Thursday, December 29, 2005

Guilty Pleas—Richard Causey Update and Anthony Scott Clark

Now that Richard Causey’s plea agreement has been made , it bears mentioning what is in it.

, it was widely reported that Mr. Causey would receive a seven-year sentence, with the possibility of having the sentence reduced to five years if his information proved to be useful to the prosecution. However, the sentencing recommendation was made under (c)(1)(C) of the Federal Rules of Criminal Procedure.[1] Under this rule, an “attorney for the government and the defendant’s attorney … may discuss and reach a plea agreement. The court must not participate in these discussions. If the defendant pleads guilty … to either a charged offense or a lesser or related offense, the plea agreement may specify that an attorney for the government will … agree that a specific sentence or sentencing range is the appropriate disposition of the case … (such a recommendation or request binds the court once the court accepts the plea agreement).”

However, the court does not accept the plea agreement until sentencing. This means that Mr. Causey is “guilty,” but the court can decide that it will not accept the deal struck by the government and Mr. Causey, and enter its own sentence, perhaps departing upwards from the sentencing recommendations provided by the government. The plea agreement does state that “[t]he Defendant and the Department [of Justice] agree that if the Court refuses to accept the plea agreement with this agreed-upon sentence [of 84 months in prison], the agreement will be null and void.”[2] If the court does accept the plea agreement, “the Court will be required to impose a sentence of 84 months and to order the agreed-upon forfeiture amount [of $1.25 million], or the plea agreement will be null and void,” unless Mr. Causey’s information is useful.[3] If the information is useful, and if the court does accept the plea agreement, “the Department in its sole and exclusive discretion may move the Court … to depart downward from the 84-month agreed-upon sentence. … [R]egardless of any such motion that the Department may make, [Mr. Causey] cannot and will not be sentenced to a period of incarceration of less than 60 months.”[4]

We previously discussed the mechanisms of downward departures on .

Mr. Causey’s was not the only guilty plea entered into yesterday. A 21-year-old man from Beaverton, Oregon has pleaded guilty in the Federal District Court in San Jose, California to “launching a computer attack against the Internet auction site eBay in July and August 2003.”[5] Anthony Scott Clark pleaded guilty to a criminal information “charging him with intentionally in violation of (a)(5)(A)(i), (a)(5)(B)(i), and (c)(4)(A).”[6]

According to the plea agreement, Mr. Clark admitted participating “with several others in distributed denial of service (‘DDOS’) attacks on the Internet against eBay, Inc. and other entities.”[7] Accumulating approximately 20,000 “bots” by using a worm program “that took advantage of a computer vulnerability in the Windows Operating system,” Mr. Clark and his accomplices then instructed the “bots” to launch DDOS attacks on the nameserver for eBay.com, which impaired the infected computers and eBay.com.[8]

While the maximum penalty for a violation of section 1030 is a fine, imprisonment for up to 10 years, or both, Mr. Clark may have pleaded guilty in order to testify against his accomplices in exchange for a lower plea. The plea agreement, which is not publicly available, could have been done under Rule 11(c)(1)(C) as Mr. Causey’s was, or it could have been done under Rule 11(c)(1)(B), which states that the government will “recommend, or agree not to oppose the defendant’s request, that a particular sentence or sentencing range is appropriate or that a particular provision of the Sentencing Guidelines, or policy statement, or sentencing factor does or does not apply.”

Unlike Rule 11(c)(1)(C), however, a plea agreement made under Rule 11(c)(1)(B) is not binding on the court. Furthermore, if the plea is made under Rule 11(c)(1)(B), “the court must advise the defendant that the defendant has no right to withdraw the plea if the court does not follow the recommendation or request.”[9] This advisement is different than what is required if the court decides not to accept a plea agreement under Rule 11(c)(1)(C). In that case, the court must do the following on the record and in open court: inform the parties that the court has rejected the agreement; advise the defendant personally that the court is not required to follow the plea agreement, giving the defendant an opportunity to withdraw the plea; and advise the defendant personally that if the plea is not withdrawn, the court may impose a less-favorable sentence than that contemplated in the agreement.[10]


[1] See United States v. Causey, No. CR-H-04-25(S-2), Plea Agreement 1 (S.D. Tex. 2005).
[2] Id. at 2.
[3] Id. at 2.
[4] Id. at 3.
[5] US Attorney’s Office, , Dec. 28, 2005.
[6] Id.
[7] Id.
[8] Id.
[9] Laurie Levenson, FEDERAL CRIMINAL RULES HANDBOOK 117 (2005 ed.).
[10] Id. at 118.

posted by McNabb Associates, P.C. @ 1:20 PM