LOS ANGELES – US District Judge Marianne Pfaelzer on Monday sentenced convicted cracker Kevin Mitnick to 46 months in prison and ordered that he pay restitution in the amount of US$4,125 during his three-year period of supervised release.
The figure is substantially lower than the government's request of $1.5 million.
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Mitnick, who turned 36 on Friday, will likely serve the remainder of his sentence at Nellis Federal Prison Camp, just outside of Las Vegas, Nevada. The celebrity cracker pleaded guilty to seven counts of wire and computer fraud in two separate federal indictments.
Monday's sentencing hearing marked the end of Mitnick's legal difficulties, since California prosecutors have elected to drop the remaining charges pending against him.
More than 50 spectators attended the two-hour hearing, including fellow hackers and reporters. Even a crew member from the upcoming film about Mitnick and his hacking exploits, Takedown, was there to show his support.
Most of the time was spent arguing over the amount of restitution.
Defense attorney Don Randolph argued that the process was "tainted." Citing examples from the WELL and Colorado Super Net (CSN), he claimed the government had participated in the "manipulation and inflation of loss figures," engaging in "highly inappropriate" actions.
In one case, Randolph says prosecutors used an anonymous email to calculate the loss. CSN estimated the damages associated with hacking at $207,000, but provided no evidence to support the figure.
Moreover, the defense claimed that the government's solicitations for damage estimates were akin to witness tampering. According to a prepared statement released by Randolph's office, "A defense investigation recently unearthed documentary evidence demonstrating that the government manipulated the 'loss' amount for its own purposes, including detention without bail."
Randolph's request for a formal investigation was denied by Pfaelzer, who also refused to impose sanctions against government attorneys.
Several victims' loss statements were circulated prior to sentencing. Since then, all filings in the case have been sealed, prompting Mitnick's defense team to complain, "Over the defense objection, the Court ordered that this evidence of government misconduct be placed under seal, and withheld from public dissemination."
Mitnick's scheduled date for release is 21 January. He could be released earlier if given time off for good behavior. Upon the recommendation of the federal Bureau of Prisons, he may not be freed, but instead sent to a halfway house.
Pfaelzer refused to include the release to a halfway house in her recommendation, going as far as to threaten "strongly recommending against it."
In 1989, she recommended releasing Mitnick to a halfway house for earlier hacking related offenses.
US Attorney Christopher Painter supported Pfaelzer's decision, explaining that Mitnick had had his break in 1989, but found himself unable to follow court orders. According to Painter, Mitnick is a "danger to the community and sentencing someone like that to a halfway house is not appropriate."
Pfaelzer resolved the issue of restitution by making its repayment a condition of Mitnick's supervised release. Although doing so violated the conditions of the original plea agreement, she refused to hear arguments from either counsel.
After his release from prison, Mitnick will be forced to make monthly payments of $125, to be divided among more than a dozen companies and institutions, including Fujitsu, Motorola, USC, the WELL, US West, Air Touch, MCI, Pacific Bell, Sun Microsystems, and the San Diego Supercomputer Center.
Judge Pfaelzer made clear repeatedly that the restitution was ordered on principle, not in the hopes of offsetting any damages, which she says she believed surpassed the government's estimate.
Other conditions of Mitnick's supervised release include a ban on access to computer hardware and software as well as any form of wireless communication. Mitnick will also not be permitted to be employed with a company that has computers or computer access on its premises. He is further prohibited from possessing any kind of passwords, cellular phone codes, or data encryption devices. And the conditions of his release ban access to any new or future technology that may act as a computer or provide access to one.
The only form of technology he may own for three years after his release from prison is a "landline telephone." Whether Mitnick will be permitted to use a computer as part of his education was a question that Pfaelzer left open, to be determined by Mitnick's probation officer at the time of his release from custody.
Because restitution must be based on the defendant's ability to pay, Pfaelzer had few options other than to follow the pre-sentence investigation report's recommendation.
After reading the sentence, Pfaelzer addressed Mitnick directly, "Just to be clear Mr. Mitnick. This is a token restitution. I know it and you know it. You are going to be required to pay it."
The judge repeatedly commented about the difficulty of supervising Mitnick, at one point calling such a job "impossible." The goal of setting restitution so low was, according to Pfaelzer, to make sure Mitnick pays "no matter what."
She told the court, "I'd like to make an order much, much larger, but I can't be sure he'd pay." Any failure to pay the monthly sum will result in a probation violation that could send Mitnick back to prison.
Painter, the prosecutor, said the government was satisfied with the outcome. And Mitnick's attorneys, Randolph and Greg Vinson, said they were relieved the case was finally over.
Mitnick's father had a more upbeat assessment, "It's the end of a saga," he says, "and the beginning of a new trail."
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