Samuel Goldberg has been a Massachusetts criminal defense attorney for 20 years. Prior to that, he was a New York state prosecutor. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network. To speak to Sam about a criminal matter call (617) 492 3000.

Computer Hacker Pleads Guilty To Credit Card Fraud In Federal Court

Albert G., the 28-year-old gentleman from Miami (hereinafter, the “Defendant”) who had been charged with being a computer hacker agreed to plead guilty in Boston’s federal court last week. His attorney, however, still disagrees with prosecutors about his role in the hacking.

Yesterday, his attorney still insisted that he was not the “ringleader” in the, now nationally
known, scheme which has been described as one of the largest payment-card thefts in recent history.

The Defendant has agreed to plead guilty to charges that he helped engineer the theft of more than 40 million card numbers from retailers like TJX Cos Inc and BJ’s Wholesale Club Inc. Of course, that’s just in Boston. Last month, in New Jersey, the U.S. Justice Department charged him and two others with conspiring to steal another 130 million payment card numbers, the most ever.

Both cases put the Defendant at the center of the action — especially bold conduct since authorities say he was a Secret Service informant earlier this decade.

The defense attorney insists that the Defendant was a less-important figure than the Boston case made out, saying he was one of 11 co-conspirators worldwide, some still at large.
The Defendant, currently being held in New York City, faces up to 25 years in prison as part of the plea deal.

The sentence would be among the stiffest ever for hacking. On the other hand, had he gone to trial and was convicted on all counts, he could have faced life in prison. The way the plea is set up, any time the Defendant served as a result of the Boston deal would also count toward time he could receive stemming from the New Jersey case, according to the attorney.

The Justice Deparrtment has declined comment.

Attorney Sam’s Take:

“Hey, Sam, guilty is guilty, isn’t it? Who cares about whether he was the ‘mastermind’ of the operation?”, you may ask.

Actually, particularly in federal court, it matters a lot. The Federal Sentencing Guidelines are extensive and provide “points” for almost every aspect of a given case and defendant’s history. What happens is that the court adds up all those points and the resulting numbers give the range of sentence suggested for the court to follow…which it usually does.

The role in the offense matters a great deal when it comes to sentencing.

“But, he agreed to plead guilty. Isn’t it kind of cut and dry at that point?”

Not at all. Both sides often view the Defendant differently. This means that each side, as well as the Department of Probation, put together their own submission suggesting how the numbers should fall and, in terms of the amount left to the judge’s discretion, which way that discretion should tilt.

The fact that the Defendant has agreed to plead guilty does not mean that both sides agree on his role, or even what the sentence should be. Sometimes, in federal court, the plea is made so that the defendant can gain positive points for accepting culpability. Of course, that could be an issue in this particular plea. If the Judge believes the government’s version that the Defendant was actually the leader of the scheme, and the Defendant is denyingit, then will the court actually feel that he is accepting the proper blame?

Of further interest is the attorney’s warning that there are still others out there who were part of the scheme and perhaps they were more culpable than his client.

Is that an invitation to the government to squeeze his client and try to make a better deal? Has that already happened? If not, then it may suggest to the court that, if the defendant has not already cooperated about these individuals, then he does not get complete credit for “coming clean”. This way, the plea could backfire on the Defendant.

Computer hacking, of course, is a white collar cyber-crime and it is one in which the government is particularly interested these days for obvious reasons. Further, if one is charged, it would seem that the prosecution, federal or state, is quick to attribute leadership roles.

Upon receiving information that you are being investigated for such a scheme, do not simply assume that you “can handle it”. The authorities have been at this a lot longer than you have…whatever your history. Contact an experienced defense attorney to advise and, if necessary, defend you.

If you find yourself either investigated or actually accused of participating in, or leading, one of these conspiracies (which would make you responsible for what everyone else in the conspiracy has done), and wish to talk to me about the case, feel free to call me at 617-492-3000.

To view the article upon which today’s blog was based, go to: http://www.reuters.com/article/domesticNews/idUSTRE57U4RL20090831

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