Crime & Federalism

This is the first I've heard of a prosecution involving "modding" (Wiki description) an XBox: 

LOS ANGELES — Opening statements in the first-of-its kind Xbox 360 criminal hacking trial were delayed here Wednesday after a federal judge unleashed a 30-minute tirade at prosecutors in open court, saying he had “serious concerns about the government’s case.”

Is this prosecution really happening?

“I really don’t understand what we’re doing here,” US District Judge Philip Gutierrez roared from the bench.

Gutierrez slammed the prosecution over everything from alleged unlawful behavior by government witnesses, to proposed jury instructions harmful to the defense. When the verbal assault finally subsided, federal prosecutors asked for a recess to determine whether they would offer the defendant a deal, dismiss, or move forward with the case that was slated to become the first jury trial of its type. A jury was seated Tuesday.

Indeed, this prosecution is occurring. The federal prosecutors involved may have already subporned perjury, and most certainly violated the Rules of Professional Conduct. If you find this prosecution shocking, consider yourself in good company, as Judge Gutierrez exclaimed from the bench:

“What’s getting me more riled, it seems to me I cannot communicate the severity to you of what’s going on here.”

In United States v. Matthew Crippen, the defendant is charged with violating the Digital Millennium Copyright Act. The government alleges that Crippen modded XBox counsels in a way that allowed the counsels to play pirated games.

Modding, however, has legitimate purposes. Some people modd their XBoxes in order to play non-pirated, third-party software. Thus, under the DMCA, the government must prove that Crippen knew that his customers intended to play pirated games on the modded XBoxes.

Assistant United States Attorney Allen Chiu could not prove this element of the case using honest evidence. He thus submitted evidence that may have been obtained in violation of California law:

Among the judge’s host of complaints against the government was his alarm that prosecutors would put on two witnesses who may have broken the law.

One is Entertainment Software Association investigator Tony Rosario, who secretly video-recorded defendant Matthew Crippen allegedly performing the Xbox mod in Crippen’s Los Angeles suburban house. The defense argues that making the recording violates California privacy law. The other witness is Microsoft security employee Ken McGrail, who analyzed the two consoles Crippen allegedly altered. McGrail admitted that he himself had modded Xboxes in college.

Allen Chiu also elicited some highly suspicious testimony: 

The hiccup with Rosario’s testimony centered on whether Crippen was modding with the express knowledge that the undercover ESA agent wanted it done so he could play pirated games. After Crippen spent about 90 minutes re-flashing the console’s hard drive, Rosario said Crippen inserted a pirated game into the machine to test his hack.

“He produced a pirated video game. He placed it into the ROM he had just worked on. He initiated the game and it played. He showed me that the actual game would play,” Rosario testified.

But on cross examination, Rosario conceded he did not write that fact on any of his notes or reports. Nor did it appear on a secret video he took of the encounter. (Only two minutes of an edited video of the transaction was played to jurors, as Rosario said his computer ate the full version.)

Either Rosario is an incompetent investigator whose dog eats his homework, or his testimony was not entirely forthright. Either way, a federal judge wonders whether Rosario may have broken the law by recording his transaction with Crippen. 

The case should be dismissed based on prosecutorial misconduct. The federal prosecutors should be disciplined immediately. None of that will happen, as the United States Attorneys Office is like the mafia: They protect their own.

Even though Allen Chiu will not be punished for his unethical conduct, Los Angeles lawyers are nevertheless on alert that Allen Chiu is an unethical scumbag who will break the law in order to obtain a conviction.