Donald C. Randolph
                                                                                      1717 Fourth Street, Third Floor
                                                                                      Santa Monica, CA 90401
                                                                                      (310)395-7900
                                                                                      Attorneys for Applicant
                                                                                      Kevin David Mitnick

CASES

Barker v. Wingo, 407 U.S. 514 (1972) 26, 27

Bell v. Wolfish, 441 U.S. 520 (1979) 23

Gerstein v. Pugh, 420 U.S. 103 (1975) 9, 12

Powell v. Alabama, 287 U.S. 45 (1982) 24

Schall v. Martin, 467 U.S. 253 (1984) 17

Stack v. Boyle, 342 U.S. 1 (1951) 7, 8, 19-21

Truong Dinh Hung v. United States, 439 U.S. 1326 (1978) 21

United States v. Accetturo, 783 F.2d 382 (3rd Cir. 1986) 25

United States v. Alatishe, 768 F.2d 364 (D.C. Cir. 1985) 10

United States v. Byrd, 969 F.2d 106 (5th Cir. 1992) 16

United States v. Davis, 845 F.2d 412 (2d Cir. 1988) 10

United States v. Fernandez-Alfonso, 813 F.2d 1571 (9th Cir. 1987) 8, 27, 28

United States v. Gelfuso, 838 F.2d 358 (9th Cir. 1988) 23

United States v. Himler, 797 F.2d 156 (3rd Cir. 1986) 16

United States v. Montalvo-Murillo, 495 U.S. 711 (1990) 7, 11, 27

United States v. Motamedi, 767 F.2d 1403 (9th Cir. 1985) 8

United States v. Ploof, 851 F.2d 7 (1st Cir. 1988) 16

United States v. Reynolds, 956 F.2d 192 (9th Cir. 1992) 6, 13, 16-18

United States v. Salerno, 481 U.S. 739 (1987) 8, 9, 11-13, 15, 17, 18, 22, 28

United States v. Theron, 782 F.2d 1510 (10th Cir. 1986) 23

STATUTES

18 U.S.C. § 1341 18

18 U.S.C. § 1344 18

18 U.S.C. § 3141 8

18 U.S.C. § 3142 8, 9, 11-17, 19-21, 28

18 U.S.C. § 3143 17, 18

21 U.S.C. § 801 14

21 U.S.C. § 951 14

46 U.S.C. App. § 1901 14

RULES

Fed.R.Cr.Proc. 16 24

LEGISLATIVE MATERIALS

S. Rep. No. 98-225, 98th Cong., 1st Sess., reprinted in 1984 U.S. Cong. & Ad. News 3182 15

                            KEVIN DAVID MITNICK,

                                              PETITIONER,

                                        -VS.-

                           UNITED STATES OF AMERICA,

                                              RESPONDENT.

Applicant Kevin David Mitnick, by and through his attorney of record, Donald C. Randolph, hereby applies to this Court for Bail in the matter of United States v. Kevin David Mitnick, CR 96-881-MRP, currently pending before the United States District Court for the Central District of California. Mr. Mitnick is currently being detained absent a bail hearing as required by 18 U.S.C. § 3142(f) and in violation of Due Process pursuant to the Fifth Amendment of the United States Constitution. Furthermore, Mr. Mitnick has been ordered detained absent any findings of fact or conclusions of law which could justify his detention as required by 18 U.S.C. § 3142(e) and the Fifth Amendment of the United States Constitution.

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This application is based upon the attached memorandum of points and authorities and is made pursuant to Rule 22 of the Rules of the Supreme Court.

DATED: August 18, 1998                  Respectfully submitted,

                                        RANDOLPH & LEVANAS

                                    By: _______________________________

                                        Donald C. Randolph

                                        Attorneys for Applicant

                                        KEVIN DAVID MITNICK

On September 26, 1996, a twenty-five count indictment, United States v. Mitnick, CR-96-881-MRP, was filed in the Central District of California. The indictment, which forms the basis of the instant case, alleges various counts of computer fraud, wire fraud, possession of unauthorized access devices, causing damage to computers, and interception of wire or electronic communications.

On October 7, 1996, the parties stipulated to the applicant's temporary detention until such time as defense counsel was able to familiarize himself with the case and challenge the issue of detention at a later date. No formal detention order was issued by the court.

On June 27, 1997, the district court sentenced the applicant in two matters pending at the time of his indictment in this case. The court entered a sentence of eight months for a charge of unauthorized possession of access devices in United States v. Mitnick, CR 95-603-MRP. The court further sentenced the applicant to 14 months for violating the terms of his supervised release in United States v. Mitnick, CR 88-1031-MRP. The applicant, who remained in custody pending sentencing in these matters, had already served the aggregate sentence of 22 months as of September 19, 1996, over nine months before the sentence was actually rendered.

On March 25, 1998, the defendant-applicant filed an ex parte application for release forthwith pending trial. A detention hearing was scheduled for April 6, 1998, at 1:30 p.m.

On March 30, 1998, a hearing was held on a number of pending pretrial motions. At this hearing, without prior notice to the parties, and before the government had made any opposition to the application for release on bail, the district judge advanced the detention hearing scheduled for the following week and summarily denied the applicant's request for bail. The district court failed to express any basis for the continued detention of the applicant pending trial in this matter. Nor did the court make any findings of fact which could be used to support its order.

The district court's consideration of the applicant's application for bail is reflected, in its entirety, in the following three brief passages from the transcript of the March 30, 1998 hearing:

[Defense counsel making reference to the bail motion while addressing other motions currently pending before the Court.]

Mr. Randolph: Inasmuch as I have filed and I believe the Clerk has set a motion to have bail set on behalf of my client and that is set--

The Court: I am not going to give your client bail.

Mr. Randolph: I think the matter is set for next Monday, your Honor, at 1:30.

The Court: Well, I may take it under submission without oral argument because I am not going to give him bail.

[Exhibit A, Reporter's Transcript ("RT") dated 3/30/98: 4-5].

[Discussing proposals for allowing the applicant to review evidence consisting of electronically stored computer files while incarcerated.]

Mr. Randolph: I think the most cost efficient would be for the Court to consider my client's bail motion and let him come to my office and review [the computer evidence].

The Court: I am not going to give him bail.

[RT 3/30/98: 14].

[Government counsel, Assistant United States Attorney Christopher Painter addressing the Court.]

Mr. Painter: Your Honor, first, I understood the Court to -- one thing that the government would ordinarily have to do would be to respond to the bail motion that was made. Does the Court--

The Court: You have no obligation to respond to the bail motion. I am not going to give Mr. Mitnick bail, and that is an order, and you do a formal order, and I will sign it.

[RT 3/30/98: 42].

On April 9, 1998, the applicant filed a timely notice of appeal from the district court's denial of his application for release on bail.

On May 7, 1998, the applicant filed an Memorandum of Law and Facts in Support of Appeal (Appellant's Brief, "AB") from the district court's detention order. Therein, the applicant asserted that he had been illegally detained absent a hearing pursuant to 18 U.S.C. § 3142(f). The applicant further asserted that his detention was illegal due to the fact that the district court had made no findings of fact or conclusions of law which could justify his detention. In addition, the applicant submitted that his excessively long pretrial detention had become punitive in violation of Due Process.

On May 14, 1998, the government filed an opposition to the applicant's motion for bail pending trial alleging that detention was proper because the applicant was a flight risk and because he posed an economic danger to the community. In its opposition, the government acknowledged that the district court failed to conduct a detention hearing and that it failed to issue findings to support detention but, nonetheless, maintained that the district court did not err based upon findings it purportedly made during the course of an unrelated criminal prosecution.

On May 19, 1998, the Ninth Circuit issued an Order affirming the district court's detention order. The Order stated that the government had shown by a preponderance of the evidence that the applicant constitutes a flight risk and that, therefore, there is no condition or combination of conditions which will reasonably assure the applicant's appearance. Furthermore, the Court stated that the government had shown by clear and convincing evidence that the applicant poses a danger to the community, citing United States v. Reynolds, 956 F.2d 192 (9th Cir. 1992)United States v. Reynolds, 956 F.2d 192 (9th Cir. 1992). The Court made no findings of fact to support its legal conclusions. Exhibit B.

On June 2, 1998, the applicant filed a Petition for Rehearing; Suggestion for Rehearing En Banc with the United States Court of Appeals for the Ninth Circuit on the grounds that its Order affirming the district court's denial of bail was invalid. For one, the Order made no findings of fact in support of its decision. Secondly, the Court of Appeals' decision evidenced on its face, a misapplication of the controlling legal standards.

On July 1, 1998, the three-judge panel of judges for the Court of Appeals denied the applicant's petition for rehearing and, on behalf of the Ninth Circuit, rejected his suggestion for rehearing en banc.

To date, the applicant continues to be incarcerated without having been afforded a detention hearing pursuant to 18 U.S.C. § 3142(f) and absent any findings of fact or conclusions of law which could support his detention.

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The Applicant, Mr. Kevin David Mitnick, has been denied his fundamental rights to liberty without due process of law in clear violation of the Fifth Amendment of the United States Constitution and 18 U.S.C. § 3142. It is the duty of this Court to see that this injustice is remedied.

Perhaps there is no more fundamental tenet in the American criminal justice system than the principle that an individual is presumed innocent until proven guilty. It follows from this cornerstone of jurisprudence, that presumably innocent criminal defendants have a right to bail pending trial. Stack v. Boyle, 342 U.S. 1 (1951)Stack v. Boyle, 342 U.S. 1, 3 (1951) ("[u]nless th[e] right to bail before trial is preserved, the presumption of innocence, secured only after centuries of struggle, would lose its meaning.") For nearly two full centuries, federal law unequivocally provided that a person arrested for a non-capital offense shall be admitted to bail. Stack v. Boyle, 342 U.S. at 3. Faced with the increasingly compelling regulatory interest of preventing crime by arrestees, Congress passed the Bail Reform Act of 1984 ("Act") which adopted a limited and specific departure from this historical backdrop. 18 U.S.C. § 314118 U.S.C. § 3141, et seq.

The Act allows for the pretrial detention of arrestees charged with certain extremely serious crimes whom, following an adversary hearing, the government has shown pose a threat to society which no condition of release can dispel. See 18 U.S.C. § 314218 U.S.C. §§ 3142(e)-(f);United States v. Salerno, 481 U.S. 739 (1987) United States v. Salerno, 481 U.S. 739, 755 (1987). The government's purely regulatory interest in detaining this category of defendants was in no way intended to affect the presumption of innocence. 18 U.S.C. § 3142(j). Nonetheless, pretrial detention presents a significant danger of becoming punitive, in effect, if the procedures by which it is authorized are not adhered to. United States v. Motamedi, 767 F.2d 1403 (9th Cir. 1985)United States v. Motamedi, 767 F.2d 1403, 1408 (9th Cir. 1985).

Because constitutionally protected liberty interests are at stake in every bail proceeding, Due Process requires that the carefully delineated provisions of the Act be strictly respected. United States v. Fernandez-Alfonso, 813 F.2d 1571 (9th Cir. 1987)United States v. Fernandez-Alfonso, 813 F.2d 1571, 1572 (9th Cir. 1987). Indeed, this Court recognized the facial validity of the Bail Reform Act under the Constitution only after taking into consideration the extensive procedural safeguards expressly mandated by Congress in its application:

Detainees have a right to counsel at the detention hearing, 18 U.S.C. § 3142(f). They may testify in their own behalf, present information by proffer or otherwise, and cross-examine witnesses who appear at the hearing. Ibid. The judicial officer charged with the responsibility of determining the appropriateness of detention is guided by statutorily enumerated factors...§ 3142(g). The government must prove its case by clear and convincing evidence. § 3142(f). Finally, the judicial officer must include written findings of fact and a written statement of reasons for a decision to detain. § 3142(i)...We think these extensive safeguards suffice to repel a facial challenge. Salerno, 481 U.S. 729, 751-52 (emphasis added).

In reaching this conclusion, the Court noted that the scope of the pretrial detention provision, "narrowly focuses on a particulary acute problem in which the Government interests are overwhelming," operating only on individuals who have been arrested for a "specific category of extremely serious offenses. 18 U.S.C. § 3142(f)." Salerno at 750. Furthermore, the Court noted that the procedures by which a judicial officer evaluates the appropriateness of bail or detention of an individual are specifically designed to further the accuracy of that determination. Id., at 751. Virtually any failure to observe these precise procedural guidelines will result in unconstitutional application of the Act.

In the instant case, the applicant has been afforded essentially none of the substantive or procedural protections required of pretrial detention proceedings. While before the district court, the applicant was denied his most crucial rights under the Bail Reform Act, each having significant constitutional implications. To date, the applicant has not been afforded his rights to testify, to present witnesses on his own behalf, or to cross-examine adverse witnesses. These facts alone require that any order for his detention be vacated. See United States v. Davis, 845 F.2d 412 (2d Cir. 1988)United States v. Davis, 845 F.2d 412 (2d Cir. 1988) (revocation of bail impermissible unless defendant given opportunity to testify, to call witnesses, to cross-examine witnesses, and court issues written findings of fact).

Because the defects of the proceedings before the district court were so apparent, the government was forced to concede on appeal that no hearing as contemplated by the Bail Reform Act had ever occurred in this case. In so doing, it rejected the notion that this applicant was entitled to such a hearing arguing, without citation, that given the "unusual" facts of this case, "there was no need for either an additional hearing or additional findings." The government suggested that the district court, during the course of "extensive hearings" spanning an almost two-year period, had "made clear her belief that there were no conditions that could prevent defendant, once released from custody, from continuing to commit similar crimes." The government is wrong. See United States v. Alatishe, 768 F.2d 364 (D.C. Cir. 1985)United States v. Alatishe, 768 F.2d 364, 370 (D.C. Cir. 1985).

The court in Alatishe held a judicial officer cannot not rely upon facts previously found to support a temporary detention order under § 3142(d), in subsequently ordering detention pursuant to § 3142(e). Id. The court reasoned that the nature of the inquiry undertaken in considering temporary detention pursuant to § 3142(d), significantly differed from the inquiry attending detention under subsection (e) due to variances in the potential consequences under each subsection. Id. In light of the foregoing, the district court's unstated "findings" relied upon by the government in this case clearly cannot be used to support detention.

The government's attempt to circumvent the requirements of a bail hearing are unacceptable. First, the government seeks to supplant the requirements of a single, focused hearing with the aggregate conglomeration of various proceedings spanning a two-year period involving charges which the government itself has argued are "factually distinct" and "entirely unrelated" to the pending indictment. Exhibit C. Secondly, because the district court ordered detention without stating a single finding of fact or conclusion of law in its support, there is no evidence that it's decision was actually grounded upon any previous finding involving the applicant. Finally, even had the district court relied upon findings of fact from previous hearings involving the applicant, no such findings were made in relation to the applicant's suitability for bail and, consequently, are inapplicable for this purpose. Alatishe, 768 F.2d 364, 370. Given the foregoing, any conclusion that the actual proceedings in this matter satisfied the requirements of 18 U.S.C. § 3142(f) would be clearly erroneous.

This Court has recognized that, "some combination of procedural irregularities could render a detention hearing so flawed that it would not constitute a 'hearing pursuant to the provisions of subsection (f)' for purposes of § 3142(e)." Montalvo-Murillo, 495 U.S. 711, 717. The instant matter is unquestionably such a case. The failure to conduct a proper hearing is not only a severe procedural misstep; it draws into question the entire legitimacy of the court's substantive findings since the very function of the hearing is to assist the judicial officer in making an accurate determination of the applicant's suitability for bail. Salerno, 481 U.S. at 751.

The fundamental inadequacy of the district court's bail proceedings could not be salvaged by the review undertaken by the Court of Appeals in this matter. This review is not the type of "full blown adversarial hearing" contemplated by Congress under § 3142(f). Salerno, 481 U.S. at 750. Among other deficiencies which remain uncured, the applicant still has had no opportunity to testify, to present witnesses, to cross examine adverse witnesses, or even so much as respond to the government's proffer submitted before the Court of Appeals. Under these circumstances no court has discretion to affirm this applicant's detention.

In its order, the Court of Appeals concluded that detention of the applicant was proper because:

The government has shown, by a preponderance of evidence, that the appellant constitutes a flight risk and that, therefore, there is no condition or combination of conditions which will reasonably assure appellant's appearance. See 18 U.S.C. § 3142(e). The government also has shown, by clear and convincing evidence, that appellant poses a danger to the community. See United States v. Reynolds, 956 F.2d 192 (9th Cir. 1992).

The court stated no findings of fact to support its conclusions as required by 18 U.S.C. § 3142(i). Wholly apart from this distinct error, neither of the court's stated grounds offers legal justification for the applicant's continued incarceration.

(a) a crime of violence;

"The Bail Reform Act...narrowly focuses on a particularly acute problem in which the Government interests are overwhelming. The Act operates only on individuals who have been arrested for a specific category of extremely serious offenses. 18 U.S.C. § 3142(f). Congress specifically found that these individuals are far more likely to be responsible for dangerous acts in the community after arrest. See S. Rep. No. 98-225, at 6-7 [reprinted in 1984 U.S.C.C.A.N. at 3188-89]." Salerno at 750, (emphasis added).

The applicant has not been charged with nor convicted of any crime listed under § 3142(f)(1), therefore, the government is without authority to seek pretrial detention except upon allegations of risk of flight. The statute is unambiguous in this respect. Every Circuit Court which has addressed the issue of pretrial detention based on alleged dangerousness grounds, with the exception of the Ninth Circuit in this case, has correctly concluded that pretrial detention can only be ordered under those circumstances expressly listed under § 3142(f). See e.g., United States v. Ploof, 851 F.2d 7 (1st Cir. 1988)United States v. Ploof, 851 F.2d 7, 11 (1st Cir. 1988) ("Where a detention is based on dangerousness grounds, it can be ordered only in cases involving one of the circumstances set forth in § 3142(f)(1)"); United States v. Himler, 797 F.2d 156 (3rd Cir. 1986)United States v. Himler, 797 F.2d 156, 160 (3rd Cir. 1986) (statute does not authorize pretrial detention upon proof of danger to the community other than from those offenses which will support a motion for detention (§ 3142(f));United States v. Byrd, 969 F.2d 106 (5th Cir. 1992) United States v. Byrd, 969 F.2d 106, 109-110 (5th Cir. 1992) (Bail Reform Act does not authorize pre-trial detention solely on ground of alleged dangerousness; government must establish that defendant's conduct involves one of circumstances listed in § 3142(f)). The government's own Request for a Detention Hearing acknowledges that it was only entitled to such a hearing based upon on an allegation that the applicant posed a risk of flight. See Exhibit D.

In the face of the foregoing authority, the Ninth Circuit affirmed the applicant's detention concluding inter alia that "the government has...shown, by clear and convincing evidence, that [the applicant] poses a danger to the community," (citing United States v. Reynolds, 956 F.2d 192). The court did not find, as it must, that "no condition or combination of conditions will reasonably assure...the safety of any other person and the community." Most troubling, however, is the court's willingness to broaden, without apparent limitation, the types of cases in which pretrial detention may be sought so long as the government alleges some economic danger to the community.

The Ninth Circuit erroneously relied upon U.S. v. Reynolds, 956 F.2d 192, for the proposition that pretrial detention may be warranted on allegations that an individual poses an economic danger to the community. In actuality, Reynolds narrowly holds that in the context of a motion for bail pending appeal, "danger may, at least in some cases, encompass pecuniary or economic harm." Reynolds, 956 F.2d 192. Significantly, the Reynolds decision was rendered pursuant to 18 U.S.C. § 314318 U.S.C. § 3143(b), relating to bail pending appeal, rather than pretrial detention pursuant section 3142. For constitutional purposes, the two statutes are not analogous.

Section 3143(b) requires that a person who has been found guilty of an offense and sentenced to a term of imprisonment shall be detained unless the judicial officer finds, that the person is not likely to flee or pose a danger to the safety of any other person or the community if released. 18 U.S.C. § 3143(b). The significance of the distinctions between sections 3142 and 3143 is not limited to which party bears the burden of proof in seeking bail, as purported by the government. Rather, the decisive difference between the statutes is that constitutional concerns associated with the presumption of innocence are inapplicable when denying bail under section 3143 since the convicted person has already been accorded due process of law by virtue of the procedural protections offered at trial.

On the other hand, the procedural safeguards designed to ensure that pretrial detention satisfies due process require that its application be strictly limited to the government's narrowly-defined regulatory interests as described in 3142(f). Salerno, 481 U.S. 739, 747. Both the Act and the Constitution would be perverted by allowing the government to incarcerate any individual merely alleged to be an "economic danger to the community" absent a determination of guilt. Presumably every crime results in some degree of economic loss; thus, reliance on this ground as a basis for pretrial detention would allow, indeed has allowed, for vastly overbroad and arbitrary application. The government must not be allowed to circumvent the presumption of innocence through the creation of such a gaping loophole in its effect. If the application of the Bail Reform Act is to be extended within Constitutional parameters, it is incumbent upon the legislature, rather than the judiciary, to do so.

Apart from the constitutional and statutory issues addressed above, the government cannot seek pretrial detention of this applicant as an economic danger to the community because, in fact, he does not pose a danger such that no conditions of release can reasonably assure the safety of the community. The government will likely seek to influence the Court's decision in this matter by propounding that the applicant has "stolen" proprietary computer software resulting in exorbitant losses in excess of $80 million. In fact, the applicant is essentially charged with acting as an electronic "Peeping Tom." The government does not allege that he ever sought financial or pecuniary gain from this alleged conduct. Moreover, the applicant is not alleged to have permanently deprived anyone from their proprietary information, but merely to have breached its confidentiality. The government's inventive calculation of the "loss" demonstrates creative accounting but has little basis in the facts of this case.

It does not logically follow that simply because an individual may be considered a "flight risk" that, consequently, there is no condition or combination of conditions which will reasonably assure his appearance at trial. According to reason, courts presume that virtually every defendant poses a risk of flight or there would be no need to post bond in order to secure release. Courts require defendants to post bond in recognition of the fact that, although the individual may pose a risk of flight, the amount of the bond will reasonably assure his appearance at trial. Stack v. Boyle, 342 U.S. at 5. The Ninth Circuit, however, erroneously determined that the applicant constituted a risk of flight and that, therefore, there is no condition or combination of conditions which will reasonably assure his appearance. This conclusion is not supported by reason or the facts and record of this case.

The defendant has offered a prodigious body of evidence offering assurance of his appearance in this matter. Mr. Mitnick has demonstrated his strong family and community ties to the Los Angeles area where he was born and raised and where his father, uncle, aunt, cousins and friends all reside. The applicant's mother and grandmother have both offered to encumber their sole residences located in Las Vegas, Nevada in order to secure bond in this matter. See Exhibit E, Declarations of Rochelle Jaffe and Reba Vartanian. No fewer than six individuals have stated their commitment by way of affidavit, to act as a custodian for Mr. Mitnick, assuming supervision over him and pledging to report any violation of a condition of release, should he be released to their custody. Exhibit F. The applicant has even obtained approval for residence at Gateways Community Corrections Center, a halfway house located in Los Angeles, by its director, Mr. Bob Ochs, as a possible condition of release. Exhibit G. All of the foregoing factors mitigate heavily in favor of his release on bail. SeeTruong Dinh Hung v. United States, 439 U.S. 1326 (1978) Truong Dinh Hung v. United States, 439 U.S. 1326, 1329 (1978); 18 U.S.C. § 3142(c).

Admittedly, the foregoing conditions do not amount to an absolute guarantee that the applicant must appear as required. See Stack v. Boyle, 342 U.S. 1, 8 ("[a]dmission to bail always involves a risk that the accused will take flight. That is a calculated risk which the law takes as the price of our system of justice."). However, so long as there exist conditions which will reasonably assure the applicant's appearance, bail must be granted. 18 U.S.C. § 3142(e). In the instant matter, the government has demonstrated that its true motivation lies not in reasonably assuring the defendant's appearance at trial, but rather, in assuring that he remains in prison.

The government's argument in support of detention due to risk of flight is, in its essence, predicated entirely upon the applicant's failure to surrender on a warrant issued in 1992. The applicant submits that this transgression, by itself, does not irrebuttably demonstrate that no conditions of release will reasonably assure his future appearance as required. Indeed, important factual distinctions exist with respect to this previous incident which strain analogy to the instant matter.

Significantly, during the time Mr. Mitnick failed to surrender on the previous warrant, he was not subject to conditions of bail specifically designed to assure his appearance. No coercive conditions, such as loss of the value of bond, were in place as an incentive to appear. Consequently, his failure to surrender does not demonstrate a general aptitude to flee from judicial obligations without regard to consequences. In fact, the applicant's history affirmatively demonstrates that every time he has been subject to release on conditions of bail, he has dutifully made all appearances required of him. The totality of these circumstances preclude a finding that no combination of conditions exists which will reasonably assure the appearance of this applicant as required. Moreover, given the broad assurances provided for above, the failure to grant release in this case would be "excessive" regulation in violation of the Eighth Amendment of the Constitution. Salerno, 481 U.S. 739, 754 (government's proposed detention may not be 'excessive' in light of regulatory interest).

Adjudging Due Process challenges to the length of pretrial detention, courts consider the length of confinement in conjunction with the extent to which the prosecution bears responsibility for the delay that has ensued.United States v. Gelfuso, 838 F.2d 358 (9th Cir. 1988) United States v. Gelfuso, 838 F.2d 358, 359 (9th Cir. 1988). A significant portion of the delay in this case is attributable to the prosecution's prolonged refusal to provide the defense a copy of the majority of the discovery in accordance with its obligations under Fed.R.Cr.Proc. 16Fed.R.Cr.Proc. 16(a)(1)(C). The defense had repeatedly requested these materials beginning as early as October, 1996, without success. Exhibit H. Finally, on June 3, 1998, the district judge ordered the government to provide the defense with a copy of the requested evidence. Exhibit I. As of the date of this filing, the government is still not in full compliance with the district court's discovery order.

The severity of the harm suffered by Mr. Mitnick as a result of his detention cannot be underestimated. This Court has noted that "the interlude between arraignment and trial is 'perhaps the most crucial period of the proceedings...when consultation, thorough going investigation and preparation...[are] vitally important...'Powell v. Alabama, 287 U.S. 45 (1982) Powell v. Alabama, 287 U.S. 45, 57 (1982). This sentiment is of especial consequence in the case at bar. The district court has deemed this case complex for purposes of the Speedy Trial Act. Numerous obstacles associated with the applicant's detention have created serious hardship in the preparation of the defense. As previously indicated, the vast majority of the evidence is stored electronically on various computer systems. Review of this evidence requires significant technical expertise and specialized computer hardware and software equipment. The applicant is uniquely qualified to review this discovery (some of which was seized from his personal computers) as a result of his technical expertise. However, during the first twenty months of his pretrial detention, the applicant was absolutely denied the ability to personally review this evidence. Even pursuant to the district court's current omnibus order, the applicant is only entitled to review the electronic discovery (which, according to the government, would fill the entire courtroom if printed on paper) while in the presence of counsel. There does not appear to be any logical explanation for this additional unnecessary restriction. The prosecution's strategy in limiting the applicant's access to the discovery, both personally and through counsel, has needlessly contributed to the length of the delay in this matter. See United States v. Accetturo, 783 F.2d 382 (3rd Cir. 1986)United States v. Accetturo, 783 F.2d 382, 388 (3rd Cir. 1986) (due process judgments should reflect factors such as the length of the detention that has in fact occurred, the complexity of the case, and whether the strategy of one side or the other has added needlessly to that complexity.) These tactics have resulted in delay of the proceedings, serious prejudice to this applicant, and offer compelling justification for his immediate release.

This Court has noted that, "a defendant confined to jail prior to trial is obviously disadvantaged by delay." Barker v. Wingo, 407 U.S. 514, 526-27 (1972). This applicant has been especially prejudiced by virtue of the oppressive pretrial detention which he has endured. See discussion re: discovery supra part III.C. His state of incarceration has contributed to his prolonged and intense anxiety during to the pendency of these proceedings. Most importantly, due to his restricted access to the voluminous electronic evidence while in prison, the applicant's detention has exacted a heavy toll on his ability to adequately prepare his case, a consequence which this Court has noted, "skews the fairness of the entire system." Barker v. Wingo, at 531. For all the foregoing reasons, the sheer length of the pretrial detention in this matter is effectively punitive in violation of the Fifth Amendment of the Constitution and should be remedied by this Court through an order for his immediate release.

This Court has recognized, quite obviously, that ordering release is a proper remedy for an individual detained in violation of the Bail Reform Act. Montalvo-Murillo, 495 U.S. 711, 721. Previous courts have found ordering the defendant's release is appropriate based upon even inadvertent or technical violations of the Act. The court in United States v. Fernandez-Alfonso, 813 F.2d 1571, concluded that a thirty-day delay in reviewing a magistrate's detention order constituted such a violation of the Act that it ordered the defendant released even though the district court had previously found that no condition or combination of conditions could reasonably assure his appearance. 813 F.2d at 1573. Mindful of the competing interests at stake the court ordered the defendant released but remanded the case to the district court in order to fashion appropriate conditions of release stating:

"Although the Bail Reform Act's procedural safeguards serve to protect the accused's liberty interests, societal interests in bringing defendants to trial and in preventing flight also counterbalance those concerns...In this case, the holding that thirty days violates the promptness requirement of section 3145(b) addresses the former concern; the remedy of conditional rather than unconditional release addresses the latter. Id.

A similar order in this case would, likewise, address the interests of both this individual and society at large. The violations of the Act which occurred in the case at bar were not merely inadvertent or technical. Rather, they were aggravated and intentional deviations affecting the most substantive rights the Act seeks to protect. Under these circumstances, ordering the immediate release of the applicant is the only just remedy. To the extent that societal interests may be affected by such release, a panoply of specifically tailored conditions of release are available to preserve these interests without further undue restriction to the applicant's already bleeding liberty interests.

Because this applicant has been illegally detained without having been afforded his constitutional rights to a detention hearing, and because the applicant is being illegally detained absent any findings of fact or conclusions of law which could support his detention, and because the excessively prolonged period of the applicant's pretrial detention is effectively and illegally punitive, this Court should order the release of the applicant forthwith.

 
DATED:            August 17, 1998                                Respectfully submitted,
                                                                                   RANDOLPH & LEVANAS
                                                                                   By: _________________________
                                                                                   Donald C. Randolph
                                                                                   Attorneys for Applicant
                                                                                   KEVIN DAVID MITNICK