Government's RESPONSE in Opposition to Soloway's Motion to Review Detention Order

Significant bits:

• The request to reconsider is untimely
• Soloway appears to have skipped town ahead of being prosecuted for spamming not once, but twice
• If he skipped to Sweden, they wouldn't extradite him back to stand trial or serve his sentence
• Not only does he not have close ties to Seattle, but he appears to have liquidated all of his assets after skipping from Oregon just ahead of being prosecuted there for spamming
• The BOP has relented. They are now allowing him the use of Klonopin and can make arrangements for him to have a non-network-capable laptop and two boxes of papers in his cell.

Without out further ado, I give you:

=================================
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

UNITED STATES OF AMERICA,
Plaintiff,

v.

ROBERT ALAN SOLOWAY,
Defendant.

GOVERNMENT’S RESPONSE IN OPPOSITION TO MOTION FOR REVIEW OF DETENTION ORDER

The United States of America, by and through Jeffrey C. Sullivan, United States Attorney for the Western District of Washington, and Kathryn A. Warma, Assistant United States Attorney for said District, files this Response in Opposition to the Defendant’s Motion for Review of Detention Order.

I. Introduction and Factual Background

On May 23, 2007, Robert Soloway (“Soloway”) was indicted by the Grand Jury on charges of Mail Fraud (ten counts), Wire Fraud (five counts), Electronic Mail Fraud (two counts), Aggravated Identity Theft (five counts), and Money Laundering (thirteen counts). The indictment also seeks forfeiture of four financial accounts, and a money judgment in the amount of $772,998.54. The charges and forfeitures are based upon a criminal scheme that likely dates back to as early as 1999, but the charges as currently filed pertain only to Soloway’s crimes since November of 2003 - when he first moved to the State of Washington.

Essentially, Soloway’s criminal scheme operated as follows: Soloway would transmit tens of millions of “ spam” e-mails to tens of millions of different e-mail
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addresses to advertise and link to the website of his own company, which has operated under a variety of changing names, but most prominently as “Newport Internet Marketing,” or “NIM.” The websites created and published by Soloway and NIM consisted of commercial advertisements for “broadcast email” services and products (i.e. , Soloway was offering, for a price, to either send out high volumes of e-mail messages on behalf of a customer, or to sell a software product to the customer that would enable them to send out their own high volume e-mail messages). The representations Soloway made on his websites were, however, false and fraudulent as to both the “services” and “product” that he offered and sold. Most notably among them: the “product” did not perform as advertised, or at all, and the “broadcast email service” that Soloway sold constituted “spam”; i. e., bulk and high volume commercial e-mail messages that contained false and forged headers and that was relayed using networks of proxy computers (“botnets”). Customers who purchased either the product or “ service,” and who complained thereafter or asked for refunds were threatened by Soloway, in electronic mail messages, with further economic harm and damaging credit reports if they did not “pay up.” Many customers with small businesses suffered damages when their businesses were accused of transmitting illegal spam, and were then “blacklisted” on the Internet as a result.

As part of his scheme, Soloway took a number of steps to hide his Internet tracks, including the use of a series of at least 50 successive domain names, that included broadcastemailcorporation.com, optinemail.com, theemailbroadcastingcompany.com, broadcastemailinc.com, broadcastemailworld.com, emailbroadcstingcompany.com, and permissionemailcorp.com as the domain names used to “host” his business website. And beginning in 2006, Soloway typically registered the domain names used for hosting the NIM websites through Chinese ISPs, which would not publically reveal that Soloway was the true registrant of these domain names. Soloway rented botnets from which he transmitted his spam, so that he could conceal the true originating Internet Protocol (“IP”) address, and make it appear,
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instead, that the spam had originated from an ever changing and random population of computers. Even more disturbing, however, was Soloway’s practice routinely of forging the “headers” of the tens of millions of spam advertisements he transmitted.

Soloway forged domain names and/or e-mail account names that belonged to other real people or organizations into the “from” address in the headers of his spammed advertisements. Besides thereby concealing his identity - and his responsibility - for the illegal spam, he made it appear as though other, innocent parties were responsible for his criminal conduct.

Soloway was arrested by federal agents at his penthouse apartment in the Harbor Steps complex, in downtown Seattle, on May 30, 2007. At his initial appearance on that same date, Magistrate Judge Donohue reviewed Soloway’s financial affidavit and, based on the information Soloway himself had provided, found that he did not qualify for appointed counsel, but appointed a Federal Public Defender for purposes of the initial appearance, only. The United States moved at the initial appearance for an order of detention, but a hearing on detention was continued for three days in order for the defendant to secure retained counsel. Two additional continuances were then granted at the request of the defendant, and his retained counsel, Mr. Troberman. 1

[1 Shortly after retaining Mr. Troberman, Soloway also retained a second attorney from California, Mr. Tony Capozzola, admitted pro hac vice for purposes of this case.]

At the detention hearing on June 13, 2007, the government presented numerous exhibits in support of its arguments for detention, to which Soloway through his counsel fully responded. At that hearing’s conclusion, and based upon his numerous findings of fact, Magistrate Judge Donohue ordered Soloway detained pending trial. Magistrate Judge Donohue’s finding of facts, and his reasons for imposing detention, are set forth in his June 13 Detention Order. (Attachment A, at 16-19).2

[2 References to Attachments will include their Attachment designation, together with their bates stamp number.]

The United States believed on June 13, as it does now, that Magistrate Judge Donohue properly ordered Soloway detained pending trial. On the grounds and for the
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reasons set forth below, the government respectfully urges this Court to order likewise.

II. Argument

A. Defendant’s Appeal Was Filed Untimely, in Violation of MJR 12 of the Local Rules for the Western District of Washington, and Should Therefore be Denied.

The Magistrate Judges’ Rules (“MJR”) of the Western District of Washington specify that “ [a]ny ruling by a magistrate judge, which by law is reviewable by a district judge, but as to which no review procedure is otherwise prescribed, shall be subject to review upon a motion filed within ten days of the entry of the ruling.”

The ruling that is the subject of this motion for review was entered by Magistrate Judge Donohue on the 13th of June, 2007. The deadline for a motion for review of that order was therefore June 23, 2007. Defendant’s motion for review, however, was not filed until September 6, 2007 - which is 75 days after the expiration of the ten day deadline as specified by local rules.

Defendant has offered no justification for this circumvention of local court rules. Absent any, Defendant’s Motion for Review should be denied.

B. Based on the Evidence that the Government Previously Has Presented, as well as Evidence It Will Present Herein and at the Upcoming Detention Hearing, the Court Should Find that No Condition or Combination of Conditions will Reasonably Assure the Appearance of the Defendant as Required.

The Bail Reform Act, codified at 18 U. S.C. §§ 3141-3150, authorizes and sets forth the procedures for a judicial officer to order the release or detention of persons arrested, and pending trial, sentence, and appeal. The Act requires a district court to order a defendant detained pending trial if “no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community . . .” 18 U. S.C. §3142(e). The burden of proof rests with the government to establish risk of flight by a preponderance of the evidence. United States v. Gebro, 948 F.2d 1118, 1121 (9th Cir. 1991). If the court determines that there is a serious risk the defendant will flee, it must determine whether some set of conditions will sufficiently vitiate that risk. United States v. Gentry, 455 F.Supp. 2d 1018, 1020 (D. Az. 2006).

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In making the determination whether conditions exist that would reasonably assure a defendant’s appearance, Section 3142(g) requires the court to take into account four statutory factors: 1) the nature and circumstances of the offenses charged, 2) the weight of the evidence against the person; 3) the history and characteristics of the person, including his character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, history relating to drug or alcohol abuse, criminal history, and record concerning court appearance at court proceedings; and 4) the nature and seriousness of the danger to any person or community that would be posed by the person’s release.

With these statutory factors as a backdrop, the United States asserts that the following facts and circumstances support a conclusion that Soloway is a risk of flight, and that no condition or combination of conditions will reasonably assure his appearance as required, or the safety of any other person and the community if he were to be released, pending trial.

C. Soloway Has an Established History of Fleeing Jurisdictions in Which He Potentially Faces Criminal Prosecution

Soloway began his fraudulent spamming business in California, as early as 1996.3 By mid-1999, complaints about Soloway’s spamming had been made by people and companies in several countries, including the Government of Japan and several State Attorneys General, and claims made of losses from the same of over $500,000.00. (Attach. C, at 69). A criminal investigation was opened, and a search warrant executed on Soloway’s California residence/business on 11/2/99. Based on the evidence seized and the attendant investigation (including an interview with Soloway in the presence of counsel), Officer Campbell of the Healdsburg, California Police Dept. requested that the Sonoma County D.A. file criminal charges against Soloway for
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violations of the California spamming law, a request approved by Off. Campbell’s supervisor on February 24, 2000.

[3 Additional details about Soloway’s fraudulent spamming business are set forth in the Affidavit in Support of Search Warrant sworn by SA Kenneth Schmutz on May 23, 2007 (MJ07-254), a copy of which is appended as Attachment B, at 21-56.]

Even before this request was approved, however, Soloway had suddenly departed the State of California and had relocated his business to Medford, Oregon by February 2, 2000. (Attach. D, at 71-73). There, out of the reach of California state authorities, Soloway immediately resumed precisely the same type of fraudulent spamming activity in Oregon.

By no later than August, 2003, the Oregon Attorney General’s Office had also received “a number of complaints” about Soloway’s business, that were conveyed to him. (Attach. E, at 79-87). And despite the fact that the lucrative proceeds Soloway realized in Oregon had enabled him to purchase three vehicles, a home, and amass $200,000 in money market accounts, (Attach. F, at 89-96), Soloway also then suddenly departed that jurisdiction; relocating his residence/business to Seattle late in 2003.

Common sense weighs against the sudden relocation of a going profitable business. Soloway relocated his profitable, on-going business not once, but twice - in each case fleeing a state in which he faced potential criminal prosecution. Given that evidence, it is reasonable to infer that he will even more likely flee in the face of certain prosecution.

D. Soloway Has an Established History of Failing to Appear in United States District Court

Late in 2004, Robert Braver, the owner of a small Oklahoma ISP, became so frustrated with the damages his business suffered due to Soloway’s relentless spamming that he filed a civil suit against NIM in Oklahoma state court, seeking relief under both Oklahoma and federal law. Soloway successfully initiated removal of the case to U. S. District Court, where it became Case No. CIV-05-210-T, in the W.D. of Oklahoma.

Once Soloway succeeded in having the case removed to federal court, however, he proceeded essentially to obstruct the case with a succession of dilatory tactics, culminating with a bald failure to appear for a noticed default judgment hearing. (Attach. G, at 98-144). Soloway then capped that failure to appear with the submission
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of an arguably perjurous affidavit in an attempt to have the default judgment set aside. (Id. , at 137-142). Indeed, Judge Thompson noted in his order denying that motion that “considerable evidence [had been presented to show]. . . that Mr. Soloway’s [affidavit] testimony is false.” (Id, at 143). He did not consider it necessary to make a specific finding in that regard, however, because “ regardless” of whether Soloway “has perjured himself,” he had “wholly failed to justify relief from the default judgment under applicable standards.” (Id, at 144).

The government respectfully urges the Court closely to review the attached docketing sheet and pleadings from the Braver case, which evidence Soloway’s clear failure to appear in U.S. District Court, and also his calculated obstructionist tactics.

E. Soloway Has an Established History of Repeatedly Violating a Continuing Order of a United States District Court Judge

Aside from entering a statutory damage award against Soloway in the amount of $10,075,000.00, Judge Thompson also entered a permanent injunction, as part of the default judgment, that permanently enjoined and restrained Soloway from spamming activity, specifically including:

a. Initiating the transmission of a commercial electronic mail message, to any computer involved in interstate commerce or communication, or a transactional or relationship message, that contains, or is accompanied by, header information that is materially false or misleading; . . . [and]

e. Relaying or transmitting a commercial electronic mail message that is unlawful under 15 U.S.C. 7704(a)4 from a protected computer or network accessed without authorization.

[4 Attachment H.]

(Id. , at 135). That permanent injunction was entered by the U.S. District Court for the W.D. Ok. on September 22, 2005. The government represents that evidence exists to prove that Soloway has violated that standing order of a United States District Court Judge virtually every day since. Indeed, the Grand Jury in returning the Indictment in this case signaled its finding that there was probable cause to believe Soloway has, from at least November, 2003, until May 23, 2007, repeatedly carried out precisely the conduct explicitly prohibited above. (Indictment, at paragraphs 27-30, pages 9-11).

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F. Soloway Has an Established History of Evading Legal Process and Abusing Court Ordered Discovery

In a declaration filed in the Braver litigation, Mr. Peter Valente, a Manager at I-5 Legal Support NW, in Seattle, Washington, declared under penalty of perjury that a process server with his company had attempted to serve legal process on Soloway at his apartment residence no less than 15 times between Dec. 22, 2004 and Mar. 16, 2005. (Attach. G, at 109). Soloway would never respond to the repeated knocking on his door, despite the fact that the process server could hear people present inside the unit.

In a separate civil action brought against Soloway in Superior Court in King County, Washington, by Microsoft, (also for spamming conduct), the Honorable William Downing, Superior Court Judge, found that Soloway had committed willful discovery violations, causing substantial prejudice to the plaintiffs such that they were entitled to a judgment in that case, by default. (Id. , at 114-115). A civil judgment was also thereafter awarded the plaintiffs in that case, against Soloway, in excess of $7,000,000.00.

While the context may thus change, Soloway consistently, in every such context and at every turn, has evidenced clearly his intentional and willful disrespect for the courts, the legal system, and the rule of law, as well as his apparent belief that he uniquely is above them all. 5 Given that evidence of his established behavioral history,
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it is reasonable to conclude that he will not appear and will make every attempt to flee or evade the proceedings in a criminal case in which the stakes for Soloway have become now so much higher.

[5 Remarkably, Soloway’s counsel takes issue in his Motion with Magistrate Judge Donohue’s finding in this regard, asserting that the Judge mistakenly found that a statement made by Soloway “about being a non-US citizen was . . . in the context of the legal process not affecting him. ” (Defendant’s Motion, at 6). He also attaches a portion of the referenced statement in support thereof. The statement in its entirety, includes the following text:

. . . There’s only one winner in the Microsoft suit against me, me. . . and in regards to the braver suit, if he doesn’t drop the case on me shortly, I will bring it all the way to trial costing him a fortune and win, as I always do, not to mention he will have about $500, 000 in legal bills defending himself from some of the best legal firms in 4 states due to his previous abuses in the telemarketing and junk fax arena regarding previous individuals that used to reside near his location. . . . I always win. . regardless of the judgment amount. . . losing is not an option, and I never ever, ever, have to pay a single cent to anyone. . . :)

Now shoo. . . before I laugh any further at you and your hilarious statements acting like you have any factual idea of what has and is going on in my life or my business. . .
-Robert Soloway
-Proud Spamhaus TOP 10 Emailer in the World
-Legitimate Email Marketer Since 1996
-Never EVER Paid a Single PENNY to ANY Lawsuit Outcome or Settlement

]

G. Soloway is a Swedish Citizen, who has Family Connections in Sweden, and Extradition from Sweden Would Not Be Possible

Soloway secured Swedish citizenship in August 2001, which was a date well after he had initiated his fraud and criminal spamming scheme, and after he was aware that at least one jurisdiction (California) had opened a criminal investigation of the same. (Attach. I, at 155).

A copy of the Treaty between the United States and Sweden governing extradition has been obtained from the U.S. Dept. of Justice, Office of International Affairs (“OIA”). (Id. , at 156-177). Article 7 speaks to extradition of citizens. A Senior Trial Attorney with OIA has further informally advised that, “according to the Swedish Ministry of Justice, the Swedes will not extradite their nationals. Swedish law prohibits it.” 6

[6 e-mail communication dated June 28, 2007, from L. Holliday, OIA.]

As noted in his own motion, Soloway has close family relations in Sweden. As noted below, and will be further developed at the hearing on this matter, Soloway’s criminal enterprise has been extremely lucrative, and he has acted quite deliberately to conceal his financial assets. Also clearly evidenced in this case is Soloway’s history of stealing and using the identities of other real people to further his crimes, and his sophistication in the use of computers and the Internet. Given all of the established facts and circumstances, it is reasonable to conclude that, if released, Soloway could well flee to Sweden, and once there, the United States would not be able to extradite.

He would not only escape from justice, but would be capable immediately of resuming his Internet based criminal conduct from abroad.

H. Soloway Has No Significant Ties to the Local Community, and Has Defied and Evaded State Legal Requirements and the Directives of Local Law Enforcement with Respect to Those Ties

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Soloway took up residence and began operating his fraudulent spamming business in Seattle in November of 2003. In July of 2005, Soloway was issued a traffic citation at approximately 4:00 am, on a Sunday morning, in Pioneer Square for the “extremely loud car stereo” he was playing in his convertible Mercedes. (Attach. J, at 180). As part of that citation, it was noted that Soloway had neither a valid Washington vehicle nor driver’s license, even though other documents showed Washington residence for at least five months prior. (Id, at 180). Soloway was cited for Public Disturbance, as well as for an improper vehicle license, and also explicitly warned about the failure to obtain a Washington driver’s license. Despite his continued residence, and “business” operations in Washington thereafter until his arrest in May of 2007, however, Soloway defied the explicit warning of a Seattle Police Officer regarding the need for a valid Washington driver’s license. He has failed, as well, to register his “business” with the State of Washington, as required. (Id. , 179, 182, 183).

And although he previously owned a home in Oregon, and has apparently earned approximately $1,000,000.00 in proceeds since residing in Washington, Soloway has spurned home ownership in this community in favor of the more “ liquid” option of renting an expensive penthouse apartment. 7 He likewise leases, rather than owns, his current high-end Mercedes convertible. He has no immediate family in the area, and the only “employment” he has had while in Washington is the fraud and criminal spamming activity that he has engaged in, “solo,” from his penthouse apartment.

[7 Soloway’s annual rent for this apartment was $35,000. 00. (Attach. K, at 197).]

I. Soloway Has Earned Substantial Profits from His Illegal and Fraudulent Activities, and has Acted Deliberately to Conceal Those Profits and Funds By Moving Them Through a Multitude of Online, Credit, and Banking Accounts

Soloway’s devious financial machinations are outlined in the May 23, 2007 Affidavit of SA Silvia Reyes in Support of Seizure Warrants. (Attachment K, at 185). The government expects to call SA Reyes as a witness at the hearing, to provide further detail regarding the same.

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In his Motion for Review of Detention Order, counsel for Soloway represents that, “Robert does not even own a car.” Defendant’s Motion, at 8. While it may be true that Soloway does not currently “even own a car,” the photos and documents at Attachment L (201-213), depict and document the Mercedes convertible he has most recently been leasing, as well as both a BMW and Porsche that were also in his possession, if not “ownership,” in 2006. The fact that Soloway has “ divested” himself of ownership/possession of at least two of these three expensive automobiles is yet another indication of liquidating assets in a way that would facilitate quick flight.

J. Soloway Has an Established History of Threatening and Retaliating Against Victims Who Have Questioned His Fraudulent and Spamming Activities, and also of Concealing His Own Identity, Stealing the Identities of Other Real People, and Moving Money Through the Accounts of Others

Numerous complaints evidence Soloway’s practice of routinely stealing the online identities of other real people, and forging them into his spamming headers. A representative sample is at Attachment N, at 219. The government expects to call two witnesses at the hearing, who will provide testimony regarding other examples of Soloway’s retaliatory actions, and also his actions in co-opting others to use financial
accounts under their names to move his criminal proceeds.

K. The Evidence Against Soloway is Overwhelming, and the Sentencing Potential is Significant

While the courts have held that, as among the §3142(g) factors, the “weight of the evidence” is “ least important,” it remains a factor to be considered. Gentry, 455 F.Supp. 2d at 1020. The government represents that the evidence, including hundreds of complaints, as well as corroborating electronic data, is without doubt nothing short of “overwhelming” in this case.

The courts have also held that the prospect of a lengthy sentence is legitimately considered as a factor that will increase the likelihood of flight. United States v. Gebro, 948 F.2d 1118, 1122 (9th Cir. 1991). The government has made a good faith computation of the Sentencing Guideline outcome should Soloway be convicted after a trial. Attachment P, at 226. The sentencing range that results, taking into account all
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applicable enhancements, is for a term of imprisonment of from 192-234 months, (16-19 years). That is of course a “lengthy” sentence, and yet one more factor, in addition to the other myriad factors itemized above, that combine to exceed the “preponderance of evidence” needed to establish that Soloway is a risk of flight, and that there are no conditions that will reasonably assure his appearance as required, in this case.

L. Soloway’s Medication Issue Has Been Resolved, and Soloway Can Have Reasonable Access to Discovery Materials, Both Paper and Electronic, at FDC

Ms. Maggie Ogden, Attorney Advisor, BOP, informed the undersigned by telephone on this date that further collaboration among BOP personnel has resulted in a decision to uniquely allow Soloway to have Klonopin prescribed and made available to him, although it is not routinely allowed for BOP inmates. Ms. Ogden further advised that the FDC can make a laptop computer, that is not connected to the Internet, available to Soloway for use, if needed, to review electronic discovery materials.8 He will also be allowed to keep up to two boxes of paper discovery records, at a time, in his own cell, with the ability to “ swap out” those boxes for others, as required.

[8 Such an arrangement was recently made for two of the “Hell’s Angels” defendants.]

III. Conclusion

On the grounds and for the reasons set forth above, the defendant’s Motion to Review the Detention Order should be denied, and this Court should order that Soloway continue to be detained, pending trial.

DATED this 13th day of September, 2007.

Respectfully submitted,

JEFFREY C. SULLIVAN
United States Attorney

/s/ Kathryn A. Warma
Assistant United States Attorney
United States Attorney’s Office - WDWA
700 Stewart Street, Suite 5220
Seattle, Washington 98101-1271

REPLY to Response to Motion for Review of Detention Order

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

UNITED STATES OF AMERICA,
Plaintiff,
v.

ROBERT ALAN SOLOWAY,
Defendant.

DEFENDANT'S REPLY MEMORANDUM IN SUPPORT OF MOTION TO REVIEW DETENTION ORDER

I. INTRODUCTION.

Before responding to the legal arguments raised in the government's Response in Opposition to Motion for Review of Detention Order, a few comments are in order regarding the government's factual summary. While Mr. Soloway disputes many of the government's factual allegations, including the factual basis for the crimes alleged, now is not the time to try this case. Those disputes will properly be resolved at some future date. But some matters cannot go without a response at this time.

Contrary to the government's assertions, Mr. Soloway made no effort to "hide his Internet tracks." Government's Response ("Response" herein) at 2. Robert used many different domain names, not to hide his tracks, but because some ISP providers shut down his domain sites in response to complaints. If a site was shut down, he opened another.
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But all of the emails he sent from those sites were linked to him and his company. Otherwise, he couldn't have done business (if people didn't know the identity of his company, they couldn't purchase his products). He began using Chinese sites because they would not shut him down, and their domain sites were cheaper than other sites.

Second, by placing the recipient's name in the header of an email as both the sender and the recipient (e.g., to JoeSmith@aol.com, from JoeSmith@aol.com), Mr. Soloway did not "conceal his identity - and his responsibility- for sending the emails. "1 Response at 3. If the emails were read, they would link directly to Mr. Soloway's business, Newport Internet Marketing. Obviously, the recipients of the emails were not fooled into thinking that they had sent the emails to themselves. That would have been pointless. The whole idea behind the email was to attract business to Soloway's internet marketing company. The responsibility for who sent the email was thus unmistakable. The "forged" header was merely a device to avoid a spam filter.

[1 It is this conduct that the government has labelled "aggravated identity theft."]

II. ARGUMENT.

A. MJR 12 OF THE LOCAL MAGISTRATE JUDGE'S RULES DOES NOT APPLY TO REVIEW OF A MAGISTRATE JUDGE'S ORDER OF DETENTION.

MJR 12 provides, in relevant part, as follows:

MJR 12. APPEALS TO DISTRICT JUDGE
* * *
(c) From Other Orders. See also Rules MJR 3(b) and 4(c).
Any ruling by a magistrate judge, which by law is reviewable by a district judge, but as to which no other review procedure is otherwise prescribed, shall be subject to review upon a motion filed within ten days of the entry of the ruling. (emphasis supplied)

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By its express terms, this rule does not apply to review of a magistrate judge's order of detention, because review of a magistrate's detention order is prescribed in MJR 11, which provides as follows:

MJR 11. REVIEW OF CONDITIONS OF RELEASE
A district judge shall conduct any review of a magistrate judge's order of release or detention, pursuant to 18 U.S.C. §3145(a) or (b).
All other applications for review of conditions of release in criminal cases shall be heard by a magistrate judge unless otherwise directed by a district judge.

MJR 11 contains no time limit for filing such a motion. 18 U.S.C. §3145(b) also contains no time limit for filing a motion for review of a Magistrate's order of detention. Moreover, review of a magistrate's order of detention is not an appeal.2

[2 Whereas MJR 12 is entitled "Appeals to District Judge," review of a magistrate's order of detention is not an appeal.

But the person detained then has a right to "file, with the court having original jurisdiction over the offense, a motion for revocation or amendment of the order." Id. at §3145(b). It is not without significance that this provision is for a motion to revoke or amend, not an appeal, and that it is made in the court of original jurisdiction. See Thibodeaux, 663 F.2d at 522 ("Because the district court was the court of original jurisdiction of the felonies charged, the district court judge was not exercising appellate jurisdiction"). That court, unlike a court of appeals, is equipped to explore and redetermine factual issues if that proves necessary.

United States v. Koenig, 912 F.2d 1190, 1192 (9th Cir. 1990).]

B. MR. SOLOWAY DOES NOT HAVE A HISTORY OF FLEEING JURISDICTIONS IN WHICH HE POTENTIALLY FACES CRIMINAL PROSECUTION.

The government has constructed a clever, but deceptive, argument that if true would provide a credible basis to believe that Robert is a risk of flight. The argument, however, is constructed with smoke and mirrors, and is undermined by the actual facts.

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While it is true that Mr. Soloway was the subject of a complaint in California in 1999, it is not true that Robert fled the jurisdiction in order to avoid prosecution. In fact, he had an attorney representing him during the entire period that the investigation was open, including after he relocated to Oregon. The attorney, Stephen Gallenson of Santa Rosa, California, kept the police and prosecuting attorney apprised of Robert's address, and he was never "out of reach of California state authorities." The end result was that after a thorough investigation, the State declined to prosecute Mr. Soloway. See Declaration of Stephen Gallenson, a copy of which is attached hereto as Exhibit A. Lamentably, the government chose not to inform this Court of the prosecutor's decision not to prosecute, preferring instead to leave the false impression that the California investigation was somehow derailed because Mr. Soloway slipped away in the middle of the night.

Likewise, Mr. Soloway did not leave Oregon because he was under investigation. This is borne out by the government's own exhibits. According to the government, Mr. Soloway "suddenly departed that jurisdiction; relocating his residence/business to Seattle in late 2003. " Response at 6. The government also observes that "by no later than August, 2003" the Oregon Attorney General's Office had received a complaint about Mr. Soloway's business. From the government's exhibits, it appears that the first complaint received by the Oregon Attorney General was on August 10, 2003. Government's Attachment E, Bates No. 000075. However, Mr. Soloway was not notified of the existence of the complaint until September 1, 2004, almost a year after he had moved to Seattle. Government's Exhibit E, Bates No. 000080. Thus, Mr. Soloway's move to
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Seattle could not have been motivated by knowledge of the Oregon investigation, which also did not result in any charges being filed.

C. THERE IS NOTHING UNLAWFUL OR EVEN IMPROPER IN CHOOSING NOT TO DEFEND AGAINST A CIVIL ACTION.

Mr. Soloway was sued in the State of Oklahoma by Robert Braver (who is reportedly a serial filer of civil suits claiming damages based on alleged unlawful emails). Initially, Mr. Soloway retained counsel to defend against the action. His counsel then made a strategic decision to remove the action to federal court. However, as the litigation progressed, Mr. Soloway's attorneys withdrew from the case in a fee dispute. Mr. Soloway, bled dry by legal fees in the Microsoft suit, found it economically unfeasible to continue to defend the action in Oklahoma, and defaulted. A substantial civil judgment was entered against him and his company, as well as a restraining order, enjoining similar conduct in the future.

The government now equates Mr. Soloway's decision to default in the civil action with a "clear failure to appear in U.S. District Court." Response at 7. But allowing a default judgment to enter in a civil action is not the same as failing to appear in a criminal case, and the fact that Mr. Soloway defaulted in a civil case cannot support an argument that he will not appear in this case. That is, quite simply, comparing apples to oranges.

D. MR. SOLOWAY'S CONNECTIONS TO SWEDEN ARE MINIMAL AND DO NOT ESTABLISH THAT HE IS A FLIGHT RISK.

Mr. Soloway has dual United States/Swedish citizenship by virtue of birth, pursuant to Swedish law (a child born to a Swedish mother is automatically a Swedish citizen) that went into effect nine days before his birth. Robert's mother obtained Robert's first Swedish passport in 1991 (at age 11) based on advice she received from a U.S. Customs
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official. See declaration of Rachelle Soloway, attached hereto as Exhibit B. To avoid losing his Swedish citizenship, it was necessary for Robert to make application to the Swedish government for permanent citizenship before age 22. Accordingly, Robert submitted an application in 2001, just prior to his 22nd birthday. The application was approved on July 10, 2001. It had nothing to do with the fact that "he was aware that at least one jurisdiction (California) had opened a criminal investigation . . . " Response at 9. In fact, at the time Robert obtained his permanent Swedish citizenship, he was aware that the California investigation had been closed with no charges having been filed.

As set forth in his Motion for Review, Robert's connections to Sweden are quite tenuous. His only "close" relative in Sweden is his eighty-five year old grandmother, who he has seen only once in the last twenty years (on a trip with his mother to celebrate his grandmother's eightieth birthday). Robert does not speak Swedish, and his grandmother does not speak English.

The government also complains, without any factual support, that Mr. Soloway has a "history of stealing and using the identities of other real people to further his crimes." Response at 9. The only allegations of identity theft, other than Count 18 of the indictment--which Robert vehemently denies--involve Robert's use of "forged" headers in emails in which he substituted the recipient's name for his own in order to avoid spam filters. However, those emails linked directly to Robert's business. The government has not produced evidence of a single instance where Mr. Soloway obtained identification documents of a another person, or that he has the capability of doing so.

Even more disingenuous is the government's argument, made for the first time
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here, that Robert is "sophisiticat[ed] in the use of computers and the internet." The government never made that argument at the detention hearing, and for good reason. Prior to Magistrate Judge Donohoe making that finding (without factual support in the record), AUSA Warma on more than one occasion told counsel that the government did not believe that Robert's computer skills were at all sophisticated. During the search of Robert's office, which was in his home, FBI agents found one lone computer. Shortly after Robert's arrest in this case, Ms. Warma, referring to Robert's computer, was quoted in the media as saying "That wasn't a highly powered, screaming computer or even a high end laptop as one would expect to see." Others, who have been following and commenting upon Robert's alleged spam scheme on the internet with almost religious zeal, have observed:

Flood Robert strikes me as not that bright with computers.
I can back this up as

1. he can't write to cd media (thats if he did it) that s usings windows as well

2. latest domain register is a full on Chinese site (I somehow doubt Robert writes chinese)

3. web designs are ripped off from others

4. most hosts appear to be windows boxes.

http//blog.opsan.com/archive/2006/05/25/28138aspx.

Finally, the government surmises that "it is reasonable to conclude that, if released, Soloway could well flee to Sweden, and once there the United States would not be able to extradite. " Notably, however, even the government doesn't go so far as to suggest that if released it is likely that Robert would flee to Sweden. The fact that he could flee (although without a passport that would be impossible) is not a basis to detain him. The
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standard the government must meet is to establish by a clear preponderance of the evidence that Mr. Soloway is a flight risk, and that there are no conditions, or combination of conditions, that will reasonably assure his appearance. United States v. Motamedi, 767 F.2d 1403, 1406 (9th Cir. 1985).

Moreover, despite its protestations about Swedish law prohibiting extradition, the Convention on Extradition Between the United States of America and Sweden, attached to the Response as Exhibit I, expressly provides authority for the extradition of Swedish nationals to the United States for the very crimes for which Robert stands accused. Article II of the Convention provides, in relevant part, as follows:

Extradition shall be granted, subject to the provisions of this Convention, for the following offenses:
. . .
Making use of the mails or other means of communication in connection with schemes devised or intended to deceive or defraud the public or for the purpose of obtaining money under false pretenses.

Article VII provides that while there is no obligation to grant the extradition of a person who is a national of the requested State, "the executive authority of the requested state shall . . . have the power to surrender a national of that State if, in its discretion, it be deemed proper to do so. " Thus, contrary to the government's assertion, Response at 9, the Convention does not prohibit extradition of a Swedish national for the crimes alleged in this case.

E. MR. SOLOWAY HAS SIGNIFICANT TIES TO THE SEATTLE COMMUNITY.

Robert has lived in Seattle for over four years. This is his home. Other than his parent's home in Palm Desert, California, he does not have ties to any other community.
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Robert's uncle and his family are long time residents of Seattle. His parent's are frequent visitor's to Seattle. He has many cousins here, as well as dozens of friends. Indeed, during the detention hearing the government made reference to the large parties that Robert threw for his many friends. And, as the government notes, the rent on his apartment was prepaid for six months, and the premises are leased through July, 2008.

The government also complains that Robert liquidated two "expensive" vehicles in 2006. The 1996 BMW, with 145,290 miles, was sold to his parents for $6,262. Response, Attachment L, Bates Nos. 000207-000208. The 1999 Porsche, with 53,200 miles, was sold for $39,500. Attachment L. Bates Nos. 000209-000210. However, of the $39,500 sale price, approximately $36,500 went to the bank to pay off the bank loan secured by the car. Only $3,000 went to Robert. The vehicles were liquidated because Robert could no longer afford to keep them. This is not an indication of facilitating quick flight. It is an indication that he was cash poor.

F. THE USE OF OTHER PEOPLE'S PAYPAL ACCOUNTS WAS NEVER DONE TO HIDE ASSETS.

All of Robert's internet sales were dependent on electronic payments. The business did not accept cash or checks. After the Microsoft suit, Robert's PayPal accounts were frozen. He then offered to pay some friends to receive funds on his behalf. He agreed that if his friends used their Paypal accounts to receive the funds, Robert would pay them a percentage of each transaction. They would then write a check payable to Newport Internet Marketing for the amount of the transaction, less their fee. Robert then deposited the checks into the NIM account. Thus, there was no effort to disguise the income, since it all went into NIM's bank account.

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G. THE CHANGE IN ROBERT'S MEDICATION CAME ONLY AS A RESULT OF THE MOTION FOR REVIEW OF DETENTION ORDER BEING FILED.

The undersigned counsel has been advised by the legal staff at the FDC that the Bureau of Prisons ("BOP" herein) reversed itself with respect to prescribing Klonopin for Robert only after being confronted with the allegations raised in Mr. Soloway's motion for review of the detention order. Because the FDC was concerned that the Court might order the BOP to prescribe proper medication if Robert was not released, District Counsel for the BOP finally prevailed upon the appropriate authorities to reverse their position. While it is commendable that the BOP has now agreed to prescribe Klonopin for Robert, it is lamentable that they did so only because they feared judicial intervention, and that Robert had to needlessly suffer for two months.

With respect to providing Robert with a computer, counsel has also been advised that while a computer can be made available to him, Robert would "not have the more open access that other inmates have" in terms of time available to him, because he will not be granted access to the room where the computers are located. Instead, they will give Robert access to a laptop computer in a visiting room, but that access would likely be limited, at least initially, to two hours twice a week.

H. EVEN IF THE COURT CONCLUDES THAT MR. SOLOWAY IS A RISK OF FLIGHT OR A DANGER TO THE COMMUNITY, THERE ARE CONDITIONS, OR A COMBINATION OF CONDITIONS, THAT WILL REASONABLY ASSURE HIS APPEARANCE AND THE SAFETY OF THE COMMUNITY.

Pretrial Services has recommended Robert's release on his personal recognizance, with conditions. We concur with the conditions Pretrial Services has recommended. However, if the Court is not satisfied with those conditions, the Court could also impose additional conditions, including a third party custodianship, or placement in a half-way
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house.3 Mr. Soloway's parents are also willing to allow Robert to live with them (in California) and to supervise him pursuant to 18 U.S.C. §3142((c)(1)(B)(i). They would also be willing to live with Robert in his apartment in Seattle. Such conditions are clearly preferable to detention, in that Robert's release will greatly enhance his ability to assist his counsel in his defense.

[3 We do not advocate for placement in a half-way house, because despite the substantial restriction on his liberty, Robert would receive no credit for such time against a possible sentence of incarceration. ]

III. CONCLUSION.

For all of the reasons hereinabove set forth, there are conditions that will reasonably assure Robert's appearance at all future hearings in this case, and that will also assure the safety of other persons and the community. We concur with Pretrial Services' recommendation for release, and with the conditions they have recommended. Robert is also willing to abide by any other condition the Court may deem appropriate.

Accordingly, we respectfully request the Court to revoke the detention order and to order Robert's release on conditions.

DATED this 17th day of September, 2007.

RICHARD J. TROBERMAN, P.S.

By: ___________________________
RICHARD J. TROBERMAN
#6379,
Attorney for Defendant
Robert Allen Soloway

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EXHIBIT A
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DECLARATION OF STEPHEN M. GALLENSON
I, Stephen Gallenson, declare:
1. I am an attorney licensed by the State of California to practice before all courts in said state.
2. I am a partner in the Law Offices of Andrian & Gallenson, whose business address is 1100 Mendocino Avenue, Santa Rosa, California 95401.
3. During 2000, I represented ROBERT SOLOWAY and his company, Newport Internet Marketing, in connection with an investigation concerning possible violations Business & Professions Code §17538.4 , which regulated the transmission of unsolicited advertising material.

4. During the course of the investigation Mr. Soloway and I met voluntarily with an investigator with the Healdsburg Police Department. Thereafter, I had discussions with the Sonoma County District Attorneys Office regarding this matter.
5. At all times material hereto, I kept the District Attorneys Office informed as to my client's location, including the fact that he was then residing in Oregon.
6. After completing his review of the file, the District Attorney advised me, in writing, on June 22, 2000, that since the reports he had received dealt with complaints lodged by only one consumer and since the conduct did not demonstrate a pattern of unlawful business practice, no further action was contemplated.

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I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge.

Executed this 17 day of September 2007 at Cloverdale, California.

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EXHIBIT B
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AFFIDAVIT OF RACHELLE SOLOWAY
On July 1, 1979, Sweden inaugurated a law that a child born after that date to a Swedish mother would automatically become a Swedish citizen. Robert Soloway was born nine days after this law went into effect and was a Swedish citizen upon birth.

I did not apply for a Swedish passport for Robert until 1991 when a U.S. customs agent told me that as I was traveling on a Swedish passport and Robert on a US passport, Robert and I would be separated in case of an airline highjacking and that I should apply for a Swedish passport for Robert.

Consequently, I did apply and Robert was issued his first Swedish passport on June 25, 1991 (see attached copy of passport). He has continued to maintain a valid Swedish passport (see acceptance below).

The following verbiage is taken from the Swedish Immigration Board posted at
http://www.migrationsverket.se/english.jsp?english/emedborg/emedborg.htm...

"Swedish citizenship legislation is based on the origin principle. This means it is the parents' nationality that determines the child's nationality.

A child born to a Swedish mother automatically receives Swedish citizenship at birth (as of 1 July 1979). The child of a Swedish father also receives Swedish citizenship if the birth takes place in Sweden. If the father is married to the child's foreign mother, the child receives Swedish citizenship regardless of where the birth took place."

At age 22, one has to request to the Immigration Board to receive permanent Swedish Citizenship. This was accepted on July 10, 2001, according to the law (2001.82), Request #: 9-578470, signed by Mr. Conny Ahlberg and Ms. Johanna Stromberg.

Encls:
Copy of Robert Alan Soloway's first Swedish passport
Pages 1 and 9 of the text from the Swedish Immigration Board website.