23 June 1998

    Date: Tue, 23 Jun 1998 16:31:10 -0700
    To: cypherpunks@cyberpass.net, lacc@suburbia.net
    From: Greg Broiles <gbroiles@netbox.com>
    Subject: Jim Bell's conditions of probation, appeal

    (More information about Jim Bell is available at
    <http://www.parrhesia.com/jimbell/> and <http://www.jya.com/jdbfiles.htm>.)

    I took a look at Jim Bell's appellate file at the Ninth Circuit today - am
    planning to go back and get copies of the full filings (ran out of
    nickels), but this is the substance of what I found -

    Jim was sentenced to 11 months prison time (now already served), and three
    years of supervised release. The "standard terms" (imposed on all
    defendants who get supervised release from that court) were:

    1.	the defendant shall not leave the judicial district without the
    permission of the court or probation officer;

    2.	the defendant shall report to the probation officer and shall submit a
    truthful and complete written report within the first five days of each month;

    3.	the defendant shall answer truthfully all inquiries by the probation
    officer and follow the instructions of the probation officer;

    4.	the defendant shall support his or her dependents and meet other family
    responsibilities;

    5.	the defendant shall work regularly at a lawful occupation unless excused
    by the probation officer for schooling, training, or other acceptable reasons;

    6.	the defendant shall notify the probation officer 10 days prior to any
    change in residence or employment;

    7.	the defendant shall refrain from excessive use of alcohol;

    8.	the defendant shall not frequent places where controlled substances are
    illegally sold, used, distributed, or administered;

    9.	the defendant shall not associate with any persons engaged in criminal
    activity, and shall not associate with any person convicted of a felony
    unless granted permission to do so by the probation officer;

    10.	the defendant shall permit a probation officer to visit him or her at
    any time at home or elsewhere and shall permit confiscation of any
    contraband observed in plain view of the probation officer;

    11.	the defendant shall notify the probation officer within seventy-two
    hours of being arrested or questioned by a law enforcement officer;

    12.	the defendant shall not enter into any agreement to act as an informer
    or a special agent of a law enforcement agency without the permission of
    the court;

    13.	as directed by the probation officer, the defendant shall notify third
    parties of risks that may be occasioned by the defendant's criminal record
    or personal history or characteristics, and shall permit the probation
    officer to make such notifications and to confirm the defendant's
    compliance with such notification requirement.

    The court also imposed a number of special conditions suggested by the
    probation officer. The probation officer recommended that Jim be sentenced
    to 27 months prison, arguing against both the prosecution (!!) and the
    defense, who agreed that Jim should be sentenced according to the conduct
    he'd plead guilty to, rather than adopt the probation office[r]'s
    suggestion that Jim be sentenced as if he'd plead guilty to a different
    crime (threatening a government agent).

    The additional terms are as follows:

    1.	The defendant be prohibited from possessing a firearm or destructive
    device as defined in Title 18, United States Code, Section 921.

    2.	The defendant shall submit to a search of his person, residence, office,
    property, or vehicle conducted in a reasonable manner and at a reasonable
    time by a probation officer.

    3.	The defendant shall participate as directed by the U.S. Probation
    Officer in a program approved by the Probation Office for treatment of
    narcotic addition [sic] or drug dependency, which may include testing to
    determine if the defendant has reverted to the use of drugs. _The defendant
    shall also abstain from the use of alcohol and/or other intoxicants during
    the term of supervision._

    4.	The defendant SHALL [sic] submit to mandatory drug testing pursuant to
    18 U.S.C. section 3563(a)(4) and 18 U.S.C. section 3583(d).

    5.	The defendant shall participate in a mental health program approved by
    the United States Probation Office. THe defendant shall authorize the
    release of the psychological evaluation performed by Dr. Sheppard Salusky
    on September 13, 1997, to other mental health practitioners as directed by
    the probation office [handwritten from here], and to the Probation Office
    for purposes of determining an appropriate mental health program.

    6.	The defendant shall provide the Probation Officer with access to any
    requested financial information, including authorization to conduct credit
    checks and obtain copies of defendant's Federal Income Tax Returns.

    7.	The defendant shall be prohibited from incurring new credit charges or
    opening additional lines of credit [handwritten from here], without
    approval of Probation Department.

    8.	All employment of the defendant shall be subject to the prior approval
    of the U.S. Probation Officer.

    9.	The defendant shall cooperate fully and truthfully with the IRS,
    including filing all due tax returns, paying all required taxes, and fully
    disclosing assets and information as requested by the IRS.

    10.	The defendant shall cooperate fully and truthfully with the Bankruptcy
    Court, including disclosing assets and information as required by the Court.

    11.	The defendant shall provide full cooperation and assistance to Federal
    agents in locating and recovering any buried chemicals, including the
    chemical Mercaptan.

    12.	The defendant shall provide the Probation Office with the name and
    Internet address of any Internet account use [sic].

    13.	The defendant shall not possess or use a computer or use the Internet
    without permission of the Probation Officer.

    14.	The defendant shall not possess or use any computer encryption software
    or programs, remailers, or anonymizers.

    15.	The defendant shall not possess or use address or locator computer
    database files, such as DMV, voter registration, national phone
    directories, real estate records, etc.

    16.	The defendant shall not advocate or propose assassinations or the
    violent overthrow of the Government, or provide any assistance to any
    person involved in such a scheme.

    17.	The defendant shall not possess any chemicals, compounds, or equipment
    for use in making chemicals or compounds.

    18.	The defendant shall not possess carbon fiber or nickel carbon fiber.

    19.	The defendant shall not participate in illegal activities or with
    groups which are or are likely to engage in illegal activities, such as

    "Common Law Courts" and Patriot Militia.

    20.	The defendant shall not possess, obtain, or disseminate the home
    address or phone number of any Government employee (absent their express
    permission).

    21.	The defendant shall not (handwritten: "knowingly") be within 200 yards
    of the residence of any Government employee (absent their express permission).

    22.	The defendant shall not be on or (handwritten - crossed out typed
    "near", added "use or be in") any Federal property or building without a
    previously scheduled appointment and/or approval of the Probation Office.

    23.	The defendant shall not use aliases or false identities, to include
    communicating on the Internet, using anything other than his correct name.

    24.	The defendant shall not possess any lockpicking tools.

    XX.	The defendant shall pay immediately restitution in the amount of
    $1,359.00. Any unpaid amount is to be deducted from defendant's recovery
    payment program while incarcerated. The remaining balance is to be paid
    during any period of supervision in monthly installments as directed by
    defendant's United States Probation Officer.

    The substance of Jim's appeal (presented on his behalf by the federal
    public defender) is as follows:

    1.	That the special conditions constitute an abuse of discretion and are
    not reasonably related to legitimate state ends.

    2.	That the special conditions constitute a violation of Jim's right to due
    process, in that they are vague, overbroad, unduly burdensome, and subject
    to arbitrary enforcement by the probation office.

    3.	That the special conditions violate Jim's First Amendment rights to free
    speech, association, and privacy.

    4.	That the release of Jim's psychiatric interview/exam to the probation
    office (where the plea agreement specified that it would *not* be released
    to them) constitutes an abuse of discretion and a violation of the plea
    agreement.

    5.	That the special conditions and the release of the psychiatric data
    should be stayed pending appeal.

    The substance of the government's argument in response is:

    1.	That the special conditions can't be appealed until/unless Jim violates
    them;

    2.	That the conditions are constitutional and reasonably related to
    protecting the public and/or rehabilitating Jim.

    The court denied the request to stay the sentence/conditions/release until
    the appeal is final.

    Also part of the court's file was an excerpt from the record, which
    included a transcript of Jim's guilty plea and of his two sentencing
    hearings. The transcript of the guilty plea reveals that Jim was under the
    influence of tranquilizers at the time of his plea, and indicated that he'd
    appreciate medical or mental health assistance (didn't indicate which),
    that he felt his judgement was poor, but that he wanted to go ahead and
    plead guilty. The transcripts of the two sentencing hearings reveal that
    there was a considerable disparity between the recommendations of the
    prosecution and the defense (who agreed that Jim was eligible for a
    sentence of between 6 and 12 months) and the probation office, who thought
    he was eligible for a sentence of between 8 and 14 months, but wanted the
    judge to sentence him to 27 months in an "upward departure" from the

    guidelines due to Jim's allegedly egregious conduct. The judge ended the
    first sentencing hearing with the comment that he thought that there was
    information which hadn't been made available to him, that he wanted to hear
    everything that the different parties knew, and asked them all to come back
    two weeks later with full information.

    The transcript of the second hearing is somewhat abbreviated, and does not
    disclose the information the judge was apparently seeking; however, there
    was a hearing which was unrecorded (or the recording is not part of the
    public records) referred to in the appellate briefs. Apparently, in that
    secret hearing, it was revealed that Jim was debriefed by the FBI, and he
    turned over his PGP passphrase(s) to them so that they could decrypt his
    files; and that a report prepared by the FBI as a result of that
    information was erroneously provided to the probation office. The judge
    offered to let Jim withdraw his guilty plea and/or recuse the court so that
    Jim could be tried before another judge, apparently as a result of any
    possible bias created by the probation officer's release of information
    which shouldn't have been made available to the officer or the judge. Jim
    refused both offers, and was sentenced to 11 months. The appellate briefs
    also reveal that the various chemicals taken from Jim's house were tested
    by the Army; the incriminating substances found were hydrogen cyanide and a
    precursor to a sarin derivative/analog, which would've had 1/6 the potency
    of "ordinary" sarin. (perhaps someone with a chemistry background can
    provide clarifying information here, I can't comment on the sanity/accuracy
    of those comments.)

    During the sentencing, there was discussion about the scope of the
    restrictions on Jim's conduct on/near Federal property - the probation
    officer explicitly said (and the judge approved) that Jim needs permission
    from her before he can go to a post office to buy a book of stamps.

    It'll be interesting to see what the 9th Circuit does with this; also, to
    see what Jim's been charged with violating. There's a short store re his
    rearrest at <http://www.columbian.com>, more details should be available
    after his hearing this afternoon.

    --
    Greg Broiles        |History teaches that 'Trust us'
    gbroiles@netbox.com |is no guarantee of due process.
                        |_Kasler v. Lundgren_, 98 CDOS 1581
                        |(March 4, 1998)