenses based on three threatening messages sent by e-mail: one violation of 18 U.S.C. § 115 (Count 2), one violation of 18 U.S.C. § 1503 (Count 3), and two violation of 18 U.S.C. § 875(c) (Count 4 and 5). Count 2 stems from the threatening message that named Magistrate Judge Arnold; counts 3 and 4 stem from the threatening message that named Judge Betty Fletcher; count 5 stems from a threatening message that named Bill Gates.

It appears that the Government will contend that Johnson now faces a total offense level of 27 resulting in a sentencing range of 70 to 87 months. The United States Probation Office has expressed considerable uncertainty regarding the

guideline calculations in this case. In the original Presentence Report ("PSR"), the probation officer concluded that Johnson faced a total offense level of 24 resulting in a sentencing range of 51 to 63 months. Thereafter, on June 4, 1999, the officer prepared an amended PSR (and an addendum) in which she claimed that Johnson faced a total offense level of 27 resulting in a sentencing range of 70 to 87 months. See Amended PSR at 18 (Paragraph 107).3

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> 3 The probation officer then concluded, without providing any notice to defense counsel, that two additional adjustments would apply: special skill and obstruction. See Amended PSR at 16 (Paragraphs 61-62). The defense objects to these adjustments.

It is the defense view that this Court should impose a sentence of not more than 24 months in custody. First, such a sentence is proper because Johnson actually faces a total offense level of 16. Second, if the Court concludes that Johnson faces a somewhat higher total offense level, it should grant a downward departure. The Court should not impose a long prison sentence in this case.

B. Applicable Guidelines - Count 3

Consistent with U.S.S.G. § 1B1.2(a), the sentencing court must apply the guideline provision "most applicable to the offense of conviction." The court ordinarily will use the guideline listed in the Statutory index. See, e.g., United States v. Saavedra, 148 F.3d 1311, 1315 (11th Cir. 1998). However, this Court need not apply the listed guideline where a more analogous guideline can be found. See, e.g., United States v. Cafalu, 85 F.3d 964, 967-68 (2d Cir. 1996) (court need not sentence defendant under obstruction guideline any time it finds intent to obstruct the administration of justice); United States v. Perrone, 936 F.2d

1403, 1419-20 (2d Cir. 1991) (court selects most appropriate guideline under the circumstances) .

> [A]ll of the guidelines' application instructions characterize the Index as an interpretive aid; it guides the sentencing court toward the "ordinarily applicable" guideline and is described as a tool that "may" be used to "assist" in determining the appropriate guideline. U.S.S.G. § 1B1.1(a). Rather than establishing immutably the exclusive list of available guidelines for given offenses, the Index merely points the court in the right direction. Its suggestions are advisory; what ultimately controls is the "most applicable guideline."

United States v. Cambra, 933 F.2d 752, 755 (9th Cir. 1991). This is an "atypical" case such that the Court should look beyond the Statutory Index in identifying the applicable offense guideline section.

It is the defense's view that all counts should be scored under the guideline intended to cover offenses involving threatening and harassing communications (U.S.S.G. § 2A6.1) -- for all of the offense conduct was based upon threatening email communications.4 Notwithstanding the fact that Johnson was convicted of a violation of 18 U.S.C. § 1503 (obstruction of justice), even Count 3 should be scored under U.S.S.G. § 2A6. 1. The obstruction count, like all other counts, was based exclusively upon Johnson's dissemination of a threatening communication regarding Ninth Circuit judges (including Betty Fletcher). Conviction based on such a communication is best covered by the "Threatening or Harassing Communications" guideline. Thus, the offense should receive a Base Offense Level of 12 and an Adjusted Offense Level of 15. See U.S.S.G. § 2A6.1.

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> 4 The Court ultimately concluded that each of these messages were "true threats under the law. Court's Oral Decision at 10-14.

Consistent with the defense theory regarding Counts 3, the multiple-count adjustment should be recalculated as follows:

> |  | Units
> Adjusted Offense Level for Count 2 | 15 | 1
> Adjusted Offense Level for Counts 3 and 4 | 15 | 1
> Adjusted Offense Level for Count 5 | 12 | 1
> |  | ____
> Total Number of Units |  | 3

Thus, with an adjusted offense level of 15 and an increase in the offense level of to reflect the 3 units under U.S.S.G. § 3D1, the combined adjusted offense level is 18.

C. No Obstruction Adjustment Should Apply

The Guidelines provide for a two-level upward adjustment if "the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice during the investigation, prosecution, or sentencing of the instant offense." U.S.S.G. § 3C1.1.

> The Application Notes of the Guidelines state that the enhancement applies to conduct such as "committing, suborning, or attempting to suborn perjury." Furthermore, "the defendant is accountable for his own conduct and for conduct that he aided or abetted, counseled, commanded, induced, procured, or willfully caused."

United States v. Garcia, 135 F.3d 667, 669 (9th Cir. 1998) (citing U.S.S.G. § 3C1.1 cmt. 3(b) and cmt. 7).

Here, the Probation Officer claims that "[i]t is believed that the defendant directed that his password be posted on the Internet in an effort to obstruct the investigation and ultimate prosecution against him." PSR at 11, 13 (Paragraphs

47, 62). Thus, the officer contends that two points should be added under U.S.S.G. § 3C1.1.

It is clear that Johnson has had no access to any computer since his arrest. Insofar as the Probation Officer cites no evidence to support her belief that Johnson directed some (unidentified) person to disclose the objectionable information, there is an insufficient basis for this Court to find that Johnson "aided or abetted, counseled, commanded, procured, or willfully caused" the password to be posted on the internet. It is noteworthy that many other persons, particularly persons affiliated with the Cypherpunks, have taken a great interest in this case. Counsel understands that countless court records and documents related to this case where posted on the internet. Insofar as any interested person may have posted Johnson's password for his or her own purposes, this Court should not impose the suggested adjustment.

The probation officer also claims that it was one of the "defendant's theories" that anyone could have used his password as it was known to the public. See PSR at 11 , 13 (Paragraphs 47, 62) . It should be noted that Johnson's counsel posited this theory during trial. Given Johnson's apparent displeasure with trial counsel's handling of the case, the Court should not hold Johnson responsible for this particular argument.

The Court should also consider United States v. Dunnigan, 507 U.S. 87, 95, 113 S.Ct. 1111, 122 L.Ed.2d 445 (1993), where the Supreme Court held that adjustment for obstruction was permitted where the defendant herself presented

perjured testimony at trial. As Application Note 1 to Guideline § 3C1.1 makes clear:

> This provision is not intended to punish the defendant for the exercise of a constitutional right. A defendant's denial of guilt (other than a denial of guilt under oath that constitutes perjury), refusal to admit guilt or provide information to a probation officer, or refusal to enter a plea of guilty is not a basis for application of this provision. In applying this provision in respect to alleged false testimony or statements by the defendant, such testimony or statements should be evaluated in a light most favorable to the defendant.

Of course, a defendant's right to counsel is protected by the Constitution. See, e.g., Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Any suggestion that Johnson should be penalized because his attorney chose to present this argument runs contrary to the most fundamental principles of Due Process. Counsel's presentation of an argument in support of a defense should not be viewed as obstruction of justice.

D. No "Special Skill" Adjustment Should Apply

U.S.S.G. § 3B1.3 provides that the district court may enhance the defendant's offense level if he "abused a position of public or private trust, or used special skill, in a manner that significantly facilitated the commission or concealment of the offense." The phrase "special skill" is defined as

> a skill not possessed by members of the general public and usually requiring substantial education, training or licensing. Examples would include pilots, lawyers, doctors, accountants, chemists, and demolition experts.

Id. comment. Application note 2.

The probation officer claims that Johnson used "special skill" when he posted e-mail messages. See PSR at 11, 12, 13 (Paragraphs 47, 55, 66). In particular, she notes that he relied upon forged headers and PGP encryption software when sending his anonymous threat regarding the Ninth Circuit judges. The sending of anonymous messages is not a special skill -- certainly not for any person with a rudimentary understanding of computer software. Such messages are very frequently sent by "spammers"5 -- although the State of Washington has recently drafted legislation that prohibits the mailing of anonymous e-mail messages. This conduct does not require substantial education, training, or licensing.

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> 5 "Spam" is the name used to describe junk e-mail and unwanted solicitations on the internet.

The defense is hard-pressed to see how the use of PGP encryption technology could have assisted in the offense conduct. Rather, it seems that the sending of an encrypted message helped to ensure that the message would be indecipherable to many readers. The encryption process must have also made it less likely that the offending message would be communicated to the judges of the Ninth Circuit.

E. The Court Should Allow an Adjustment for "Acceptance of Responsibility"

"A defendant is not required to plead guilty to receive the acceptance of responsibility reduction." United States v. McKinney, 15 F.3d 849, 852 (9th Cir. 1994). Because the Guidelines can not be read to penalize the exercise of the constitutional right to go to trial, they do not categorically preclude a defendant

from obtaining an adjustment for "acceptance of responsibility" simply because he puts the Government to its burden of proof. See U.S.S.G. § 3E 1.1 comment 2 ("Conviction by trial, however, does not automatically preclude a defendant from consideration for such a reduction."). Rather, the Guidelines provide for a two-level reduction "if the defendant clearly demonstrates a recognition and affirmative acceptance of personal responsibility for his criminal conduct ...." U.S.S.G. § 3E1.1

Before meeting with new counsel, Carl Johnson wrote an apology letter to Magistrate Judge Kelly Arnold. See Appendix C. Although Johnson's letter may seem inappropriate in a case of this sort, it does demonstrate acknowledgement of personal responsibility for his conduct and the ramifications of that conduct. Insofar as Johnson went to trial primarily to test the legal claim that his speech/conduct was protected by the First Amendment of the United States Constitution, the Court should allow for a reduction. Johnson has now shown sufficient contrition to warrant a two-point reduction under U.S.S.G. § 3E1.1. See United States v. Narramore, 36 F.3d 845, 847 (9th Cir. 1994); United States v. Hill, 953 F.2d 452, 461 (9th Cir. 1991). Cf. United States v. Casterline, 103 F.3d 76, 79 (9th Cir. 1996) (affirming district court's refusal to grant reduction and noting that short letter to the sentencing judge was "something, but not much").

F. If Necessary, the Court Should Depart Below the Sentencing Range

Under Guideline Section 5K2.0 and its implementing statute, a departure is appropriate when "there exists an aggravating or mitigating circumstance of a

kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines." 18 U.S.C. § 3553(b). The defendant bears the burden to prove by a preponderance of the evidence that the circumstances of his or her case warrant a downward departure. See United States v. Anders, 956 F.2d 907, 911 (9th Cir. 1992).6

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> 6 "A district court's decision to depart from the Guidelines . . . will in most cases be due substantial deference, for it embodies the traditional exercise of discretion by a sentencing court." Koon v. United States, 518 U.S. 81, 116 S.Ct. 2035, 2047-48, 235 L.Ed.2d 392 (1996).

The Supreme Court has set forth principles governing when departure from the applicable guideline is authorized, based on whether the factor relied upon by the sentencing court is forbidden, encouraged, discouraged, or unmentioned by the Guidelines. See Koon v. United States, 518 U.S. 81, 116 S.Ct. 2035, 2045, 235 L.Ed.2d 392 (1996). The sentencing court first must determine what factors take the case outside the Guidelines' "heartland" and make it special or unusual. If the Sentencing Commission has forbidden departure based on the factor, it cannot be used as a basis for departure. If the factor is an encouraged factor, the court is authorized to depart only if the applicable guideline does not already take it into account. If the factor is discouraged or already taken into account by the applicable guideline, the court should depart only if the factor is present to an exceptional degree or somehow makes the case different from the ordinary case where the factor is present. If the factor is unmentioned in the Guidelines, the court must decide whether it is sufficient to take the case out of the Guideline's heartland. See generally United

States v. Cubillos, 91 F.3d 1342 (9th Cir. 1998); United States v. Sablan, 114 F.3d 913, 916 (9th Cir. 1997) (en banc).

In determining whether a departure is warranted under U.S.S.G. § 5K2.0, sentencing court "may consider, without limitation, any information concerning the background, character and conduct of the defendant, unless otherwise prohibited by law." U.S.S.G. § 1B1.4. Except for those factors categorically proscribed by the Sentencing Commission as a basis for departure, e.g., race, sex, and national origin, the Guidelines "place essentially no limit on the number of potential factors that may warrant departure." United States v. Mendoza, 121 F.3d 510, 513 (9th Cir. 1997) (quoting Koon, 116 S.Ct. at 2050). A sentencing court considering a departure should ask the following questions:

> "1) What features of this case, potentially, take it outside the Guidelines' 'heartland' and make of it a special, or unusual, case?

> "2) Has the Commission forbidden departures based on those features?

> "3) If not, has the Commission encouraged departures based on those features?

> "4) If not, has the Commission discouraged departures based on those features?"

Sablan, 114 F.3d at 916 (citing United States v. Rivera, 994 F.2d 942, 949 (1st Cir 1993)) .

A downward departure is sometimes appropriate based upon combination of offender characteristics and other circumstances -- even if no departure would be granted based upon a single factor -- so long as the combination of factors take the case outside the "heartland" cases covered by

the guidelines. See, e.g., United States v. Rioux, 97 F.3d 648 (2d Cir. 1996); United States v. Lombard, 72 F.3d 170, 183-84 (1st Cir. 1995); United States v. Blackwell, 897 F.Supp. 586 (D. D.C. 1995); United States v. Shadduck, 889 F.Supp. 8, 11-12 (D. Mass. 1995), modified on other grounds, 112 F.3d 523 (1st Cir. 1997). Here, a combination of several factors warrants a departure below the standard sentencing range for this offense.

> > 1. Physical and Mental Health Conditions

It is clear that a defendant's physical and emotional condition is only relevant to a sentencing determination in an "extraordinary case." See, e.g., United States v. Kipitzke, 130 F.3d 820 (8th Cir. 1997); United States v. Core, 125 F.3d 74 (2nd Cir. 1997); United States v. Brock, 108 F.3d 31 (4th Cir. 1997). Chapter Five provides that an offender characteristic, such as a mental condition, may be relevant if the characteristic "is present to an unusual degree and distinguishes the case from the 'heartland' cases." U.S.S.G. § 5K2.0.

Johnson's psychological and emotional condition as reflected in the attached letters is unusual in a case of this sort. In particular, this Court should consider the psychological evaluation of Dr. Frederick Wise, a clinical psychologist and Clinical Associate Professor of Psychiatry at the University of Washington. See Appendix B. After considering considerable medical documentation and after conducting a psychiatric interview, Dr. Wise opines that Johnson is suffering from a constellation of physical and emotional problems. As the doctor explains:

> In summary, Mr. Johnson presents as a very interesting diagnostic picture of a mix of psychiatric and medical disorders. I believe that the diagnosis of Tourette's Syndrome is accurate and that the stereotypic/ritualized behaviors noted since childhood are consistent with Obsessive-Compulsive Disorder. I do not believe that Schizophrenia is an accurate diagnosis and there is simply insufficient evidence to confirm Attention Deficit/Hyperactivity Disorder which he has been previously diagnosed with. It is more likely that the OCD and Tourette's could account for the symptoms with which these other diagnoses have been based on. As a clinical neuropsychologist, I have seen many individuals with these diagnoses and it is quite typical that there are ancillary personality diagnoses given the socialization that they receive for being "odd or different" from peers and others. I would concur with the past diagnosis of Personality Disorder, Not Otherwise Specified and believe that the primary features are narcissistic, antisocial, and schizotypal. I believe that his behavior related to Internet chat groups and ultimately his Instant Offense is primarily a product of the above diagnoses, particularly the personality disorder. As such he is undersocialized and it appears that he has spent much of his recent years in a fantasy world of Internet chat groups where his intellectual prowess and anti-authoritarian values are his primary tools for obtaining positive reinforcement from others like him. He can "show off" in a narcissistic manner which does not involve the negative reinforcement he has received for his odd appearance and mannerisms (i.e. tics). I do not have sufficient historical information which is corroborated by records to offer an opinion with reasonable psychological certainty about future dangerousness, but my clinical impression was that his threats were more part of a fantasy than an actual plan to harm others. He clearly needs ongoing psychopharmacological intervention for his psychiatric disorders and it is likely that this will significantly decrease the "rage outbursts" which have been noted. Parenthetically, it is my opinion that these outbursts have an organic etiology rather than are primarily related to personality variables.

Appendix B at 4.

Carl Johnson's psychological and emotional condition is unusual in a case of this sort. It is clear that Johnson has been suffering from several physical and emotional disorders and that he is in far more emotional distress than the typical offender in such circumstances. Moreover, Johnson's condition certainly

renders him more susceptible to additional emotional problems and abuses while he is in custody. See, e.g., Koon, 116 S.Ct. at 2053.7

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> 7 The district court has authority to depart downward on the basis of diminished capacity if the offense was nonviolent. See U.S.S.G. § 5K2.13. Because "nonviolent offense" is not defined in the guidelines, the Ninth Circuit has deferred to the definition of "crime of violence" found in U.S.S.G. § 4B.1.2(a) and federal criminal statutes. See United States v. Cantu, 12 F.3d 1506, 1511 (9th Cir. 1993); United States. v. Borrayo, 898 F.2d 91, 94 (9th Cir. 1989). While there is evidence that Johnson's capacity was diminished, his offenses are likely considered crimes of violence under Ninth Circuit standards.

For these reasons alone, this Court should impose a downward departure.

> > 2. Aberrant Behavior

It is noteworthy that Johnson has engaged in no other behavior of this sort during the first 48 years of his lifetime. In this regard, his conduct is "aberrant" and likely the product of several unusual pressures that he was facing during the last several years. Aberrant behavior is a permissible basis for departure. See United States v. Takai, 941 F.2d 738, 743 (9th Cir. 1991).

In Takai, the court determined that there was aberrant behavior where defendants, who were otherwise admirable law-abiding people, engaged in effort to obtain green cards by bribing an Immigration and Naturalization Service official. See 941 F.2d at 740-41. The conduct extended over a number of days, but the court found that the defendants' actions were self-contradictory, naive, unreflective, and somewhat government-induced. See 941 F.2d at 74344. Although the offense was committed in a series of acts over an eight-day period, the court said that: "In this case there are two crimes -- the forming of the conspiracy and the offer of the money. The conspiracy and the offer are so

closely related that for the purposes of deciding whether they were aberrant they constitute a single act." 941 F.2d at 743.

The Ninth Circuit provided further explication regarding these matters in United States v. Colace, 125 F.3d 1229 (9th Cir. 1997). There, the defendant was arrested after committing twelve separate bank robberies over a two-year period. As explained by the Ninth Circuit, the district court "plummeted a dizzying nineteen levels below the floor of the applicable sentencing range based entirely on its determination that Colace's behavior was aberrant." 126 F.3d at 1231.

The court of appeals noted as follows:

> We have held that there is an "aberrant behavior spectrum" in determining when the aberrant behavior departure should apply. United States v. Takai, 941 F.2d 738, 743 (9th Cir. 1991). Courts may consider a "convergence of factors" and should take into account the "totality of circumstances" when considering where a defendant's behavior falls along the spectrum and whether to grant a downward departure. United States v. Fairless, 975 F.2d 664, 667 (9th Cir. 1992). But there is a limit; when all is said and done the conduct in question must truly be a short-lived departure from an otherwise law-abiding life.

126 F.3d at 1231. The court then reversed the district court's finding, noting that the defendant had been involved in a consistent pattern of criminal behavior. See id (explaining that a single episode of criminal conduct normally a single crime, is a sign that an aberrant behavior departure may be warranted).

Here, the defense does not claim that Carl Johnson engaged in one act of criminal conduct. Rather, he involved himself in a single episode of criminal conduct and that conduct that was "aberrant" in light of his previous law-abiding life. This episode was a product of foolishness as well as Johnson's

disappointments based upon the purported failings of the Government. While this might not be a case where the aberrant conduct departure, in and of itself, would allow a significant reduction in sentence. Such a reduction is warranted in light of the other unusual factors at play in this case.

G. Recommended Conditions

The probation officer has recommended several conditions that seem appropriate in a case of this sort. However, the defense believes that the Court should strike proposed Conditions 7, 9, and 10.

First, the probation officer has suggested a financial condition (Condition 7) that does not seem warranted in a case of this sort. The defense cannot see why Johnson should be prohibited from incurring credit charges while on supervision.

Second, the probation officer has suggested two stringent conditions (Conditions 9 and 10) that would ensure that Johnson has no access to computer or computer software of any type. These conditions are overbroad and in violation of the First Amendment. While the defense can appreciate the need to limit Johnson's access to the internet (Condition 8), the Court should not impose conditions that preclude him from using a computer in all other circumstances .

V. CONCLUSION

For the foregoing reasons, and in the interests of justice, the defense urges the Court to impose a sentence of not more than 24 months in custody with credit for time already served.

DATED this 8 day of June, 1999.

> Respectfully submitted,

> [Signature]

> TODD MAYBROWN, WSBA #18557
> Attorney for Carl Johnson

Appendix A: Supporting letters, 10 pages, omitted.

Appendix B: Psychological evaluation, 4 pages, omitted.

Appendix C: Carl Johnson letter of apology to Judge Arnold, 2 pages, omitted.

[End]

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