1/30/2003 -- Robert Keppel's defense attorney, Michelle Burrows of Portland, Ore.-based Kolher and Burrows P.C., today provided CertCities.com with a copy of a sentencing memo she filed with the court asking that her client not be sentenced to jail or be forced to pay millions in restitution to Microsoft.

Keppel pleaded guilty in August to a felony charge of theft of trade secrets in violation of Title 18, United States Code, Section 1832(a)(2), part of the Economic Espionage Act of 1996. The charges stemmed from the sale of Microsoft certification exam questions through Keppel's Web sites, Cheet-Sheets.com and CheetSheets.com. It is the first known successful criminal prosecution of a "braindump" site owner in the IT certification industry.

On Tuesday, CertCities.com reported that the prosecuting attorney is asking the judge to sentence Keppel to 18 months in prison. Keppel is scheduled to be sentenced tomorrow at 9 a.m.

According to Burrows, Microsoft is also asking for $1.9 million in restitution. Burrows is asking the court to keep the restitution at $200,000 -- the amount in assets that Keppel estimates he has already forfeited -- and also allow Keppel to receive alternative sentencing, such as work release or probation.

The base factor for sentencing in these cases is the estimated loss to the victim, which is the starting point for federal sentencing guideline calculations. In her recommendation, Burrows asks the judge to "depart downward" from the calculated sentence, arguing, among other things, that even the $500,000 to $800,000 loss value settled on in the plea agreement is too high.

She also argues that there is no support for the government's allegation that, "...when companies hire people who have obtained MCSE and MCSD certificates by cheating, but who, in fact, cannot install and maintain the systems correctly because they have neither the experience nor expertise in the Microsoft products commensurate with the certificates, those companies tend to blame the Microsoft product and become reluctant to buy other products."

The defense's 38-page motion acknowledges that Keppel knowingly used some actual exam question in the materials he sold, but "the majority of even the 'corrupted' tests were still largely Mr. Keppel's own work product," Burrows alleges, adding, " The test comparison completed by Microsoft demonstrates that most of Mr. Keppel's practice exams had very little similar or exact material contained within them. In fact, some tests were not even similar in any portion."

She also argues that the calculation of loss is inaccurate because: " Most of the tests which Mr. Keppel is accused of stealing are now obsolete -- within one year of the accusation. Microsoft was not expecting to make any more profit from these obsolete tests anyway, and it is quite speculative for Microsoft to now argue 'losses' from retired, obsolete and useless tests, " she wrote.

Elsewhere she stated "...Defendant has not received any specific data or information which support any losses for Microsoft. They did continue to use the tests."

Burrows also argues that Microsoft benefits from the "cheat" industry, because "good or bad, Mr. Keppel -- together with a very aggressive and competitive practice exam market -- provided a greater sense of confidence and likelihood that Microsoft's tests were passable. In an ironic twist, the 'practice exam industry' actually enhances Microsoft's profits by increasing the size of its audience of potential test takers..."

Burrows also stated that the FBI agent who calculated to the total revenue Keppel earned from his criminal actions did not take into account earnings from products that were original to Keppel, and also did not consider charge-backs or refunds, both of which resulted in an overstating Keppel's earnings. The defense further stated that it did not trust calculations presented to the court by the FBI agent because he is now a Microsoft employee.

By the defense's calculations, Keppel's profits from stolen exam questions, exact and similar, totaled apx. $150,000. "Defendants argue that the value of the seized and forfeited assets is sufficient to more that adequately compensate Microsoft for the costs of any infringement by Mr. Keppel..." Burrows wrote.

The defense memo names Shabazz Mian, based in Pakistan, as the person who provided Keppel and other Web sites with actual exam questions. In the memo, Keppel's attorney made note of the defendant's cooperation with the FBI in its investigation of Mian. (Burrows states that the FBI has since dropped the investigation of Mian, but that Keppel is continuing to cooperate with investigators.)

In the memo, Burrows accuses Microsoft of "shopping" prosecutions of similar Web sites to other prosecutors, but she claims that most decline because they say these types of cases are civil matters.

According to Burrows, she received notification yesterday that Microsoft is seeking 1.9 million in restitution from Keppel.

One spokesperson for Microsoft told CertCities.com that the company will not comment on any aspects of the case until after the sentencing hearing, but did say that, in general, when it comes to braindumps, the point has nothing to do with money. " Beyond Microsoft, even Cisco and CompTIA...the whole point is that this industry we work in must have validity to exist," the source said. "The end result is that you have people, and what's at stakes is their careers, their lives, their ability to feed their kids. That's the real impact of an issue like this."

At Keppel's sentencing hearing tomorrow, the judge will consider both this sentence recommendation, the one filed by the prosecutors and one prepared by the probation office. CertCities.com will report the results of the sentencing hearing as soon as they are announced. We are also attempting to reach Shabazz Mian for comment, but have not been able to locate him as of press time. - B.N.