To filter some of these inquiries, I will provide here some of the publicly available documents in that case as well as some thoughts.  It was certainly a very favorable result and it appears to be the first time that the U.S. Department of Justice loses a trial of this type.  Having said that, the information that will be posted here is for informational purposes only and is not in any way, shape or form, legal advice.  You should not rely on any information contained here and should address any legal questions to an attorney of your choice.  Please also be aware that being charged with a crime, particularly in Federal Court, is very serious.  The F.B.I. is the most competent investigative agency in the U.S. and the Department of Justice attorneys are some of the finest.

With that out of the way, part one in this case was the initial indictment, which was brought up in Virginia.  The case was ultimately tried in Texas, but that is a topic for a different day.  Suffice to say that this case took several months and went cross-country, culminating in a five-day jury trial and a “Not Guilty” verdict.

Follow the link below to see the “Rabid Neurosis” (RNS) Indictment, this is how it began:

U.S. v. Cassim Virginia Indicment

The charge was conspiracy to commit copyright infringement.  Attorney Domingo J. Rivera represented the “lead” Defendant (the Government’s allegation). To our knowledge, this is the only “Not Guilty” jury verdict obtained for this type of case in Federal Court.  The majority of charges culminate in guilty pleas.

Just as customary in Federal Internet related criminal cases, after obtaining the indictment, the Government issued its press release.

The headline read: FOUR MEMBERS OF ALLEGED INTERNET MUSIC PIRACY GROUP CHARGED
WITH COPYRIGHT INFRINGEMENT CONSPIRACY

The body of the press release continued on…
WASHINGTON — Four individuals were indicted today by a federal grand jury in the
Eastern District of Virginia with conspiracy to commit copyright infringement for allegedly obtaining
and illegally releasing copyrighted music, announced Assistant Attorney General of the Criminal
Division Lanny A. Breuer and U.S. Attorney for the Eastern District of Virginia Dana J. Boente.

Adil R. Cassim, 29, of Granada Hills, Calif.; Bennie Glover, 35, of Shelby, N.C.; Matthew D.
Chow, 28, of Missouri City, Texas; and Edward L. Mohan, II, 46, of Baltimore, were charged in the
one-count indictment with being high-level members of the music piracy group known as “Rabid
Neurosis” or “RNS”, which operated from at least 1999 to 2007.  According to the indictment, the
defendants, led by Cassim for a period of time, allegedly conspired to illegally upload to RNS
thousands of copyright protected music files, which were often subsequently reproduced and
distributed hundreds of thousands of times.

According to the indictment, RNS was a “first-provider” or “release group” for pirated
music and other content to the Internet.  Once a group obtains and prepares infringing digital copies
of copyrighted works, the copies can then be distributed in a matter of hours to secure computer
servers throughout the world.  According to the indictment, RNS members were granted access to
massive libraries of pirated music, video games, software and movies by gaining a reputation for
providing previously unavailable pirated materials.  The indictment alleges that the supply of pre-
release music was often provided by music industry insiders, such as employees of compact disc
(CD) manufacturing plants, radio stations and retailers, who typically receive advance copies of
music prior to its commercial release.

The indictment also alleges that members of RNS, including Glover, illegally procured some
of the music the group illegally released before its commercial release date from a CD manufacturing
plant in North Carolina.   Other members of RNS, including Mohan and Chow, allegedly purchased
CDs from retail stores shortly after their commercial release and posted them to the Internet before
other piracy groups were able to do so.

If convicted, defendants face a maximum sentence of five years in prison, a $250,000 fine and
three years of supervised release, as well as possible orders of restitution.

And the press release continued on….Govertnment Press Release

Then came the initial appearance, the date for arguments on Motions was set, and a jury trial was schedule in the United States District Court for the Eastern District of Virginia.  Initial Scheduling Order

Press release

Cyber Lawyer Blog Article

Initial Thoughts

Once the music piracy federal criminal conspiracy copyright infringement case began to move through the United States District Court for the Eastern District of Virginia, the “race to the plea line” began between the various defendants. They hoped to obtain a more lenient treatment in exchange to assisting the government in securing music piracy conspiracy copyright infringement convictions against the other defendants in federal court in Virginia. Only two people accused of allegedly being members of Rabid Neurosis (RNS) did not plead guilty. On of them was Domingo Rivera’s client, Adil R. Cassim, who the Prosecution alleged was the leader of RNS.

After the guilty pleas of these defendants were accepted by the United States District Court for the Eastern District of Virginia, the defendants were scheduled for sentencing. As part of the sentencing process, the defendants and the government wrote various briefs with hope of persuading the Court to apply the version of the guidelines that they argue were applicable to the music piracy conspiracy copyright infringement case in the United States District Court for the Eastern District of Virginia.

The sentencing positions the the prosecution filed for the various music piracy cases were somewhat similar. The government’s argument included:

As the Court is aware, the trial of the Defendant’s co-conspirators, which had been scheduled for November 4, 2009 in this District, was transferred by this Court to the Southern District of Texas, Houston Division, after the Court sua sponte invited a motion to transfer by the co-conspirators under Federal Rule of Criminal Procedure 21(b). That trial in Houston (which had originally been scheduled to start on January 19, 2010) has been delayed at the request of the defense, who has also re-filed all the pre-trial motions that it had previously submitted in this District. Due to a need to re-litigate these issues and possibly have additional evidentiary hearings, a new trial date has not yet been set but is expected in the next few months. The timing of the new trial is important since the government intends to call Defendant as a witness at trial. In the event he is called as a witness, the government is likely to file a Motion for a Downward Departure under Federal Rule of Criminal Procedure 35 when his truthful testimony is complete. Given that such a motion for a downward departure is likely to be requested, we would ask the Court to sentence the Defendant to the bottom of the properly calculated advisory sentencing guidelines range, which is 57 months of incarceration, and delay his surrender date until after he has had a chance to testify at the trial of his co-conspirators in March or early April of 2010.

As the above text demonstrates, the defendants who pleaded guilty in the Eastern District of Virginia during this conspiracy copyright infringement case. The government’s argument continued:

As set forth in the Presentence Report and the Statement of Facts, the Defendant was a member of an Internet pre-release music group called “Rabid Neurosis” or “RNS.” The Defendant has acknowledged that he did willfully enter into an agreement with one or more individuals for the express purpose of unlawfully reproducing and distributing copyrighted materials via the Internet. Defendant also acknowledges that, through the acts of himself and others in the conspiracy, RNS caused the reproduction and distribution over the Internet of copyrighted works with a total infringement amount of more than $1,000,000 and less than $2,500,000. This Defendant was a particularly key member of the conspiracy, since for many years he provided the group with albums that were not yet commercially available. The Defendant worked at the North Carolina compact disc production facility that made the music CDs that the Defendant electronically provided to the leader of RNS. He trafficked in this stolen intellectual property, contrary to the express written agreement he had with his employer. In sum, the Defendant and his co-worker (who introduced him to RNS) were critical to the rise of RNS to the forefront of Internet music piracy that resulted in far more than $1,000,000 in loss.

Defendant pled guilty to a single count criminal information of conspiracy to commit copyright infringement, in violation of Title 18, United States Code, Section 371. On that date, the Court accepted the Defendant’s plea of guilty to the indictment. In this case, there was both an agreed-upon statement of facts and a plea agreement. In the statement of facts and before the Court, the Defendant admitted his unlawful conduct. Based on this record, the Presentence Report properly calculated that the Adjusted Offense Level for the Defendant’s conduct as 28: Sentencing Guideline 2B5.3(a) provides for an offense level of 8 for criminal copyright infringement; Guideline 2B5.3(b)(1)(I) provides an additional sixteen-level upward adjustment for an offense with an infringement amount greater than $1,000,000, but less than $2,500,000; Guideline 2B5.3(b)(3)(A) provides an additional two-level upward adjustment for an offense involving the uploading of infringed items; and Guideline 2B5.3(b)(2) provides an additional two-level upward adjustment for an offense involving the reproduction/distribution of at least one work being prepared for commercial distribution.

In the event that the government files a motion with the Court for a Section 3E1.1(b) one-level reduction and assuming the Defendant receives the two-level reduction for acceptance of responsibility, the Defendant will have an Offense Level Total of 25. The Presentence Report further calculates that the Defendant has a Criminal History Category of I. With an Offense Level Total of 25 and the Defendant’s Criminal History Category of I, the advisory Sentencing Guidelines range for the Defendant, in absence of credit for his cooperation, is properly calculated as 57-60 months.

The Supreme Court has declared that “[a]s a matter of administration and to secure nationwide consistency, the Guidelines should be the starting point and the initial benchmark.” Gall v. United States, 128 S. Ct. 586, 596 (2007). The advisory Sentencing Guidelines, therefore, remain an indispensable resource for assuring appropriate and uniform punishment for federal criminal offenses. This Court must also consider all of the sentencing considerations set forth in Section 3553(a). Those factors include: (1) the nature and circumstances of the offense and the history and characteristics of the Defendant; (2) the need for the sentence imposed to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (3) the need to afford adequate deterrence to criminal conduct, and to protect the public from further crimes of the Defendant; (4) the need to provide the Defendant with educational or vocational training, medical care, or other correctional treatment in the most effective manner; (5) the guidelines and policy statements issued by the Sentencing Commission; (6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and (7) the need to provide restitution to any victims of the offense. 18 U.S.C. § 3553(a). B. A Sentence at the Bottom of the Sentencing Guidelines Would Be Reasonable and Appropriate in Light of Recent Supreme Court Rulings. The government’s recommendation of a bottom of the advisory sentencing guidelines range is based in part on the fact that such a sentence properly reflects the accumulated wisdom and expertise of the Sentencing Commission, and serves the vital goal of uniformity and fairness in sentencing. While, to be sure, “[i]n accord with 18 U.S.C. § 3553(a), the Guidelines, formerly mandatory, now serve as one factor among several courts must consider in determining an appropriate sentence,” Kimbrough v. United States, 128 S. Ct. 558, 574 (2007), it remains the case that “the Commission fills an important institutional role: it has the capacity courts lack to ‘base its determinations on empirical data and national experience, guided by a professional staff with appropriate expertise,’” id. at 574 (quoting United States v. Pruitt, 502 F.3d 1154, 1171 (10th Cir. 2007) (McConnell, J., concurring)). Thus, the Supreme Court recently stated that “[w]e have accordingly recognized that, in the ordinary case, the Commission’s recommendation of a sentencing range will ‘reflect a rough approximation of sentences that might achieve § 3553(a)’s objectives.” Kimbrough, 128 S. Ct. at 574 (quoting Rita v. United States, 127 S. Ct. 2456, 2465 (2007)). C. A Sentence at the Bottom of the Sentencing Guidelines is Reasonable In Light Of the Serious Nature Of Defendant’s Criminal Conduct. There can be no question that the Defendant engaged in serious crimes that harmed individuals and businesses (including his former employer); in fact, the total infringement amount attributable to the conspiracy of which the Defendant was a member is well over $1,000,000 (the parties have agreed to cap the amount at $2,500,000). In particular, the Defendant violated the trust of his former employer, the plant that printed compact discs for several music labels; he traded the intellectual property that was entrusted to his employer in order to get access to thousands and thousands of other copyrighted works. His breach at a time when no legitimate copies of the works he traded were available harmed the music industry in incalculable ways. Given the nature of the Defendant’s criminal conduct and the impact and the harm to the public, the United States believes that an appropriate sentence at this time would fall at the low end of the advisory Sentencing Guidelines. RNS was the most infamous and successful Internet music piracy group in history. It procured thousands of albums and made them available illegally on the Internet. It procured albums from production plants, from radio stations, and from retail establishments prior to their commercial release.

RNS utilized serious security measures and took other steps to avoid detection by law enforcement, including using encryption on their chat sessions, locating many of its servers overseas, using a referral system that reduced the chances of infiltration, breaking of copyright protections on encoded discs, timing events to reduce the chances of exposing group members, and comparmentalizing tasks within a hierarchal organization. Rather than operating as a group of friends interested in music, it operated as a business, and, rather than money, that business was designed to get access for its members of every copyrighted work that ever existed. While individual infringement may be of limited harm (such as making a copy of an album for a next door neighbor), the collective effect of RNS’s activities were felt around the world. News of a single album by an artist being released on the Internet in digitally-perfect form prior to its commercial release resulted in hundreds of thousands of downloads by the public, and a potential loss of millions to the artist and the recording label. Simply put, the actions of the group were not a hobby; it was a group of thieves on a massive scale.

The activities of this group had such a wide ranging impact on the recording industry that, eventually, the music labels started discussing the likely impact of illegal RNS releases of their commercial albums prior to their actual theft.

The vastness of the impact of the harm makes it nearly impossible for the government or the Court to determine all the victims of RNS’s conduct and to calculate restitution for them. As such, the government has not sought restitution from the Defendant and his co-conspirators. It is worth noting, however, that it is because the harm is so large that such a calculation of restitution is daunting, rather than it being a factor to be consider in the defendants’ favor. The conduct of the Defendant, his co-conspirators, and intellectual property thieves around the world must be deterred. A sentence at the bottom end of the advisory Sentencing Guidelines would provide that deterrence. To depart below the guidelines range would send a clear message that the Court does not take the massive theft of copyrighted works seriously enough, since RNS was the most pervasive and infamous Internet piracy group in history. It 1 should make no difference from a sentencing perspective that this theft took primarily took place over the Internet, rather than a physical space. Theft is theft.

With respect to 18 U.S.C. § 3553(a)(6), which deals with sentencing disparities, the Government would note for the Court that no Internet piracy case is truly comparable with the RNS conspiracy. Technically, as indicated in the Pre-Sentence Report, there are a number of prior cases that involved similar conduct (“Apocalypse Production Crew” and “Drink or Die”) but none of them were similar in scope and impact to the RNS conspiracy. From simply a numbers standpoint, members of APC, who with exception of one individual who went to trial, agreed to a valuation of $30,000 to $70,000 of the conspiracy’s conduct. The one member of APC who went to trial was given a valuation of $100,000 to $200,000 by U.S. District Judge Liam O’Grady (U.S. v. Barry Gitarts) and was sentenced to 18 months in prison. Here, the agreed-upon valuation is $1,000,000 to $2,500,000, which, according to the sentencing guidelines, should command a significantly higher sentence of imprisonment (which the bottom of the guideline range would accomplish).

Unlike APC, which mostly involved distributing unlawful copies of music that had already been released, RNS was recognized as the world-leader in acquiring copies of pre-release music; that is, music that was not yet commercially available. The reason for a large part of that success was based on the fact that the group had two members, including Defendant, who worked in the music CD production plant in North Carolina. These individuals were able to procure many of the hottest albums of the last decade and provide them to RNS. No other music piracy group had that kind of regular access to pre-release materials. So, also unlike APC, the parties have agreed to the new additional two-point enhancement for pre-commercial works under Sentencing Guideline 2B5.3(b)(2).

Between the higher valuation and the pre-commercial enhancement, the properly calculated offense total under the advisory Sentencing Guidelines for RNS members is more than double that of APC members and the sentences should reflect that reality. Defendant dealt directly with the leader of RNS for years and gave him albums significantly before they were commercially available.

Based on the argument advanced by the government, the prosecution asked the court to sentence some of these defendants to almost 60 months in prison, the maximum possible sentence for a music piracy case based on a conspiracy copyright infringement case.

Some recent cyber crime defense cases where we have assisted our clients include:

• Our client was accused of being the leader of the most prolific Internet music piracy group in the world.  The charge consisted of conspiracy to commit copyright Infringement.  The charges were initially brought in the United States District Court for the Eastern District of Virginia located in Alexandria, Virginia.  The trial took place in the United States District Court for the Southern District of Texas, located in Houston, Texas.  Our client elected to have is case tried by a Federal Jury.  Our technical knowledge assisted us in providing competent legal representation and bringing the case to a successful resolution.  Read More…
• Our client was arrested on access device fraud charges and aggravated identity theft in the Eastern District of Virginia, Richmond Division.  The accusations involved alleged selling of stolen credit card numbers, social security numbers, other personally identifiable information, as well as e-mail account data for spam purposes.  We thoroughly reviewed the government evidence, both the technical and the legal aspects, and assisted our client in obtaining a favorable result.
• Our client was accused of using a computer system to solicit a minor in Chesterfield County, Virginia.  Our technical knowledge allowed us to properly dissect and understand the technical issues in the government’s evidence, resulting in a favorable resolution for our client.
• Our client appealed a case handled by another defense attorney to the Virginia Court of Appeals and to the Virginia Supreme Court.  The charges involved the use of a computer system to facilitate certain offenses involving children in Virginia.  Our technical knowledge allowed us to be able to understand the case immediately and completely analyze all the issues despite being retained after the appeal process was already underway.
• Our client was a victim of computer trespass and unauthorized network access by a former employee.  Our experience in both the legal and technical aspects allowed our client to gather the necessary evidence to prosecute the perpetrator in a “one-stop shopping” manner.
• Our client was charged with eight counts of use of a computer system to facilitate certain offenses involving children in Virginia.  Our technical analysis allowed us to get the majority of the charges dismissed, resulting in a resolution of the case involving no jail time.
• Our client was a victim of computer fraud, computer trespass and unauthorized access to his computer by a debt collector.  Our technical know-how and legal analysis allowed us to recommend a course of action for this activity, which may have otherwise gone undetected.  Read More…