A Los Angeles hacker received a slightly reduced sentence August 10 of 55 months in prison for participating in a multimillion-dollar computer-fraud scheme, after a federal judge took into account the man’s diagnosis with Asperger’s Syndrome.
Viachelav Berkovich, 34, received five months less than the minimum recommended by the probation office and prosecutors, and 23 months less than the minimum under federal sentencing guidelines. Co-defendant Nicholas Lakes, 36, was sentenced last month to 70 months for masterminding the scheme.
“The court tried to make a fair sentence … and gave us some of what we asked for, and did accept that Mr. Berkovich suffered from Asperger’s,” says Kiana Sloan-Hillier, Berkovich’s defense attorney. “But at the same time felt that this was serious and that a substantial prison sentence was called for to deter others.”
The sentence comes barely a week after British hacker Gary McKinnon lost his High Court appeals to avoid extradition to the United States, where he’s accused of cracking nearly 100 Pentagon and NASA computers in 2001 and 2002, and allegedly causing $700,000 in damage. McKinnon’s lawyer, and legions of British supporters, have decried the extradition request as inhumane because of McKinnon’s own recent diagnosis with Asperger’s — a mild form of autism that makes social interactions difficult, and sometimes leads to obsessive, repetitive behavior.
Berkovich and Lakes are Russian immigrants who pleaded guilty in February to executing a man-in-the-middle attack that let them run a profitable trucking company without having to drive trucks.
For over three years the pair hacked into a Department of Transportation website called Safersys.org, which maintains a list of licensed interstate-trucking companies and brokers, according to an affidavit (.pdf) filed by a DOT investigator. There, they would temporarily change the contact information for a legitimate trucking company to an address and phone number under their control.
The men then took to the web-based “load boards” where brokers advertise cargo in need of transportation. They’d negotiate a deal, for example, to transport cargo from American Canyon, California, to Jessup, Maryland, for $3,500.
But instead of transporting the load, Lakes and Berkovich would outsource the job to another trucking company, the feds say, posing as the legitimate company whose identity they’d hijacked. Once the cargo was delivered, the men invoiced their customer and pocketed the funds. But when the company that actually drove the truck tried to get paid, they’d eventually discover that the firm who’d supposedly hired them didn’t know anything about it.
Based on the high losses and the number of victims in the case, federal sentencing guidelines recommended a range of 78 to 97 months for Berkovich. But in a pre-sentence report, the probation office suggested a reduction to 60 months, owing to Berkovich’s lessor role in the conspiracy: He was recruited by Lakes, who paid him a “very small” percentage of the proceeds from the fraud, says Sloan-Hillier. (Lakes’ attorney declined to comment.)
Berkovich was particularly susceptible to recruitment because he suffers from Asperger’s, Sloan-Hillier says. “We’re not excusing his behavior,” says Sloan-Hillier. “He’s taken responsibility, and he knows that he shouldn’t have gotten involved with this…. But some people are more vulnerable than others.”
Born in Novosibirsk, Russia in southwestern Siberia, Berkovich grew up a loner, and suffered beatings by street thugs, the lawyer says. In 1999, he immigrated illegally into the U.S. and settled in the Los Angeles area, but found himself unable to maintain serious employment. He was flirting with homelessness when Lakes befriended him and eventually pulled him into the computer fraud, according to court filings by Sloan-Hillier.
Sloan-Hillier asked a psychiatrist to examine Berkovich after noticing mannerisms that she recognized as possible signs of a disorder. She filed the doctor’s findings under seal, and asked U.S. District Judge John Walter for a sentence of 24 months.
Walter gave Berkovich a much longer (though still reduced) sentence, and ordered the Bureau of Prisons to give him an evaluation.
The judge also ordered Berkovich to pay $2,773,074 in restitution to approximately 300 victims. “He actually offered to drive their trucks for free and paint their houses,” says Sloan-Hillier. “Obviously, that’s not how the system works.”
Federal prosecutors in Los Angeles say they’ve recovered $1.4 million from Lakes.
Monday’s sentence suggests that federal courts are willing to consider Asperger’s as a factor when handing down a hacking sentence, but still begin with the sentencing guidelines, which use financial loss and the number of victims as the primary factors in setting a sentence.
British hacker Gary McKinnon faces anywhere from six months to six-and-a-half years in prison under the guidelines, depending mostly on how much damage he caused, if any. (His supporters, and the British press, tend to inflate the possible sentence to 60 or 70 years.)
McKinnon rejected a written plea offer in April 2003 that would have given him six months to a year in a low-security U.S. prison, followed by a transfer back to the United Kingdom, where he would have been eligible for parole six months later.