23 June 1997, ZDNet: New twist/ Feds Recant on Mitnick's Fugitive Status Back in 1994, a supposedly fleeing Kevin Mitnick told anyone who would listen he really wasn't a fugitive from justice. He claimed to be just a paranoid hacker who didn't want to stick around once his probation was up. As it turns out, he may have been telling me the truth. In a federal court in Los Angeles, the government admitted it had made a mistake in saying that Mitnick was on the lam. The admission may put an entirely different twist on the case. If Mitnick wasn't really a fugitive, a couple of probation violations mistakenly escalated into one the biggest manhunts in cyberspace. Petty offenses by Mitnick -- probably punishable by an extension of his probation -- spun into a nationwide cat-and-mouse game that drew a frenzy of media hype. Along the way, Mitnick, who may have been no more than a scofflaw, instead became the notorious criminal mastermind the authorities apparently wanted him to be. The change in the government's stance came to light last week during a routine pre-sentencing hearing before Federal Judge Mariana Pfaelzer. The U.S. Marshal the government had relied upon to claim that Mitnick fled before his three-year probation was finished on December 7, 1992, testified he never made any such statement. Minutes later, Mitnick's former probation officer, Frank Gulla admitted he wrongly stated that Mitnick was a fugitive. No longer able to prove Mitnick was a fugitive, the government instead claimed the hacker was tardy with his paperwork, failing to submit three monthly supervision reports. But Gulla testified that for 33 months, until September 1992, Mitnick "conscientiously" complied with the reporting requirements of his 36 months supervision. "When a person establishes kind of a track record on supervision, I don't necessarily hold it against them if they are late with a report," Gulla testified, "and in fairness to Mr. Mitnick, people are late with their reports..." The probation officer spoke with Mitnick in October and November without ever telling the hacker he was tardy in his reports, and even gave him permission on October 28, 1992 to travel to Las Vegas. Testimony demonstrated that the probation officer and the hacker spoke on October 5th, 6th, 9th, 21st, 28th, 30th and November 2nd. Phone records subpoenaed by Mitnick proved he called the officer as late as December 4th. Ironically, on December 7, 1992, the last day of his three-year probation, Mitnick met with his psychologist (the court had ordered that he seek counseling for his obsessive hacking), a fact attested to by the therapist in a declaration to the court. At the very time government alleged Mitnick was a dangerous fugitive, the world's "most wanted" computer hacker was following court orders, having his head checked with his shrink. Next Monday, Mitnick's attorney will ask Judge Pfaelzer to make a formal finding that Mitnick was not a fugitive. For Mitnick, last week's testimony made the question moot. The 14-month sentence he will receive for supervised release violations will be based solely on a secret warrant filed a month before his three-year probation expired -- but not served on him until his arrest more than two years later. Mitnick was charged with associating with a former accomplice and accessing the voice mail of Pac Bell security officials. Mitnick's alleged Pac Bell intrusions, a petty offense, fit the profile of an obsessive hacker. Mitnick told me several years ago that he was attempting to discover whether the government was putting him under phone surveillance, and operating a criminal undercover agent who went by the handle Agent Steal. Mitnick has claimed that Agent Steal attempted to entrap him while he was on probation, encouraging him to commit crimes. Despite the admission by the U.S. Marshal and Mitnick's former parole officer, federal prosecutors still contend that Mitnick eventually did become a fugitive. "We believe that Mr. Mitnick did, in fact, become a fugitive it is clear for two and half years," Assistant U.S. attorney Christopher Painter declared during the hearing. Until Mitnick's trial set for January, 1998, the public may not know for certain why the government escalated a routine probation case into a national manhunt. And it will also have to wait until then for answers to two other compelling questions: Did the government have clear evidence of specific crimes? Or did Mitnick's troubles stem from his attempt to protect himself by investigating the investigators? Jonathan Littman is the author of The Fugitive Game, online with Kevin Mitnick and The Watchman. ---------- 23 June 1997, ZDNet: Hacker Mitnick To Be Sentenced Kevin Mitnick, once the FBI's most wanted hacker, is set to be sentenced Monday in Los Angeles to 22 months -- six months less than he's already served since his celebrated February 15, 1995 arrest in North Carolina, according to attorneys close to the case. Monday's sentence is for violating the terms of his probation for swiping Digital Equipment Corp. source code in the 1980's, and for minor cellular-fraud charges arising from North Carolina. This past Monday, United States District Judge Mariana Pfaelzer indicated a sentence of 14 months on a supervised release charge and 8 months on a single North Carolina charge of fraudulently making under $2,000 worth of cellular phone calls. Though technically eligible for bail, the 33-year-old Mitnick may not be surfing the Web any time soon. His sentencing may only be the beginning of what government prosecutors have privately warned could be a revolving door of indictments and trials throughout the nation on a series of other charges related to other hacking cases. Next January, Mitnick will likely face trial on charges that he allegedly copied source code from major cellular-phone manufacturers while a fugitive from justice. Mitnick nearly accepted a plea agreement on that case, but talks stalled last year, and the government indicted the hacker in September. At the time, the prosecutor stated Mitnick could be sentenced to a maximum of 200 years in prison. To date, no hacker has served more than five years. The indictment names Motorola Inc., Nokia Mobile Phones Inc., Fujitsu Ltd. and others as victims of ruses by Mitnick, who allegedly falsely impersonated executives in order gain computer access. Key to the case may be the "value" of the proprietary source code allegedly taken. The government has not alleged that Mitnick damaged the pirated software or profited by his crimes or for that matter, did anything with it. Sources close to the government say it will allege at trial that the downloaded code was worth over $80 million -- an amount that happens to be the figure necessary to receive the maximum federal sentence. ----------