United States V Devon Lynn Townsend Plea Agreement
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Case 1:07-cr-01363-WJ Document 20 Filed 06/29/2007 Page^r.lh.F 1 of 19 ,R" I-INITEDSTATES DISTRICT COURT JUN2 g 2ss7 FOR THE DISTRICTOF NEW MEX]CO MATTHEWJ.DYKMAN CLEFK UNITED STATESOF AMERICA, ) ) Plaintiff, ) vs. cr.No.ot-ck-1363PT DEVON LYNN TOWNSEND, Defendant. PLEAAGREEMENT Pursuantto Rule I I, Fed.R. Crim.P., the parties notify the court of the following agleementbetween the United StatesAttomey for the District of New Mexico, the Defendant,DEVON LYNN TOWNSEND,andthe Defendant's counsel, RAYMOND TWOHIG,ESQUIRE: REPRESENTATIONBY COUNSEL L The Defendantunderstands the Defendant'sright to be representedby an attomeyand is so represented.The Defendanthas thoroughly reviewed all aspectsofthis casewith the Defendant'sattorney and is fully satisfredwith that attorney'slegal representation. RIGHTS OF THE DEFENDANT 2. TheDefendant further understands the Defendant's rights: to be charged and prosecuted by indictnent; t. Case 1:07-cr-01363-WJ Document 20 Filed 06/29/2007 Page 2 of 19 b. to plead not guilty, or having alreadyso pleaded,to persistin that plea; to have a trial by jury; and d. at a trial: 1) to confrontand cross-examine adverse witnesses, 2) to be protectedfrom compelledself-incrimination, 3) to testifu andpresent evidence on the Defendant'sown behalf, and 4) to compelthe attendanceofwitnesses for the defense. WAIVER OF RIGHTS AND PLEA OF GUILTY 3. TheDefendant agrees to waivethese rights and to pleadguilty to Counts1 through3 of the Informationfiled in this matter.In Count1, the Defendantis charged with Stalking,in violationof 18U.S.C. $ 2261A(2XA).In Count2, the Defendantis chargedwith Unlawfulaccess to Storedcommunications, in violationof l8 U.S.C.$ 270l(a)(l) and(2) and(bX1XA). In Count3, theDefendant is chargedwith Unauthorizedfixation of andtrafficking in soundrecordings and music videosof live musicalperformances, in violationof 2319,4..Pursuant to the Forfeitureallegation in the Information,as set forth in further detail below, the Defendantfurther agreesto forfeit to the United Statesany and all interestshe may havein any and all unauthorizedaudio and visualrecordings of live musicalperformances obtained without consent of the performersinvolved. Case 1:07-cr-01363-WJ Document 20 Filed 06/29/2007 Page 3 of 19 SENTENCING 4. The Defendantunderstands that the maximumpenalty the Court can impose for each count of the Information is: For the Defendant'sviolation of I 8 U.S.C.5 2261A, the Stalking statute: l) a termof imprisonmentof not morethan 5 (five) years; 2) a fine not to exceed$250,000.00; 3) a term of supervisedrelease of not more than 3 (three)years that must follow any term of imprisonment. (If the Defendant servesa termof imprisonment,is thenreleased on supervised release,and violates the conditions of supervisedrelease, the Defendant'ssupervised release could be revoked-- evenon the last day of the term -- and the Defendantcould then be retumedto anotherperiod of incarcerationand a new term of supervisedrelease.); 4) a mandatoryspecial penalty assessment of $100.00;and 5) restitutionas may be orderedby the Courtpursuant to law, 18 U.S.C.$ 36634,and paragraphT of this agreement. b. In thecase of theDefendant's violation of l8 U.S.C.$ 2701(aXl) and(2) and(b)(l)(A), the Unlawfulaccess to storedcommunications statute: l) a term of imprisonmentof not more than 5 (five) years; 2) a fine not to exceed$250,000.00; 3) a term of supervisedrelease of not more than 3 (three)years that must follow any term of imprisonment. (If the Defendant servesa termof imprisonment,is thenreleased on supervised release,and violates the conditionsof supervisedrelease, the Defendant'ssupervised release could be revoked-- evenon Case 1:07-cr-01363-WJ Document 20 Filed 06/29/2007 Page 4 of 19 the last day of the term -- andthe Defendantcould then be retumedto anotherperiod of incarcerationand a new term of supervisedrelease.); 4) a mandatoryspecial penalty assessment of $100.00; and 5) restitutionas may be orderedby the Court pursuantto law, 18 U.S.C.$ 36634,andparagaphT of thisagreement. c. For theDefendant's violation of 18U.S.C. $ 2319A,the Unauthorizedfixation of and trafficking in soundrecordings statute: 1) a termof imprisonmentof not morethan 5 (five) years; 2) a finenotto exceed$250,000.00; 3) a termof supervisedrelease ofnot morethan 3 (three)years that must follow any term of imprisonment. (If the Defendant sewesa termof imprisonment,is thenreleased on supervised release,and violates the conditions of supervisedrelease, the Defendant'ssupervised release could be revoked-' evenon the last day of the term -- andthe Defendantcould then be retumedto anotherperiod of incarcerationand a new term of supervisedrelease.); 4) a mandatoryspecial penalty assessment of $100.00;and 5) restitutionas may be orderedby the Court pursuantto law, 18 U.S.C.$ 3663A,and paragaph7 of this agreement' 5. Theparties recognize that the federalsentencing guidelines are advisory, but that the Court is requiredto considerthern in determiningthe sentenceit imposes. 6. The United Statesreserves the right to makeknown to the United States ProbationOffice, for inclusionin thepresentence leport to be preparedunder Rule 32, Fed.R. Crim.P., anyinformation the United States believes may be helpfulto theCourt, 4 Case 1:07-cr-01363-WJ Document 20 Filed 06/29/2007 Page 5 of 19 includingbut not limitedto informationabout any relevant conduct under u.S.S.G. $ 181.3. 7. The Defendantagtees and acknowledges that the Court is not limited to orderingrestitution only to the amountof the particularoffenses to which the Defendant is enteringa plea of guilty, but may orderrestitution to include all amountsresulting from all of theDefendant's criminal conduct related to this case. DEFENDAI{T'S ADMISSION OF FACTS 8. TheDefendant admits to the following facts: a. By my signatureon this plea agreement,I am acknowledgingthat I am pleadingguilty becauseI am, in fact, guilty of the offensesto which I am pleading guilty. I recognizeand acceptresponsibility for my criminal conduct. Moreover,in pleadingguilty, I acknowledgethat ifl choseto go to trial insteadof enteringthis guilty plea,the United States could prove facts sufficient to establishmy guilt to all of the chargesto which I am pleadingguilty beyonda reasonabledoubt. I specifically admit the followingfacts related to the chargesagainst me, and declare under penalty ofpefury that all ofthesefacts are true andcorrect: (l). Fromon or aboutJanuary 1, 2006through on or about November16,2006, in BernalilloCounty in the Stateand District of New Mexico,and elsewhere,I usedan interactivecomputer service, and a facility of interstatecofilmerce' to engagein a courseof conduct,described in further detail in paragraphs2 through 19 5 Case 1:07-cr-01363-WJ Document 20 Filed 06/29/2007 Page 6 of 19 below,that caused substantial emotional dishess to a personin anotherState, that is, Mr. andMrs. chesterand Talinda Bennington in california. when I engagedin the courseof conductdescribed below, I wasacting with the intentto harass,with the intentto place undersurveillance with the intent to harass,and with the intent to causeboth of the Benningtonssubstantial emotional dishess. (2). During the time frame of the eventsdescribed in the Information,from approximatelyJanuary l, 2006 throughapproximately November 16, 2006,I wasliving in Albuquerque,New Mexicoand working as an employeeat the SandiaNational Laboratories(SNL) facility in Albuquerque. I worked as a tradesperson at SNL in the Technologyand Manufacturinggroup. In thatjob, I often worked in a securepart of the facility andhad accessto a terminal servernetwork which was connectedto theInternet. I alsohad a personalcomputer at homethat was connected to the Intemet. (3). I havebeen a fan of the altemativeor nu metal band Linkin Park. ChesterBennington is the lead singerfor Linkin Park. Talinda Benningtonis ChesterBennington's wife. Chesterand Talinda Bennington live in the Stateof California. I spenta lot of time on the Intemet learningabout Chester and Talinda Bennington. (4). I foundout ChesterBennington's personal e-mail address from a masse-mail that one of Mr. Bennington'sfriends sent out informingthe recipients Case 1:07-cr-01363-WJ Document 20 Filed 06/29/2007 Page 7 of 19 about an upcoming concert in which Mr. Bennington was going to perform. After I found out ChesterBennington's e-mail address,I useda computerlocated in New Mexico with interactiveaccess to the lnternet, and without authorization,gained access to a servef locatedin the Stateof California at yahoo.com,an Internet Serviceprovider. Once I was coffiected to yahoo.com,I was successfullyable to changethe passwordto Mr. Bennington'sprivate e-mail account. Once I resetthe password,I was able to review and downloadall of Mr. Bennington's private e-mail colrespondencein his accountat yahoo.com. I was also able to find out about Talinda Benninglon's e-mail addressfrom accessingher husband'saccount. (5). Over the courseof severalmonths, I was able to accessall sorts of private information about the Benningtons from their private e-mail accounts, including: (a). family pictures of the Benningtons and their minor children; (b). correspondencebetween Wamer Brothers Recordsand the business attomey for Linkin Park, including a copy ofa checkmade payable to ChesterBennington from the record companyas well as a copy of the recording contract between Wamer Brothers Records and the membersof Linkin Park; (c). information about a new home purchase by the Benningtons which included such documents as a home inspectionreport, imagesof