BOSTON-The most prolific cards hacker in history has asked a federal appeals court to invalidate a plea agreement that sent him to prison for 20 years and vacate his sentence, even though he agreed not to appeal as part of the deal.
But the federal court that signed off on the 2010 conviction of Albert Gonzalez, a 38-year-old college dropout responsible for the massive data breaches at TJX Cos., Heartland Payment Systems, BJ Wholesale Club, Hannaford Bros., and several others, has refused to certify the appealability of the case because of the provisions of the plea agreement, among other issues.
The master hacker, known by his Internet handles "soupnazi" and "segvec," also was responsible for major data breaches at Barnes & Noble, 7-Eleven, Dave & Buster's, OfficeMax, Boston Market, Forever 21 and DSW shoes.
Gonzalez, who worked as a government informant after a 2003 arrest for hacking, claims his infiltration into a host of commercial enterprises was done at the behest of and with the knowledge of his government handlers as part of an undercover operation called "Shadow Ops."
But the government denied this. In addition, the district court judge said even if his hacking into the numerous companies had been sanctioned, government agents do not "have the power to unilaterally authorize 'extraordinary' criminal activities which involve 'severe financial loss to a victim'" without obtaining written approval from the U.S. Attorney.
The government says Gonzalez caused hundreds of millions of dollars in financial losses from the theft of more than 40 million credit and debit card numbers from the victim companies.
The judge also rejected Gonzalez's claim that he told his lawyers of his intent to appeal after he was sentenced but they decided not to do so, without his consent. Both his lawyers say he did not ask them to file a notice of appeal, which he was free to do, even if he signed the plea agreement stating he would not appeal.
"When a defendant receives the sentence recommended by his plea bargain, his subsequent contested allegation that he asked his attorney to appeal is highly implausible," wrote Judge Patti Saris, who signed off on the original plea deal.
The judge also rejected Gonzalez's assertion that evidence that led to him that was obtained by torture of a massive dealer of stolen credit card data in Turkey should have been suppressed. The argument was never raised during the agreement to plead guilty, ruled the judge.
As a result, the U.S. Court of Appeals for the First Circuit, where Gonzalez has filed an intent to appeal, is expected to deny his request to review the case.
