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Government files its opening brief in its appeal to overturn Conor Fitzpatrick’s sentence

Posted on July 30, 2024 by Dissent

On July 29, the Department of Justice filed its opening brief in its appeal of Conor Fitzpatrick’s (“Pompompurin’s”)  sentence.

The issue at the appellate level is “whether the district court abused its discretion in sentencing Fitzpatrick to a 17-day time-served sentence for possessing child pornography and creating and operating the largest English-language data breach forum of its kind, particularly considering Fitzpatrick’s related pretrial release violations.”  In other words, the prosecution argues that Fitzpatrick got off way too easy in light of the seriousness of his crimes and the fact that his violation of his pretrial release conditions predicts he would be a risk of further criminal conduct.

The prosecution argues that while the district court judge took Fitzpatrick’s mental health diagnosis(es) and condition into consideration, the judge gave them too much weight to the exclusion of the other sentencing factors and there was nothing in the sealed record of reports submitted to the court that suggested that Fitzpatrick could not be maintained and receive treatment in a prison.

While most of the references to mental health issues in the brief have been redacted for the public copy, it appears that the district court judge felt that Fitzpatrick had a long history of serious issues but had never been diagnosed or treated. There are numerous references to a redacted condition that, from a redaction error in the public copy, appears to be autism.

According to the prosecution, the psychological reports do not indicate that Fitzpatrick didn’t know what he was doing. On the contrary, his record of activities from RaidForum days through BreachForums shows that he was capable of recognizing what he was doing and knew that it was illegal.

The Table of Contents for the brief provides a preview of their arguments as to why Fitpatrick’s sentence was unreasonable:

A. The district court erred in focusing excessively on Fitzpatrick’s mental health condition to the exclusion of other sentencing factors.

1. The district court’s sentence fails to account for the seriousness of Fitzpatrick’s offenses or provide just punishment.

2. The district court’s sentence fails to afford any specific deterrence or protect the public from further crimes.

3. The district court’s sentence undermines respect for the law and fails to afford any general deterrence.

4. The district court’s sentence creates significant sentencing disparities.

B. The district court’s unsupported conclusions about Fitzpatrick’s mental health condition failed to justify its significant downward variance.

The following are two excerpts from the opening brief. The first contains a reference to United States v. Zuk, in which the prosecution succeeded in getting the appellate court to vacate a district court sentence because the judge focused too much on that defendant’s autism diagnosis to the exclusion of the other relevant sentencing factors. Citing that case, the prosecution in Fitzpatrick’s case argues:

The Court can vacate the sentence as substantively unreasonable based on Zuk alone. But the district court’s error here goes one step beyond Zuk. Not only did the district court give excessive weight to Fitzpatrick’s mental health conditions, but it relied on this factor to reach several speculative and unsupported conclusions. Specifically, the district court relied on Fitzpatrick’s mental health condition to conclude that placing him in “general population” would be a “disaster” and that he would be “ravaged in a prison setting where he would never get the mental health treatment that he needs[.]” (JA174–JA175) Both conclusions are unsupported by the record and reality.

Later, they argue:

Notwithstanding the communication and social challenges posed by Fitzpatrick’s autism, he managed to broker hundreds of thousands of dollars’ worth of deals through his middleman service. There is also no question that Fitzpatrick knew what he was doing was wrong. He even helped one BreachForums member who feared law enforcement scrutiny delete his or her IP address from the site. (JA129) He promised another user that he would falsify registration information should law enforcement ever request it, jokingly stating that he “doubt[ed] law enforcement would even bother making legal requests to a hacking forum lmao[.]” (JA129) And in brokering a deal between the OCE and “expo2020” for the PII of 15 million U.S. persons, Fitzpatrick only released the payment after the OCE confirmed he would use the PII to commit financial crimes. (JA127)

Fundamentally, Fitzpatrick’s mental health conditions have little bearing on his criminal conduct, see Zuk, 874 F.3d at 410, and are simply not sufficiently compelling to warrant the drastic variance imposed here. Moreland, 437 F.3d at 434.

Because the psychological reports on Fitzpatrick are sealed and portions of the record are redacted, it is hard to know what the district court judge had read that resulted in her making such an extreme deviation from sentencing guidelines. What specifically was documented in Fitzpatrick’s history that would justify such an extreme deviation to no prison time at all? Has she now opened the door for all defendants diagnosed with autism to argue that prison would be a “disaster” for them, too, and therefore there should be no prison time?

What message did Fitzpatrick’s sentence send to others considering engaging in crime? What message did it send to victims of child pornography that he got no prison time at all? What message did it send to the victims of his fraud and other crimes?


Read the Opening Brief.

Note: For those who want to review some of the district court filings in the lower court case, the prosecution compiled them in a Joint Appendix filing, also submitted to the appeals court on July 29.

Category: Commentaries and AnalysesU.S.

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