Information

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

UNITED STATES OF AMERICA,
Plaintiff,

v.

D-1 JASON MICHAEL DOWNEY
Defendant.

INFORMATION

THE UNITED STATES ATTORNEY CHARGES:

COUNT ONE
(18 U.S.C. § 1030(a)(5)(A)(i) - Fraud and Related Activity in Connection with Computers)

D-1 JASON MICHAEL DOWNEY

From on or about June 18, 2004 to on or about September 5, 2004, in the Eastern District of Michigan and elsewhere, JASON MICHAEL DOWNEY, also known as "Nessun", defendant herein, who was then the owner of the "Rizon" Internet Relay Chat Network, did knowingly and intentionally cause the transmission of a program, information, code, or command through the use of an Internet Relay Chat network known as "Yotta-byte.net," and, as a result of such conduct, intentionally caused damage without authorization to several protected computers, in particular, defendant operated a "bot-net," that is, a network of computers infected with a virus, that allowed defendant to control such computers and cause them to attack other computers by sending high volumes of data to such target computers and causing damage by impairing the availability of such systems and losses of over $20,000, all in violation of Title 18, United States Code, 1030(a)(5)(A)(I).

STEPHEN J. MURPHY
United States Attorney

s/Sheldon N. Light
SHELDON N. LIGHT
Assistant United States Attorney
Chief, Economic Crimes Unit

s/Terrance Berg
TERRANCE BERG
Assistant United States Attorney

Attachment	Date	Size
Information.pdf	06/28/09 1:05 pm	56.11 KB

PLEA Hearing

Plea Hearing set for 6/20/2007 02:30 PM before Honorable Nancy G Edmunds

Appearance: Jill Price

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

UNITED STATES OF AMERICA,
Plaintiff,

v.

JASON MICHAEL DOWNEY,
Defendant.

APPEARANCE

To the Clerk of this Court and all parties of record:

Enter my appearance as Counsel in the case for Defendant.
I certify that I am admitted to practice in the Court.

Respectfully Submitted,

FEDERAL DEFENDER OFFICE
s/Jill Leslie Price
Attorney for Defendant
645 Griswold, Suite 2255
Detroit, MI 48226
Phone: (313) 961-4150

Attachment	Date	Size
AppearPrice.pdf	06/28/09 1:05 pm	11.63 KB

Appointment of Federal Defender Office

Mr. Downey appears to be somewhat indigent, and therefore has been appointed an attorney from the Federal Public Defenders Office.

Attachment	Date	Size
ApptPublicDef.pdf	06/28/09 1:05 pm	33.49 KB

Bond

Bond was set at $10,000. It's an appearance bond, but there appear to have been no other conditions placed on it (like not accessing the Internet).

Attachment	Date	Size
AppearanceBond.pdf	06/28/09 1:05 pm	36.35 KB

Conditions of Release

This document details the conditions of Downey's release. They are basically:

Report to Pre-Trial Services
Post a $10,000 Unsecured Bond

Attachment	Date	Size
ReleaseConditions.pdf	06/28/09 1:05 pm	111.21 KB

Waiver of Indictment

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

UNITED STATES OF AMERICA,
Plaintiff,

v.

D-1 JASON MICHAEL DOWNEY,
Defendant.

WAIVER OF INDICTMENT

I, JASON MICHAEL DOWNEY, the undersigned defendant in this case, understand that I am being charged with the following felony offenses: Fraud in Connection with Computers, in violation of 18 U.S.C. § 1030(a)(5)(A)(i). I have been informed and understand that any person charged with a federal felony offense has the right to insist that the case proceed by way of an indictment returned by a grand jury. Understanding this, and pursuant to Rule 7(b) of the Federal Rules of Criminal Procedure, I hereby waive my right to prosecution by indictment and consent that the prosecution may be brought by information instead of by indictment.

JASON MICHAEL DOWNEY
Defendant

JILL LESLIE PRICE
Attorney for Defendant

Date: 6-20-07

Acknowledgement of Information

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

UNITED STATES OF AMERICA,
Plaintiff,

v.

D-1 JASON MICHAEL DOWNEY,
Defendant.

DEFENDANT'S ACKNOWLEDGMENT OF INFORMATION

I, the undersigned defendant in this case, hereby acknowledge that I have received a copy of the information before entering my plea, and that I have read it and understand its contents.

I know that if I am convicted or plead guilty, I may be sentenced as follows:

Count I, Unauthorized Access to Protected Computer, in violation of 18 U.S.C. § 1030(a)(5)(A)(i) up to 10 years in prison, a $250,000 fine, or both.

Jason Michael Downey
Defendant

ACKNOWLEDGMENT OF DEFENSE COUNSEL

I acknowledge that I am counsel for defendant and that I have received a copy of the Standing Order for Discovery and inspection which requires all pre-trial motions to be filed within twenty (20) days of arraignment.

Jill Leslie Price, Esq.
COUNSEL FOR DEFENDANT

DATE: 6-20-07

Attachment	Date	Size
AckInformation.pdf	06/28/09 1:05 pm	19.68 KB

Plea Agreement

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

-vs-

D-1 JASON MICHAEL DOWNEY,

Defendant.

RULE 11 PLEA AGREEMENT

Pursuant to Rule 11 of the Federal Rules of Criminal Procedure, defendant JASON MICHAEL DOWNEY and the government agree as follows:

1. GUILTY PLEA
A. Count of Conviction
Defendant will enter a plea of guilty to Count I of Information, which charges 18 U.S.C. § 1030(a)(5)(A)(i).

B. Elements of Offense
The elements of Count 1 are:
1. Defendant knowingly and intentionally caused the transmission of a program, information, code, or command;

2. As a result of such conduct, defendant intentionally caused damage to a protected computer system;

3. Defendant was not authorized to do so.

4. Defendant caused at least $5,000 in losses.

C. Factual Basis for Guilty Plea
The following facts are a sufficient and accurate basis for defendant's guilty plea:

From on or about June 18, 2004 through on or about September 5, 2004, Defendant was the owner of the Rizon.net Internet Relay Chat (or "IRC") network. During that time defendant operated a "bot-network," that is, a network of computers infected with a virus that allowed defendant to control such computers, and cause them to attack other computers by sending high volumes of data to such target computers, and thereby causing damage by impairing the availability of such systems. In particular, Defendant caused a large number of computers to be infected with several kinds of "bot" viruses that would cause such computers to respond to commands that defendant issued. As a result, Defendant created a network of infected computers, or "bot-net," of up to 6,000 infected computers. Thereafter, Defendant used the Internet Relay Chat network known as "Yotta-byte.net" to control and send commands to the bot-net in order to launch "denial of service" attacks on a variety of computer systems on the Internet, causing such systems to be overloaded with network data and unable to function properly and thereby impairing the operability of such systems. Defendant agrees that the losses caused by his conduct were over $20,000.

2. SENTENCING GUIDELINES
A. Standard of Proof
The Court will find sentencing factors by a preponderance of the evidence.

B. Agreed Guideline Range
There are no sentencing guideline disputes. Except as provided below, defendant's guideline range is 18 - 24 months, as set forth on the attached
worksheets. If the Court finds:

a) that defendant's criminal history category is higher than reflected on the attached worksheets, or

b) that the offense level should be higher because, after pleading guilty, defendant made any false statement to or withheld information from his probation officer; otherwise demonstrated a lack of acceptance of responsibility for his offense; or obstructed justice or committed any crime, if any such finding results in a guideline range higher than 18 - 24, the higher guideline range becomes the agreed range. However, if the Court finds that defendant is a career offender, an armed career criminal, or a repeat and dangerous sex offender as defined under the sentencing guidelines or other federal law, and that finding is not already reflected in the attached worksheets, this paragraph does not authorize a corresponding increase in the agreed range. Defendant expressly reserves the right to contest the adjustment for use of special skill under U.S.S.G.. § 381.3, which is reflected in the attached worksheets. The government will seek the application of this adjustment. Other than this, neither party may take a position concerning the applicable guidelines that is different from position reflected in the attached worksheets, except as necessary to the Court's determination regarding subsections a) and b), above.

3. SENTENCE
The Court will impose a sentence pursuant to 18 U.S.C. §3553, and in doing so must consider the sentencing guideline range.

A. Imprisonment
Pursuant to Federal Rule of Criminal Procedure 11 (c)(1)(C) the sentence of imprisonment in this case may not exceed the top of the sentencing guideline range as determined by Paragraph 2B.

B. Supervised Release
A term of supervised release follows the term of imprisonment. The Court must impose a term of supervised release on Count 1 of no less than 2 years but not more than 3 years . The agreement concerning imprisonment described above in Paragraph 3A does not apply to any term of imprisonment that results from any later revocation of supervised release.

C. Special Assessment
Defendant will pay a special assessment of $100 and must provide the government with a receipt for the payment before sentence is imposed.

D. Fine
The parties agree that the fine will be no more than the maximum amount of $40,000.

E. Restitution
The Court shall order restitution to every identifiable victim of defendant's offense. The loss amount is approximately $21,110. The Court will determine the exact amount of restitution.

4. EACH PARTY'S RIGHT TO WITHDRAW FROM THIS AGREEMENT
The government may withdraw from this agreement if the Court finds the correct guideline range to be different than is determined by Paragraph 2B, Defendant may withdraw from this agreement, and may withdraw his guilty plea, if the Court decides to impose a sentence higher than the maximum allowed by Part 3. This is the only reason for which defendant may withdraw from this agreement. The Court shall advise defendant that if she does not withdraw his guilty plea under this circumstance, the Court may impose a sentence greater than the maximum allowed by Part 3.

5. RIGHT TO APPEAL
Defendant reserves the right to appeal the sentence if the Court finds that the adjustment for use of a special skill applies and the sentence imposed exceeds 18 months. Defendant waives any other right he has to appeal his conviction or sentence if the sentence is within the guideline range determined under Part 2B. If the sentence imposed is within the guideline range determined by Paragraph 2B the government agrees not to appeal the sentence, but retains its right to appeal and sentence below that range.

6. CONSEQUENCES OF WITHDRAWAL OF GUILTY PLEA OR VACATION OF CONVICTION
If defendant is allowed to withdraw his guilty plea or if any conviction entered pursuant to this agreement is vacated, the Court shall, on the government's request, reinstate any charges that were dismissed as part of this agreement. If additional charges are filed against defendant within six months after the date the order vacating defendant's conviction or allowing his to
withdraw his guilty plea becomes final, which charges relate directly or indirectly to the conduct underlying the guilty plea or to any conduct reflected in the attached worksheets, defendant waives his right to challenge the additional charges on the ground that they were not filed in a timely manner, including any claim that they were filed after the limitations period expired.

7. PARTIES TO PLEA AGREEMENT
Unless otherwise indicated, this agreement does not bind any government agency except the United States Attorney's Office for the Eastern District of Michigan.

8. SCOPE OF PLEA AGREEMENT
This agreement, which includes all documents that it explicitly incorporates, is the complete agreement between the parties. It supersedes all other promises, representations, understandings, and agreements between the parties concerning the subject matter of this plea agreement that are made at any time before the guilty plea is entered in court. Thus, no oral or written promises made by the government to defendant or to the attorney for defendant at any time before defendant pleads guilty are binding except to the extent they have been explicitly incorporated into this agreement.

This agreement does not prevent any civil or administrative actions against defendant, or any forfeiture claim against any property, by the United States or any other party.

9. ACCEPTANCE QF AGREEMENT BY DEFENDANT
This plea offer expires unless it has been received, fully signed, in the Office of the United States Attorney by 5:00 P-M. on 6/20/2007. The government reserves the right to modify or revoke this offer at any time before defendant pleads guilty.

STEPHEN J. MURPHY
United States Attorney

SHELDON LIGHT
ASSISTANT UNITED STATES ATTORNEY
CHIEF, ECONOMIC CRIMES UNIT

TERRENCE BERG
ASSISTANT UNITED STATES ATTORNEY

DATE: 6-12-07

BY SIGNING BELOW, DEFENDANT ACKNOWLEDGES THAT SHE HAS READ (OR BEEN READ) THIS ENTIRE DOCUMENT, UNDERSTANDS IT, AND AGREES TO ITS TERMS. SHE ALSO ACKNOWLEDGES THAT SHE IS SATISFIED WITH HIS ATTORNEY'S ADVICE AND REPRESENTATION- DEFENDANT AGREES THAT HE HAS HAD A FULL AND COMPLETE OPPORTUNITY TO CONFER WITH HIS LAWYER, AND HAS HAD ALL OF HIS QUESTIONS ANSWERED BY HIS LAWYER.

JILL LESLIE PRICE
ATTORNEY FOR DEFENDANT

JASON MICHAEL DOWNEY
DEFENDANT

DATE : 6-20-07

Attachment	Date	Size
PleaAgreement.pdf	06/28/09 1:05 pm	359.43 KB

Plea Change

Minute Entry for proceedings held before Honorable Nancy G Edmunds : Plea Hearing, Plea Entered by Jason Michael Downey (1) Guilty Count 1 (Court Reporter: Suzanne Jacques) (Defendant Attorney: Jill Price) (AUSA: Terry Berg) (CHem) (Entered: 07/09/2007)

SENTENCING Hearing

Set Deadlines as to Jason Michael Downey: Sentencing set for 10/10/2007 02:00 PM before Honorable Nancy G Edmunds (CHem) (Entered: 07/09/2007)

UPDATE: Sentencing hearing changed to 10/23/2007

Government's Sentencing Memorandum

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

UNITED STATES OF AMERICA,
Plaintiff,

v.

D-1 JASON MICHAEL DOWNEY,
Defendant.

GOVERNMENT’S SENTENCING MEMORANDUM

The United States, by and through its attorneys, STEPHEN J. MURPHY, United States Attorney, and TERRENCE BERG, Assistant United States Attorney, hereby submit this Sentencing Memorandum.

Defendant Jason Michael Downey pleaded guilty to Computer Intrusion, in violation of Title 18, United States Code, Section 1030(a)(5)(A)(I), on June 20, 2007.

Downey operated a “botnet,”a network of computers that he infected with a virus program giving him control over several thousand computers. Downey used this program to direct the botnet to “attack” several Internet companies, resulting in a loss of approximately $21,000. In order to create a botnet, it is necessary to design a virus program that, when successfully installed in a victim computer, will cause that victim computer to “phone home” to a command and control computer that is being operated by the “bot-herder” or “bot-master.” Once infected, the victim computer will connect to the command and control computer over the Internet and will await instructions. The bot-master will then send commands to the army of infected computers through the command and control computer.

-2-
In this case, Downey operated a bot-net of over 6000 infected computers. This means that the defendant succeeded in causing over 6000 computers to download his bot virus, and that these computers were all compromised and under his control. Downey told the FBI that he obtained the bot virus called “Agobot” and had his friend program the bot virus to cause the infected computers to connect to a computer with the domain name of “yotta-byte.net.” Downey would change the location of his command and control computer by changing the IP address that was assigned to the yotta-byte.net domain name. Downey registered the domain name of yottabyte. net using false information. Downey used his botnet to send floods of data to other networks that he wanted to knock off-line. To do this, Downey had to know the correct commands to give to the infected computers that were logged into his command and control computer. This is called a “distributed denial of service” attack, or “DDOS” attack. This caused significant problems for his victims, but only approximately $21,000 in quantifiable damages to three victims who provided damage information to the FBI: Southo.net, B2NetSolutions, and Ingeneria. In some cases, companies were charged for bandwidth usage caused by the defendant’s flooding their network with data, but these charges were later reversed when it was learned the reason for the increase in bandwidth usage.

Defendant is being held accountable only for the quantifiable losses of three victims. Defendant is not being held accountable for costs that may have been incurred by the thousands of individual computer owners who were infected with his bot virus and who unwittingly participated in his various denial of service attacks.

Defendant has objected to the inclusion of both the 2-point increase in the offense characteristics for the offense involving “sophisticated means” under U.S.S.G. 2B1.1(b)(9) and
-3-
the 2-point role in the offense adjustment for “special skill” under U.S.S.G. 3B1.3. The plea agreement reserves defendant’s right to object to the two points for special skill.

The government believes that the defendant’s conduct warrants inclusion of both the increases for sophisticated means and use of special skill. Even a cursory glance at the nature of the defendant’s conduct reveals that controlling thousands of computers by means of a customized virus is to commit a crime using sophisticate means. As the Probation Department points out, the defendant possesses specialized training in computer networking. At the time of his arrest, Downey told the FBI that he was operating his own Internet Relay Chat (or “IRC”) network or service called Rizon.net, and had 44,000 users on this network. This was not an illegal enterprise, but an Internet business that he owned, involving 42 servers linked in his network, three of which were servers he owned. Downey admitted that, to operate his botnet, he used compromised computers, mostly located in Asia, and that he primarily used his bot network to attack and/or retaliate against competing IRC networks.

It is not impermissible double counting to include points for both sophisticated means and special skill because they relate to two separate characteristics of the crime. The crime itself was complicated, technically complex, and involved a large number of methods and means that could only be called “sophisticated.” At the same time, the defendant possessed specialized knowledge, whether self-taught or otherwise, which gave him the necessary skills to commit this crime successfully. If a businessman paid a computer expert to create and launch a botnet, the businessman might be held accountable for using sophisticated means, but not for having any specialized skills. Here, Jason Downey had both.

With respect to computer skills, the complexity and expertise required to deploy a bot
-4-
virus and operated a bot network clearly do not fall within the kind of computer skills that can “be learned by the general public with minimal difficulty” which the Sixth Circuit has held insufficient to garner a two-point increase for special skill. United States v. Godman, 223 F.3d 320 (6th Cir. 2000)(finding “amateurish . . . common and ordinary computer skills” of desk-top publishing used to manufacture counterfeit not to be special skill). The Guidelines do not prohibit the application of both special skill and sophisticated means when appropriate. See United States v. Olis, 429 F. 3d 540, 549 (5th Cir. 2005)(applying both enhancements to tax accountant in complex fraud scheme).

Wherefore, the government respectfully requests the Court to impose a sentence within the guideline range contained in the plea agreement and the Presentence Report.

Respectfully submitted,

STEPHEN J. MURPHY
UNITED STATES ATTORNEY

s/ Terrence Berg
TERRENCE BERG
First Assistant U.S. Attorney
211 W. Fort St., Suite 2001
Detroit, MI 48226
Phone: (313) 226-9160
DATED: October 22, 2007

Attachment	Date	Size
GovtSentenceMemo.pdf	06/28/09 1:05 pm	20.19 KB

Sentence

The Jason Michael Downey sentence has been set as follows:

1. Prison term: The defendant is hereby committed to the custody of the United States Bureau of Prisons to be imprisoned for a total term of: 12 months and one (1) day.

2. Probation term: 3 years, no computer access without prior permission, and 150 hours of community service.

3. Restitution:
SOUTHO.NET $1,300.00
B2Netsolutions $310.00
Ingenieria $19,500.00
TOTAL: $21,110.00

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Sentence.pdf	06/28/09 1:05 pm	78.71 KB