The opinion of the court was delivered by: Spatt, District Judge.
MEMORANDUM OF DECISION AND ORDER
In view of the seriousness of the charge — a threat against
the President of the United States — and the length of the
hearing, the Court thought it appropriate to issue a full
In the continuing Marino — Amato saga, this is the second
Violation of Supervised Release charge against the defendant
Paul Marino. In this proceeding, he is charged with sending an
e-mail message to Mayor Rudolph Giuliani, which threatened the
lives of Mayor Giuliani and President Clinton in violation of
18 U.S.C. § 871(a). The letter reads as follows:
I think you are a scum bag of the worst order. In
fact I feel so strongly about it that I may take out
my pistol and kill you along with that fuck bill
clinton, strunzio pesident [sic] that he is. I hate
you both I want you both dead. Now I have the cunt
wife as a neighbor. I DON'T LIKE IT . . . Die you
fucks die. See you in hell Rudy, when Billy clinton
comes to stay in his new home here, I'm gonna sneak
around that fucking house and launch a rocket
straight into his bedroom. Don't think I can't do it.
I've got the money for it and the fucking balls. I
have nothing to live for anymore fuck you all!!!!!!
giulia email@example.com — email
(212) 894-3702 x2601-voicemailfax
The e-mail at issue (Govt.Ex. 5) is difficult to read, but the
message can be discerned. It is also difficult to make out the
date and time the e-mail was sent and received. However, close
reading reveals that the message was sent on February 26, 2000
at 12:52:35 p .m. (Pacific Standard Time ["PST"]). Apparently,
the message was delivered from onebox.com to another relay at
onebox.com on February 26, 2000 at 12:52:35 p.m. (PST) and was
delivered to Mayor Giuliani's office on February 26, 2000 at
15:55:08 (3:55:08 p.m.) (Eastern Standard Time).
The Government presented the following evidence. Adam J.
Melzak is a technical support supervisor for Monmouth Internet
Corp. of Redbank, New Jersey ("Monmouth Internet"). On October
6, 1999, his company issued a New Account Report (Govt.Ex. 1)
listing a new subscriber, Paul Marino of 61-30 166th Street,
Queens, New York 11365, telephone number 718353-1880. Marino had
a username of cmb839 with a password unique to the username,
vick*kusa or bick*kusa. According to a Monmouth printout
(Govt.Ex. 2), the starting date for the Paul Marino account was
October 6, 1999 and the account was in continuous operation to
the end of service on October 1, 2000.
One needs to know the username and the password to get access
into the system. On March 6, 2000, Marino called to change his
username to spyrogyra (see Govt. Ex. 3). It is the username
which is on the e-mail, not the password, which is kept secret.
However, to log into the
system, one has to know the password in addition to the
According to the Monmouth Internet records, on Saturday,
February 26, 2000 at 15:32, Marino connected to the Monmouth
system. On Saturday, February 26, 2000 at 19:51:39, Marino
disconnected from the system. There were no interruptions in
service, so that, according to the records, Marino logged on
continuously for approximately four hours and twenty minutes. On
page two of the Monmouth log (Govt.Ex. 4), there was a second
log in. On February 26, 2000 at 15:35:07, user cmb839 logged on
until 15:46:56. Apparently, at least for some period of time,
the person or user was connected on two phone lines.
There was a unique internet protocol ("IP") address for each
and every call. The IP address is a unique identifier of a
particular computer that is connected to the internet at the
time of connection. The calls referred to above had the same IP
address. This was a multi-link account (two modems hooked up to
one computer with two separate phone lines). The defendant had
such a multi-link account. The two calls were placed from the
same computer because they issued the same IP address.
The witness was then shown the e-mail at issue (Govt.Ex. 5).
Before the words of the actual e-mail which starts with the
words "hey rudy," technical information unrelated to the message
is set forth. There is a Monmouth Internet IP address of
184.108.40.206. Melzak testified that the person sending this
e-mail "had to be from a Monmouth Internet dialing account . . .
someone dialed into Monmouth Internet at the same time the
e-mail is being sent" (Tr. at 45).*fn1 According to Melzak,
the person reflected in the Monmouth log is the person who sent
On cross-examination, Melzak conceded that none of the records
in evidence can show the specific computer that sent the
message. Also, Melzak was questioned about someone using a
laptop and tapping into the Marino telephone line from a box
located at the side of the house.
Q If I dialed from my machine to Monmouth on the
multilink account, those IP addresses on my machine
would show the same, correct?
Q If someone used a palm pilot or a laptop or
whatever, hooked into the same phone lines from the
side of my house or sitting in a parked car in front
of my house, using my accounts, my phone line, not my
computer, would the same exact information apply?
Q With my machine not on it, my machine using my
account, my Monmouth account which we established
today, my phone line tapped into the side of my
house, would that information show the same IP
United States Probation Officer Richard L. James is
supervising the defendant. Upon receiving the news about this
e-mail, he and Supervising United States Probation Officer David
J. Washington interviewed the defendant on March 8, 2000 and
questioned him about the e-mail at issue. The defendant denied
sending the e-mail and stated that someone could have tapped
into his computer and/or phone mail system and sent the message.
However, the defendant never stated he was not at home at the
James subpoenaed the Verizon records and received a document
(Govt.Ex. 6) which showed, among other things, two telephone
numbers that were the defendant's home phone numbers. From the
records received, it appears that on February 26, 2000 at 3:38
p.m., a phone call was
placed from each of the telephone numbers to Monmouth Internet.
Probation Officer James spoke with the secret service agents
who investigated this occurrence. The agents inspected the
defendant's computer equipment. They told James that "they
actually felt he sent the message but they didn't think it was a
viable threat" (Tr. at 76). James did not recall if, as a result
of their search, the agents found any evidence that would link
the defendant to the e-mail. However, he conceded that the
agents did not tell him that they found any incriminating
evidence against the defendant. Marino told the agents that
"maybe they should contact the Amato family."
James also testified that he heard the Monmouth representative
testify that the e-mail message could have come from a telephone
line or lines from the defendant's home and not from his
In his Violation of Supervised Release Report, Probation
Officer James stated that the defendant's adjustment to
supervision was poor and that he was "manipulative and deceptive
and continues his criminal behavior." However, James based his
comment on the investigation that revealed that Marino in fact
sent the e-mail message to Mayor Giuliani. Also included in this
opinion by James is that Marino tried to hide his addresses and
had some problem with his employment with the Bazzini Food
Service, owned by his mother. However, James conceded that
Marino was trying to be engaged in gainful employment.
At this point, the Government rested.
In the defendant's case, Keith Smidt, an employee of Verizon,
testified as to the two telephone number records listed to Joan
Marino at 61-30 166th Street, Fresh Meadows, New York. In
particular, Smidt testified as to certain telephone calls made
on February 25, 2000 and February 26, 2000. On one of the
records (Dft.Ex. 6), there is a reference to "tapping." Smidt
explained that was the customer's terminology "for what he was
experiencing" (Tr. at 99-100). Marino told someone from Verizon
(or Bell Atlantic, its predecessor) "that there was a tapping on
the line." In this regard, Smidt testified as follows:
Q There was some indication that he was suffering
from wiretapping? Is that what you are saying?
A He just told the person he was speaking to on the
phone that there was a tapping on the line.
Q Exhibit 6 — C-6, 2620 exchange, same exchange. And
the call indicates possible theft of service, and
then it says an ampersand saying outdoor. Can you
tell us what that translates to? A It would mean that
the customer's line was open at one of our boxes
Q You mean some possible tampering?