From: "Gerard D. Cochrane Jr." <gdcochra@utep.edu>
Date: Mon, 30 Sep 1996 11:21:57 +0800
To: Brian Davis <bdavis@thepoint.net>
Subject: Re: "Confessing to a felony"
In-Reply-To: <Pine.HPP.3.95.960929025720.7234C-100000@mail.utep.edu>
Message-ID: <Pine.HPP.3.95.960929184954.3843A-100000@mail.utep.edu>
MIME-Version: 1.0
Content-Type: text/plain



Sorry about this message that went out.  Looks like I got a few idiot
sending messages from a hacked account. Sorry for the waste of bandwith.  

Thanks. 
Jerry

On Sun, 29 Sep 1996, Gerard D. Cochrane Jr. wrote:

> On Sun, 29 Sep 1996, Brian Davis wrote:
> 
> > On Fri, 27 Sep 1996, Timothy C. May wrote:
> > 
> > > At 5:43 PM -0400 9/27/96, Black Unicorn wrote:
> > > >On Thu, 26 Sep 1996, Timothy C. May wrote:
> > > 
> > > >His admission that he used the notebook.  Recovering the notebook and
> > > >finding the software.  Interviewing the Customs agent working at the time.
> > > 
> > > His admission that he used _which_ notebook? Chain of evidence again.
> > > 
> > > Finding _which_ software?
> > > 
> > > (As for the Customs agent, I can assure you that my luggage has never been
> > > checked upon either leaving the U.S. or entering the U.S. Even if U.S.
> > > Customs could figure out who was working at the time I putatively entered
> > > the country, and even if he remembered _me_, months later, just what
> > > records would he have, and how would they stand up in court?)
> > > 
> > > Hearing me say I "exported crypto," a hearsay claim, and happening to find
> >                                       ^^^^^^^^^^^^^^^
> > It is an admission against interest and a confession; it is admissible 
> > against the speaker in a prosecution against him for "exporting crypto"
> > from a strictly evidentiary standpoint.
> > 
> > > one or more laptops at my home, weeks or months later, implies nothing. (To
> > > make the point graphically, suppose the raiding party finds _several_
> > > laptops or notebooks...do they assume _all_ were taken out of the country,
> > > or do they pick the one with the most incriminating software on it? Answer:
> > > Unless they can _prove_ one of them was used, and that it had not been
> > > _changed_ since the putative event (highly unlikely), they cannot simply
> > > _assume_ one of them was taken out.
> > 
> > Your understanding of evidence is inaccurate.  The evidence re the 
> > laptop[s] would be admissible and the parties would argue about what it 
> > meant.  The jury is entitled to draw common sense inferences.  That might 
> > be easy to do in a case in which a defendant has confessed....
> > 
> > 
> >  
> > > (Seems to me to be an open and shut case. "Oh, _that_ laptop? That's not
> > > the one I took to Europe."   "Oh, you say this laptop has PGP 5.9 on it?
> > > So? I installed it last week. My trip to Europe was last summer.")
> > 
> > So now you, as your own lawyer (apparently) have decided to take the 
> > stand and testify.  Remember that the prosecutor gets to cross-examine 
> > you.  Things are about to get ugly.... 
> > 
> > 
> > > 
> > > >Considering the headaches required for airline travel today, it's not like
> > > >there aren't serious records abound.
> > > 
> > > Such as? I recall no inspections of my luggage, no inventorying of the
> > > serial numbers of my laptops, no inspection whatsoever of my
> > > magneto-optical drives (which were in my carry-on luggage, and not even
> > > glanced at, in the box they were in). X-rays would not prove what was taken
> > > in or out of the country, even if "x-ray escrow" were implemented (which it
> > > is not, according to all reports I have heard, and based on some practical
> > > limits on storage), I doubt the records of a trip, say, last summer (of
> > > '95) could be retrieved and prove that a particular laptop was taken out.
> > > Not to mention that the software allegedly taken out might have been on any
> > > kind of media, none of them distinguishable with an x-ray machine.
> > 
> > Circumstantial evidence is admissible if probative of a fact at issue in 
> > the case.  Evidence that you took a laptop out of the country is 
> > probative of the allegation that you exported crypto using a laptop.
> > 
> > 
> > 
> > > >For crying outloud, he admitted to the world that he took the software
> > > >out.  I put that in front of a jury and it looks just like the typical
> > > 
> > > "For crying out loud" is bluster, not legal argument.
> > 
> > And your understanding of evidence shows a misunderstanding of how the 
> > rules of evidence actually work in a courtroom. 
> > 
> > 
> > > >stupid bragging criminal.  Any defense about "I was just kidding" or "The
> > > >message was forged" might be interesting, but it will sound like
> > > >technical-mumbo-jumbo to a jury.  Yes, it would convince >ME< that was a
> > > 
> > > Legal proof is still needed. Given only a nebulous statement like "I
> > > exported crypto in violation of the ITARs," or "I shipped PGP to Europe,"
> > > is not enough for a case even to be brought to trial.
> > 
> > You are absolutely wrong.  It may not be enough for a conviction, but it 
> > will beat a Rule 29 motion (Motion for a judgment of acquittal) and get 
> > the case to the jury.
> > 
> > > (If it reached trial, I would expect a defense attorney to move for
> > > dismissal. Absent any evidence that a crime occurred, absent any proof
> > > beyond the nebulous hearsay statement of a "braggart," there is simply no
> > > basis for criminal action.)
> > > 
> > > "Stupid bragging criminals" may be common, but bragging is not in and of
> > > itself illegal. There still has to be evidence of a crime.
> > 
> > Must a jury believe that you were "just bragging" because you now, in a 
> > criminal trial, say that you were? 
> > 
> > 
> > > "Produce the body."
> > 
> > Perry Mason is only active in re-runs.
> > 
> > > 
> > > (I can say I personally whacked Jimmy Hoffa. Absent other evidence, or the
> > > body, or witnesses, does this mean I'll be found guilty? To use BU's
> > > phrasing, "for crying out loud.")
> > 
> > That's where prosecutorial discretion comes in and a judge's and jury's 
> > common sense comes in if the prosecutor runs amok.
> > 
> > BTW, I am far more willing to believe you were bragging about whacking 
> > Jimmy Hoffa than about exporting crypto.  Think of all the interesting 
> > evidence from this mailing list's archives that prosecutors would attempt 
> > to introduce against you ...
> > 
> > Not to say that *I* couldn't get you off, but not the way you propose.
> > 
> > EBD
> > 
> > 
> > 
> > > --Tim May
> > > 
> > > We got computers, we're tapping phone lines, I know that that ain't allowed.
> > > ---------:---------:---------:---------:---------:---------:---------:----
> > > Timothy C. May              | Crypto Anarchy: encryption, digital money,
> > > tcmay@got.net  408-728-0152 | anonymous networks, digital pseudonyms, zero
> > > W.A.S.T.E.: Corralitos, CA  | knowledge, reputations, information markets,
> > > Higher Power: 2^1,257,787-1 | black markets, collapse of governments.
> > > "National borders aren't even speed bumps on the information superhighway."
> > > 
> > > 
> > > 
> > > 
> > > 
> > 
> 
> 
> YEAH FUCK YOU.. YOUR ALL FUCKING STUPID ... DONT FUCKIN WRITE THIS SHIT..
> YER ALL DUMB STUPID LITTLE 5 YEAR OLDS WHO KNOW JACK SHIT.. GET OFF THE
> FUCKIN SUBJECT YOU LAME ASS WHOREs.. FUCKIN YOU WANT A REAL FELONY.. TRY
> TO HACK MY SYSTEM... THIS SYTEM CANNOT BE HACKED IF YOU GET ROOT I GIVE
> YOU PERMISSION TO NUKE MY SYS.. FUCK YOU BASTARDS... STUPID NUTSAKCS.
> 
> 


~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
It's better to be thought a fool, then to open your mouth and
			   prove it.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
   A mind is like a parachute, it only works when it is open.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
-----------------------------------------------------------------
Gerard D. Cochrane Jr.
Software System Specialist II
Systems Programmer
University of Texas at El Paso
Phone: (915) 747-5256
Fax: (915) 747-5067
E-mail: gdcochra@mail.utep.edu

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