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U.S. v. MARINO

January 18, 2001

UNITED STATES OF AMERICA,
V.
PAUL MARINO, DEFENDANT.



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 written opinion.

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:

hey rudy,

Let me voice my opinion

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 amato

giulia amato@onebox.com — email

(212) 894-3702 x2601-voicemailfax

70 rebeca Lane

carmel, ny

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 username.

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 209.191.41.121. 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 the e-mail.

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.

BY MR. MARINO:

Q If I dialed from my machine to Monmouth on the multilink account, those IP addresses on my machine would show the same, correct?

A Yes.

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?

A With you not on?

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 information?

A Yes.

MR. MARINO: Thank you.

(Tr. at 59.)

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 time.

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 computer.

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 somewhere outdoors.

Q You mean some possible tampering?

A Correct.

(Tr. at ...


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