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Robert Soloway's attorneys are asking Judge Pechman to review the magistrate's order that Soloway be detained until trial.

Among the claims:

• When he said that he isn't a US Citizen, he was just responding to taunting.
• When he threatened to release a list of Hotmail users in response to Microsoft's lawsuit, that was a "legitimate exercise in free speech."
• He is off his medications and his mental state is deteriorating.

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

UNITED STATES OF AMERICA,
Plaintiff,

v.

ROBERT ALAN SOLOWAY,
Defendant.

DEFENDANT'S MOTION FOR REVIEW OF DETENTION ORDER

I. INTRODUCTION.
Robert Alan Soloway ("Robert" herein), was arrested on May 30, 2007. He is charged in a multiple count indictment, alleging violations of 18 U. S. C. §§1341, 1343, 1037 (a)(2), 1028A, and 1956. None of the offenses alleged in the indictment raises a rebuttable presumption that Robert, who has no prior criminal history, is a risk of flight or a danger to the community. See 18 U.S.C. §§3142(e) and 3142(f)(1).

A detention hearing was held on June 13, 2007. Despite the fact that Pretrial Services recommended a PR release with conditions, Robert was ordered detained by Magistrate Judge Donohue.

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II. ARGUMENT.

A. A MAGISTRATE'S ORDER OF DETENTION IS REVIEWED BY THE DISTRICT COURT DE NOVO.

Upon a motion for review of a detention order entered by a Magistrate Judge, the district court reviews the Magistrate Judge's findings and conclusions de novo. United States v. Koenig, 912 F.2d 1190 (9th Cir.
1990).
[The district court] should review the evidence before the magistrate and make its own independent determination whether the magistrate's findings are correct, with no deference.

* * *

The point is that the district court is to make its own "de novo" determination of facts, whether different from or an adoption of the findings of the magistrate. It also follows ... that the ultimate determination of the propriety of detention is also to be decided without deference to the magistrate's ultimate conclusion. Id., at 1193 (citations omitted).

B. ROBERT SHOULD BE RELEASED ON HIS PERSONAL RECOGNIZANCE, SUBJECT TO REASONABLE CONDITIONS.

18 U.S.C. §3142(b) provides, in relevant part, as follows:

The judicial officer shall order the release of the person on personal recognizance, or upon an unsecured property appearance bond in an amount specified by the Court . . . unless the judicial officer determines that such release will not reasonably assure the appearance of the person as required or will endanger the safety of any other person or the community. (emphasis supplied)

Pursuant to 18 U.S.C. §3142(c), if the Court determines that the release described in §3142(b) will not reasonably assure the appearance of the person as required or will endanger the safety of any person or the community, the Court shall order the release of the individual subject to the least restrictive further condition or combination of conditions
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that will reasonably assure the appearance of the person and the safety of the community.

The Ninth Circuit holds that in evaluating the government's motion for detention

. . . we bear in mind that federal law has traditionally provided that a person arrested for a non-capital offense shall be admitted to bail [citations omitted]. Only in rare circumstances should release be denied. [Citations omitted.] Doubts regarding the propriety of release should be resolved in favor of the defendant. [Citations omitted.]

Release pending trial is governed by the Bail Reform Act of 1984 which, like its predecessor, the Bail Reform Act of 1966 [citation omitted], mandates release of a person facing trial under the least restrictive condition or combination of conditions that will reasonably assure the appearance of the person as required. [Citations omitted.] The Fifth and Eighth Amendments' prohibitions of deprivation of liberty without due process and of excessive bail require careful review of pretrial detention orders to ensure that the statutory mandate has been respected.

United States v. Motamedi, 767 F.2d 1403, 1405 (9th Cir. 1985).

In determining whether there are conditions of release that will reasonably assure the appearance of the person as required, the court is directed by the statute to take into account the available information concerning the factors set forth in 18 U.S.C. § 3142(g). These factors include whether the charged offense is a crime of violence, a Federal crime of terrorism, or involves a minor victim or a controlled substance, firearm, explosive, or destructive device. 18 U.S.C. §3142(g)(1). The offenses charged in this indictment do not include any of the offenses enumerated in §3142((g)(1).

The legislative history clearly establishes that the drastic remedy of detention is to be reserved to extreme cases.

There is a small but identifiable group of particularly dangerous defendants as to whom neither the imposition of stringent release conditions or the prospect of release can
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reasonably assure the safety of the community or other persons. It is with respect to this limited group of offenders that the courts must be given the power to detain release pending trial.

Senate Report No. 225, 98th Cong., 1st Sess. 6-7 (1983) printed in 1984 U.S. Code Cong. and Ad. News 3182, 3189 (emphasis supplied). "The wide range of release conditions available ensures, as Congress intended, that very few defendants will be subject to pretrial detention." United States v. Orta, 760 F.2d 887 (8th Cir. 1985) (emphasis supplied).

C. PRETRIAL SERVICES HAS RECOMMENDED A PERSONAL RECOGNIZANCE BOND WITH CONDITIONS.

After conducting an investigation, Pretrial Services has determined that there are conditions of release that will reasonably assure that Robert will appear as directed, and that adequately address the issue of danger to other persons or the community. Thus, Pretrial Services recommended to Magistrate Judge Donohue that Robert be released on a personal recognizance bond, with conditions. Those conditions include, but are not limited to, the following:

1. GPS monitoring;
2. Surrender passports;
3. Undergo mental health evaluation and follow treatment recommendations;
4. Not use or possess a computer, PDA, cell phone, etc., with internet access.

We agree that these conditions that will reasonably assure Robert's appearance and the safety of other persons and the community. Thus, we concur with Pretrial Service's recommendations in this case.

D. THE GOVERNMENT'S EVIDENCE DOES NOT ESTABLISH THAT ROBERT IS A FLIGHT RISK.

The government's detention motion alleges that there is a "serious risk" that Robert
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will flee if released. The government must prove that a defendant would flee "by a clear preponderance of the evidence." United States v. Motamedi, 767 F. 2d 1403, 1406 (9th Cir. 1985). However, the evidence presented by the government did not support the conclusion that Robert is a flight risk, and many of the magistrate judge's findings in this regard are either not supported by evidence, or are not rationally related to the issue of risk of flight.

First, Magistrate Judge Donohue found that Robert "has dual United States-Sweden citizenship," and that he has family in Sweden. Findings Nos. 1 and 2. While both of those findings are true (Robert's mother is Swedish and thus he has dual citizenship), they have little to do with risk of flight in this case. Robert has an eighty-five year old maternal grandmother who lives in Sweden. She does not speak English. Robert does not speak Swedish. Robert last saw her five years ago when he accompanied his mother to Sweden to celebrate his grandmother's eightieth birthday. Prior to that trip in 2002, he was last in Sweden (with his mother) in 1987, when he was eight years old.1 Robert also has a few aunts and uncles in Sweden, but he doesn't really know them.

[1 Although the magistrate judge made no mention of it, Robert also traveled internationally in 2003, when he accompanied his parents on a cruise in Norway, and in 2006, when he accompanied his parents on a cruise that commenced in Barbados and ended in Puerto Rico. Other than as described above, Robert has not traveled outside the United States since the age of five, and in all of his international travels, including the trips mentioned above, he traveled with his parents.]

Magistrate Judge Donohue also apparently found it significant, and thus made a finding, that Robert "had once boasted that the legal process will not affect him, stating that 'I am a Non-US citizen. "' Finding of Fact No. 1. That comment was made by Robert on an email marketing forum (similar to a chat room) on May 17, 2005, in
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response to taunts regarding the Microsoft lawsuit. See Government's Exhibit 2 (Bates No. 000049), a copy of which is attached hereto as Exhibit A. In actual fact, the statement about being a non-US citizen was not in the context of the legal process not affecting him. The full paragraph where Robert stated that he is a non-US citizen read as follows:

I'm a non-US citizen and will not file for bankruptcy, nor will my company, nor have I ever in the past, nor have I ever had any debt to the IRS with the taxes I gladly pay to them every year . . . EVER. Feel free to quote me on that one. Quit acting like you have a clue, because you don't. You know absolutely nothing. Like I said, its nice to finally see someone on this board that is truly clueless.

More troubling in both its lack of support in the record and its reasoning is Finding of Fact No. 4, in which the magistrate judge found that

The grand jury has found that there is probable cause to believe that the defendant has engaged in aggravated identity theft and sophisticated crimes involving the use of a computer and electronic mail. It is apparent that defendant is quite experienced and adept in the use of computers. The creation of new identities and travel documents would be a relatively simple task for the defendant.

While it is true that "the grand jury has found probable cause to believe that defendant has engaged in aggravated identity theft," there is no support in the record that Robert committed "sophisticated" crimes involving the use of computers; that Robert is adept in the use of computers; or that the creation of new identities and travel documents would be a relatively simple task for Robert.

Count 18 of the indictment charges Robert with aggravated identity theft involving the alleged unauthorized use of a credit card "to register and pay for the domain name 'colidsilver.com,' which domain was used to host the NIM website. . ." According to
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the owner of the credit card, there was an unauthorized $20.00 charge for the foreign purchase of the domain name colidsilver.com. Robert purchased that domain name from another individual, and did not know that the name had originally been purchased with a stolen credit card. It would make no sense for Robert to use a stolen credit card to purchase a domain name that was associated with his business. That would be similar to Robert using a stolen credit card to purchase items and then having the items delivered to his own home, where they could be easily traced to him. It defies reason and common sense to believe that anyone would use a stolen credit card to purchase a domain name that they actually intended to use. Nor would it make sense that Robert would use a stolen credit card to avoid a $20.00 payment, given the substantial income that the government alleges Robert was earning.

Counts 19 through 22 also charge aggravated identity theft, but on a completely different theory. In those counts, Robert is alleged to have sent emails with a header showing the recipient's name as both the sender and the recipient, e.g., from "JohnSmith@yahoo.net" to "JohnSmith@Yahoo.net." It is alleged that by sending emails in this manner, they were less likely to be rejected by a spam filter. It would be the same as sending an envelope through the mail using the addressee's name and address as both the sender and addressee. There is nothing "sophisticated" about sending such an email. Even more importantly, it does not follow that based on his ability to send an email in this manner it would also be a relatively simple task for Robert to create new identities and travel documents. Indeed, the government never argued that Robert possesses sophisticated computer skills. On the contrary, the government has communicated to the undersigned that it doesn't believe that Robert's alleged crimes require much computer
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knowledge or skill. Nothing in the record supports the conclusion that Robert would be able to create, or have easy access to, identification or travel documents. It should also be noted that the government has Robert's Swedish passport in its possession, and the undersigned has Robert's U.S. passport, which we have offered to surrender to the Clerk's Office.

Magistrate Donohue also found that

Defendant has not been candid about his financial assets. It appears that he has been involved in establishing off-shoreaccounts, placing funds in others [sic] names, and in setting up electronic accounts for later access.

Finding No. 7. This, too, has little support in the record. The government argued that it did not know what happened to Robert's money. It alleged that he had gross receipts over the last five years totalling approximately $1,000,000, but offered no evidence regarding his expenses, even though all of his business records had been seized by the government and were in the government's possession. The government also complained of Robert's "lavish" lifestyle, but refused to concede that this may have been where much of his money went. The defense proffered that Robert had little or no cash on hand or in the bank (he owes American Express over $100,000), and that his assets consist mainly of his extensive collection of clothing and shoes. Robert does not even own a car. Unfortunately, we could do little more than proffer this information, since all of the actual records have been seized by the government. The government did not carry its burden on this issue.

More importantly, there is not a scintilla of evidence that Robert has established or maintained an offshore bank account, or that he has any assets offshore. The only
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evidence relating to anything offshore was a reference to a blank application from an offshore credit card processor that was found in Robert's apartment. See Transcript of Hearing at p. 36. There is no evidence that Robert ever actually used an offshore credit card processor, but even if he did, that wouldn't mean that he had any money offshore. Credit card processors merely process credit card payments for a fee, and then deposit the funds in the merchant's account. That is all done by wire, so the physical location of the processor has nothing to do with where the money ends up.

There is no mystery to Robert's finances. All of his internet transactions were conducted using credit cards, checks, or secondary payment facilities such as PayPal. No cash payments were involved. All of the funds flowed into Robert's bank accounts, and are easily traceable. The only findings made by the magistrate judge that arguably address the actual issue of risk of flight are Findings No. 5 and 6. We do not dispute the fact that the court in Oklahoma entered an injunction, enjoining Robert from conducting certain activities, and that the grand jury has found probable cause to believe that Robert has violated the terms of that injunction. But it does not necessarily follow that because Robert may have violated the terms of a civil injunction, he will not comply with Court orders in this case and will flee the jurisdiction. At best, it is grounds to believe that Robert poses a risk of flight.

But the Bail Reform Act doesn't stop there. The Act provides that the Court shall release an individual on personal recognizance or an unsecured property bond unless such release will not reasonably assure the appearance of the person as required. Then, and only then, the judicial officer shall order the release of the person subject to the least
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restrictive further condition, or combination of conditions, that will reasonably assure the appearance of the person. 18 U.S.C. §1342(a), §1342(b), and §1342(c)(1)(B). We submit that the conditions recommended by Pretrial Services will reasonably assure Robert's future appearances.

D. THE GOVERNMENT'S EVIDENCE DOES NOT ESTABLISH THAT ROBERT IS A DANGER TO ANOTHER PERSON OR TO THE COMMUNITY.

Magistrate Judge Donohue also made a curious finding regarding "threats" allegedly made by Robert against people who have filed complaints against him. Finding No. 8. This finding is curious, because after first declaring that he was "making no specific findings regarding witness intimidation," he then observed in the same Finding that "[R]etribution the defendant has previously shown against those who have complained can just as easily be handled through the internet from abroad. "

First, it is important to clarify that no physical threats against anyone have ever been alleged. Nor is it alleged that Robert ever sent out viruses or "spyware." The alleged "threats" involve legitimate responses to actions--actions that in many cases were improper--that were taken against Robert. One example proffered by the government was a broadcast email seeking information on Robert Braver, who was at the time suing Robert. A copy of the email, which was admitted as Exhibit 1-10-2, Bates No. 000015, is attached hereto as Exhibit B. This court can judge for itself whether such an email can legitimately be called a threat making Robert a danger to another person or the safety of the community.

The government also referred to a second allegation in the same pleading from the Braver case (Exhibit 1-10, Bates Nos. 00005-9), this time complaining that Robert's
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counsel (not Robert) had sent a letter to Braver's counsel "stating, in essence, that [Soloway] would file a defamation lawsuit in California" against Braver unless Braver agreed to dismiss his lawsuit in Oklahoma. Threats of counterclaims are not at all unusual in litigation, and the actions of Robert's lawyers, who were doing their job and presumably acting within the Code of Professional Responsibility, do not constitute "danger" to anyone.

In yet another paragraph from the same pleading, which the government offers as another example of threats of intimidation (See Transcript at 17), it is alleged that Robert sent out a broadcast email attempting to intimidate Microsoft in the wake of Microsoft's lawsuit against Robert. A copy of the first and last pages, which were all that were offered in evidence (Exhibit 1-10-2, Bates No. 000019-20) is attached hereto as Exhibit C. Clearly, this is not an improper threat, but merely a legitimate exercise in free speech.

Another example of alleged threats and intimidation is found in Exhibit 1-10-2, Bates No. 000013-14. A copy is attached hereto as Exhibit D. In that matter, MagikMyth, International, Inc., sent a collection notice to Robert in the sum of $10,000. The problem was, there was no legitimate debt owed to MagikMyth. MagikMyth had never commenced a legal action against Robert, and thus had never obtained a judgment against him. Instead, they simply sent him a bill for $10,000, claiming that that was the penalty for sending them an unlawful spam. When Robert didn't pay, they sent a collection notice, in an effort to intimidate Robert into paying this illegitimate invoice. There does not appear to be anything unlawful in Robert's response to this "shake-down" attempt by MagikMyth, and certainly nothing in his response that would justify finding Robert a danger to any person or to the safety of the community.

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The only other alleged "threats" by Robert involved his responses to customers who had obtained charge-backs through their credit card company without following NIM's return policy, who then apparently wanted a refund from NIM as well. Robert responded by explaining the refund policy, and further explained that if the customer didn't pay for the product, they would be turned over to collection. See, Exhibit 3.

Where the government requests that an individual is to be held without bail due to that person's dangerousness to the community, the government must prove by clear and convincing evidence that the defendant is one of those rare individuals who pose such a danger to the community that they must be detained. See, United States v. Motamedi, supra; United States v. Walker, 808 F.2d 1309, 1310 (9th Cir. 1986). In fashioning conditions to assure the safety of the community, the courts are not to attempt to guarantee the safety of others in the community. United States v. Orta, 760 F.2d 887, 891 (8th Cir. 1985). Rather the courts are to consider what will reasonably assure such safety. One need look no further than the legislative history of the Bail Reform Act quoted above (at p. 4) to see that the evidence in this case does not rise to the level of dangerousness contemplated by the Act (certainly not by clear and convincing evidence). But even if it did, there are conditions that will reasonably ensure the safety of other persons and the safety of the community (e.g., a condition denying Robert access to the internet).

E. THE FDC IS UNABLE TO TAKE CARE OF ROBERT'S MEDICAL NEEDS.

Prior to his arrest, Robert was suffering from anxiety, depression, and Tourette's Disorder. A variety of medications was keeping these afflictions under control. The primary medications Robert was receiving were clonazepam (Klonopin), which he has been taking in small dosages for six years, and venlafaxine (Effexor). Unfortunately, Klonopin
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is not on the BOP formulary. During the first 45 days of his incarceration at the FDC, the medical staff weaned him off of the Klonopin (which is an addictive drug). The results were predictable. On August 1, 2007, Robert was seen by the medical staff, who noted:

"[Robert] appears miserable, c/o shaking, cold sweats, vomiting, trembling, racing heart, twitching, runny nose."

He was also complaining of severe anxiety, with suicidal thoughts, and involuntary body twitching that was keeping him up at night. It was noted that his Tourette's had previously been successfully treated with Klonopin, and the Tourette's symptoms were once again prominent in the absence of the Klonopin. A copy of the BOP, Psychological Data System, Consultation Sheet is attached hereto as Exhibit E-1. Dr. Grant Haven, the contract psychiatrist at the FDC put in a request for non-formulary drug authorization, providing as reasons:

Patient has extensive treatment history with many failures for his Tourette's and anxiety. Clonopin helps both. Tics prevent him from sleeping. Now 72 hours without sleep. No substance abuse history.

Dr. Haven also listed the other drugs that are on the BOP formulary that were tried without effect. These included Prozac, Paxil, Zoloft, Luvox, Effexor, Buspar, Haldol, Orap, and others. See copy of Non-Formulary Drug Authorization, attached hereto as Exhibit E-2. On August 17, a chart note confirms that the BOP denied the non-formulary request. A copy is attached hereto as Exhibit E-3.

Upon receiving notice that the BOP had denied the doctor's request for non-formulary drug authorization, the undersigned contacted Robert J. Palmquist, the warden at FDC SeaTac. Warden Palmquist then personally contacted the appropriate individuals at BOP headquarters in Washington, DC, with a request that the FDC be allowed to
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provide Robert with Klonopin. That request was also denied, without explanation.

As a result of the BOP's unjustified refusal to prescribe Klonopin, or any other generic drug from the same family of drugs, Robert's Tourette's symptoms have returned with a vengeance, particularly the uncontrollable body tics. His anxiety level has also increased dramatically, even reaching the point where he is experiencing suicidal ideation. Despite the fact that Robert has not been convicted of anything, and that he is presumed innocent, he is being treated by the Bureau of Prisons as though he is a convicted felon, not a pretrial detainee. Unless his medical conditions are brought under control, Robert will not be able to assist his counsel in his defense.

F. THE FDC WILL NOT ALLOW ROBERT TO HAVE ACCESS TO A COMPUTER.
Robert has been notified by the staff at the FDC that due to the nature of the charges in this case, he will not be allowed access to the computer room to review discovery in this case. The discovery consists of tens of thousands of pages. We have also been told that there is no place to keep paper copies of the discovery in this case at the FDC. While the legal staff and warden have confirmed to the undersigned that they will attempt to comply with any court order, they have also stated that it will create a severe hardship on the FDC, and will put a strain on their resources.

The Assistant United States Attorney and the undersigned have agreed not to reproduce the discovery until we know whether Robert will be released or detained. Clearly, we would prefer to have a copy of the discovery in an electronic format. However, if Robert remains detained and will not have access to a computer, then it will have to be done in paper form. That will be very expensive, and Robert does not have funds available to pay for copying the vast amount of documents in this case.

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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. Accordingly, we concur with Pretrial Services' recommendation for release, and further concur with the conditions they have recommended. Robert is also willing to abide by any other condition the Court may deem appropriate.

DATED this 6th day of September, 2007.

RICHARD J. TROBERMAN, P.S.
Attorney fbr Defendant
Robert Allen Soloway

Attachment	Date	Size
MotReviewDetentionOrder.pdf	09/07/07 1:54 pm	670.55 KB
MotReviewDetentionOrderExhs.pdf	09/07/07 1:55 pm	764.39 KB