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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	07/11/07 1:47 pm	359.43 KB