UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

HONORABLE MANUEL L. REAL, JUDGE PRESIDING

REPORTER'S TRANSCRIPT OF PROCEEDINGS

Sentencing

Los Angeles, California

February 27, 1995

Transcription Errors Preserved

LOS ANGELES, CALIFORNIA, on Monday, February 27, 1995

Approximately 1:30 p.m.

THE CLERK: Item No. 9. CR 93-376-R. United States of America versus Kevin Lee Poulsen.

Counsel, your appearances, please.

MR. SCHINDLER: Good afternoon, your Honor.

David Schindler and Debra Yang on behalf of the United States.

MS. YANG: Good afternoon, your Honor.

MR. BRENNEN: Good afternoon, your Honor.

Michael Brennen on behalf of Mr. Poulsen. He is present, and we're ready to proceed.

THE COURT: Mr. Brennen, I'm going to continue the matter to April 10th, because I propose to depart upward. I don't think that the consideration that's been given to this case and the possible effects of this case on society in general, most particularly on some agents in particular, calls for a more serious sentence than what is involved here. All right. April 10th at 1:30 p.m.

MR. BRENNEN: Your Honor, in order that I might be able to file something in response to the Court's notice for the intention to upwardly depart, if the Court might give me a little more guidance, I would be glad to file something prior to that hearing date.

THE COURT: Well, I think the defendant's actions are more serious than the guidelines; taking into account in this kind of, quote, computer crime. I think the guidelines were not really designed for this kind of a matter, where this person could have put agents in jeopardy, and certainly had a situation which he could have had the administration of justice in turmoil and upset. He wasn't just hacking.

MR. BRENNAN: All right. Your Honor, I'll prepare something prior to the hearing. Thank you.

THE COURT: Thank you, your Honor.

MR. SCHINDLER: Thank you, your Honor.

THE COURT: I want the government's input in that, too.

MR. SCHINDLER: Yes, your Honor.

(Proceedings concluded.)

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

HONORABLE MANUEL L. REAL, JUDGE PRESIDING

REPORTER'S TRANSCRIPT OF PROCEEDINGS

MONDAY, APRIL 10, 1995

LOS ANGELES, CALIFORNIA

Transcription Errors Preserved

LOS ANGELES, CALIFORNIA, MONDAY, APRIL 10, 1995

(COURT IN SESSION at 10:00 a.m.)

THE CLERK: Item number 10, United States of America versus Poulson.

MR. SCHINDLER: David Schindler, Debra Yang, on behalf of the United States.

MR. BRENNAN: Mike Brennan, on behalf of defendant Poulson, who's present, in custody.

THE COURT: All right.

This is the time set for hearing on the report of the probation officer and sentence of defendant Kevin Lee Poulson.

Is there any legal cause why sentence should not be imposed?

MR. BRENNAN: No, your Honor.

THE COURT: Anything you want to say on behalf of the defendant, Mr. Brennan?

MR. BRENNAN: Yes, your Honor.

Initially, there are some things I'd like to take up with respect to the defendant's sentencing memorandum that we filed prior to the initial sentencing hearing. There are some other matters that arise out of the joint statement of fact that the parties filed and I would like to address those at sidebar if the Court would permit.

With respect to the initial matters, we filed, initially, objections to the information contained in paragraph 34 of the presentence report that indicated Mr. Poulson fled Northern California after he had been indicted.

That portion of the presentence report has not been amended to reflect the fact he did not flee after having been indicted. It does still contain the statement that he fled. We object to that characterization.

He left Norther California in approximately May of '88. He was not indicted in the norther district until October of '89. At that time, that was a sealed indictment. So he had been in Souther California for close to two years before that indictment was unsealed.

So we would object to the characterization that he fled Northern California in some anticipation of something that was going to happen some 18 months later.

With respect to paragraph 41, again, we object to the statement that he physically intercepted a wire-tap in Malibu, California.

In paragraph 61, we assert that he did not attempt to evade arrest on September 1, 1990. He was contacted by the officers and he complied with their directions at that time.

Those our the initial matters we would raise, prior to the last sentencing hearing, your Honor. The other matters, I would prefer to discuss at sidebar, if you would.

THE COURT: All right. Come on up.

(SIDEBAR DISCUSSION BETWEEN THE COURT AND COUNSEL; HELD ON THE RECORD.)

(PROCEEDINGS RESUMED IN OPEN COURT AS FOLLOWS:)

THE COURT: Anything further, Mr. Brennan?

MR. BRENNAN: No, your Honor.

We will submit it, based upon those statements.

THE COURT: Mr. Poulson, anything you want to say in your own behalf?

DEFENDANT POULSEN: No, your Honor.

THE COURT: All right.

I think there are matters that have not been considered by the Sentencing Guidelines here, in that there was a very fair - at least, very potential danger to law enforcement, to law enforcement, not only in this country but also in other countries, where this man had hacked into informatign on foreign intelligence security matters.

Also, that he had gone beyond, I think the consideration of what the sentencing Guidelines were in the ordinary hacking case. I think this is an extraordinary hacking case, in which he got into all kinds of government agencies and government - and defense agencies, and that required the government and the defense agencies to change their whole operations, in many respects; because not only is he privy to the information, but also, it has been shared with his co-conspirators or cohorts in this matter.

So I'm going to go to 21. What's the sentencing range for 21?

MR. SCHINDLER: Depending, your Honor, if the Court determines that the criminal history category is correct.

THE COURT: All determinations are correct.

MR. SCHINDLER: Criminal history category of two?

THE COURT: Yes.

MR. SCHINDLER: Your Honor, 41 to 51 months.

THE COURT: It is the judgement and sentence of this Court that the defendant be committed to the custody of the Bureau of Prisons for a period of 51 months.

Upon the defendant's release from custody, it is ordered that there be a supervised release period of three years.

It is further ordered that he shall pay restitution to KRTH-FM, located at 5901 Venice Boulevard, the sum of $1,000; to KPRW-FM, $20,000; to KISS-FM, located at 6255 Sunset Boulevard, $36,925.69.

Upon release from custody, the defendant shall be subject to the following conditions of supervised release: In addition to the restitution, the defendant shall comply with the rules and regulations of the United States Probation Office and General Order 318.

Defendant is directed to provide to the probation officer accurate financial statements, with all sources and amounts of income, all expenses of the defendant, and provide federal and state income tax returns as requested by the probation officer.

Defendant shall not obtain or possess any driver's license, social security number, birth certificate, passport, or other forms of identification, without prior approval of the probation officer.

Defendant shall not use for any purpose or any manner any name other than his legal, his true, legal name.

Defendant shall not on obtain or possess any computer or computer-related equipment or computer programs without the authority and permission of the probation officer.

Defendant shall not seek to maintain employment that allows him access to computer equipment without prior approval of the probation officer; and defendant shall inform any employer of his arrest and conviction at the direction of probation officer.

All fines and costs of supervision and imprisonment are waived.

Defendant shall pay to the United States a special assessment of $350.

Bond is exonerated and defendant is remanded to custody for service of the sentence.

MR. SCHINDLER: In the interest of justice, the government moves for dismissal of the balance of the counts.

THE COURT: Motion granted.

MR. BRENNAN: Your Honor, the presentence report says that Mr. Poulson has been in custody since April 11; would the Court indicate in the calculation for time in custody that he be given credit for his time in custody?

THE COURT: He's entitled to that under the law. The Bureau of Prisons has to take care of that.

MR. BRENNAN: Thank you, your Honor.

MR. SCHINDLER: Thank you, your Honor.

(END OF PROCEEDINGS.)