From: Brian Davis <bdavis@thepoint.net>
Date: Sun, 29 Sep 1996 16:36:21 +0800
To: "Timothy C. May" <tcmay@got.net>
Subject: Re: "Confessing to a felony"
In-Reply-To: <v03007801ae7237ed7a65@[207.167.93.63]>
Message-ID: <Pine.BSF.3.91.960929015322.6668L-100000@mercury.thepoint.net>
MIME-Version: 1.0
Content-Type: text/plain


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."
> 
> 
> 
> 
>