ALEJANDRO N. MAYORKAS United States Attorney DAVID C. SCHINDLER Assistant United States Attorney Chief, Criminal Division DAVID J. SCHINDLER (Bar No. 130490) Assistant United States Attorney Senior Litigation Counsel CHRISTOPHER M.E. PAINTER (Bar No. 154034) Assistant United States Attorney Major Frauds Section 1100 United States
312 North Spring Street Los Angeles, CA 90012 (213) 894- 0336/0358 Attorneys for Plaintiff UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA UNITED STATES OF AMERICA ) case No. CR 96-881-MRP ) Plaintiff ) GOVERNMENT'S OPPOSITION TO ) DEFENDANT MITNICK'S EX PARTE v. ) APPLICATION TO CONTINUE TRIAL ) AND ORDER DISCOVERY KEVIN DAVID MITNICK ) ) (NO HEARING REQUESTED) and LEWIS DE PAYNE, ) ) Defendants. ) ) ) ________________________________) The United States of America by and through its undersigned counsel of record, hereby oppose defendant Mitnick's latest motion to continue the trial and order discovery. This opposition is based on the attached memorandum of points and authorities, the files and records in this matter, and upon such further evidence as may be presented at any hearing on this matter. However, the government respectfully submits that no hearing is necessary and that defendant's latest request to continue the trial should be denied without a hearing DATED: January 21, 1999. Respectfully submitted, ALEJANDRO N. MAYORKAS United States Attorney DAVID C. SCHEPER Assistant United States Attorney Chief, Criminal Division DAVID J. SCHINDLER Assistant United States Attorney Senior Litigation Council CHRISTOPHER M.E. PAINTER Assistant United States Attorney
Attorneys for Plaintiff UNITED STATES OF AMERICA MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Ignoring this court's admonition that no further continuances would be granted, and ignoring this court's observation that it is time for this case to proceed to trial, defendant Mitnick yet again seeks to have the trial date in this matter postponed. Recognizing that his failure to review the evidence, his apparent failure to retain an expert in a timely fashion, his failure to conduct any investigation in over three years, and his counsel's trial conflicts arising from more recent engagements are not appropriate grounds for yet another continuance, defendant instead seeks to manufacture alleged governmental misdeeds in the hope that the court will grant yet another continuance of the trial date. As set forth below, defendant's request should be denied. II. STATEMENT OF FACTS In June 1998, after exhaustive briefing and arguments, this court issued an omnibus order re: pretrial management and discovery. The early disclosure of witness statements and exhibit lists, as well as the continuance of the trial date, ordered by the court were specifically designed to address defendant's claim that the volume of electronic evidence, coupled with problems in reviewing the electronic evidence made it difficult for him to prepare for trial under a normal schedule. In short, the generous pretrial discovery schedule accounted for the myriad excuses defendant had for being unable to prepare for 3 trial sooner. Moreover, in December 1998, the court granted yet another request for a continuance, continuing the trial to April 20, 1999. Despite this additional time, defendant still has not prepared for trial. The government has not only complied with the schedule set forth in the omnibus order, but has exceeded that schedule in great measure. Witness statements were produced in November, 1998, more than five months in advance of trial (the omnibus order mandated production 90 days before trial). Similarly, the government produced a tentative exhibit list more than 90 days prior to trial (the omnibus order mandated production of the exhibit list 60 days prior to trial). Despite the fact that defendant has received evary accommodation, he once again seeks to continue the trial, based upon misrepresentations of fact and a repackaging of the same pleas for more time that originally caused the court to impose the extraordinarily early disclosure of discovery as set forth in the omnibus order. Tne government long ago affirmatively produced copies of all the relevant electronic evidence (except encrypted files), as well as vast amounts of electronic evidence that has nothing to do with this case. Prior to the December 3, 1998 hearing, defendant complained that the electronic copies he received were somehow inadequate. The government disputed defendant's claim but, in an effort to move the case to trial, agreed to provide defendant with oopies of any previously deleted files that had been recovered even though the government had affirmatively 4 indicated that it did not intend to use any such files. The government thereafter affirmatively produced copies of any "deleted" files and/or files contained ln "slack space" of either hard drives, just as defendant had requested. (The volume of readable files was minimal). The government heard no further complaints from defendant until it received the latest filing. The government respectfully submits that defendant is improperly seeking to transform the government's good faith gesture into some kind of discovery violation. ln addition, the government voluntarily provided copies of additional CD's containing copies of electronic files again having nothing to do with either defendant, but which defendant asked to see (these CD's contained partial system backups of computers belonging to USC and Colorado Supernet includinq files from hundreds of thousandc of computer accounts having nothing whatsoever to do with this case). The government's production of these additional CD's was beyond any discovery obligations imposed by Rule 16 or by this Court's omnibus order; rather, these files were affirmatively copied for defendant as a courtesy and good faith gesture to move this case to trial. Thus, it is particularly inappropriate that defendant now attempts to leverage the government's decision to exceed its discovery obligations into some form of "late discovery." The simple truth is that defendant has failed to exercise any diligence in reviewing or analyzing the electronic discovery and, therefore, he is searching for any mechanism to avoid proceeding to trial on schedule. 5 B. Mitnick's Access To A Laptop At MDC Defendant also seeks to blame his failure to prepare on the Metropolitan Detention Center when it is undisputed that: (a) the govennment has gone to extraordinary lengths to allow defendant access to a computer st the MDC even though there is no legal requirement that a represented derendant be permitted access to a computer while incarcerated; (b) defendant failed to provide a laptop to the governmant for approval for more than six months after the government had agreed to allow him access; and (c) the laptop had to be approved by the MDC before defondant would be granted access. Perhaps most troubling is defendant's complaint that his access is constrained by having to review the electronic discovery during business hours when defendant agreed and acknowledged that the laptop would only be available during the normal working hours of the legal staff. C. The Exhibit List In a further effort to move this case to trial, the government had voluntarily agreed to attempt to provide a tentative list to defendants during the week of December 14, 1998, long before the 60 day requirement set forth in the omnibus order. Indeed, the tentative exhibit list was provided more than 90 days before trial, well ahead of the schedule set forth in the omnibus order. For defendant to suggest that his failure to prepare is attributable to the government's failure to provide _________________________ *1 The government had hoped to produce the tentative exhibit list 140 days before trial. However, the extra time was attributable to defendant's demand that the government individually delineate which files it believed should be subject to a protective order. Hence, the government had to review every single file and individually list each file that it believes is subject to the protective order. 6 the exhibit list sooner completely ignores the timing requirements set forth in the omnibus order and completely ignores the fact that he has had the electronic evidence for months or years. D. The Proposed Protective Order Defendant also disingenuously implies that he was somehow unable to prepare because he did not earlier have a proposed protective order or a list of files the government believes should be subject to the protective order. The two issues are entirely unrelated. Defendant has had individual copies of the electronic files for months or years and they have all been available for review since the case was indicted in 1996. Whether certain files will be subject to a protective order to prevent inappropriate disclosure has no bearing on defendant's ability to review these files and prepare for trial. In any event, the government has provided defendant with a list of files it believes should be governed by a protective order as well as proposed language for a stipulated order. E. Lack of Defense Investigation The proposed investigation defendant now seeks to undertake reveals his complete lack of diligence. The fact that some of the witnesses in this case are in foreign countries has been known to defendent since 1996 when the case was indicted and since 1996 when defendant received the initial discovery containing copies of tape recorded calls defendant made to foreign countries. Indeed the indictment alleges that certain of the victims are in foreign countries. The contention that defendant only realized this fact in December 1998 is false. 7 Likewise, all of the facts regarding defendant's arrest in February 1995, or the search of his apartment in Seattle, have been known to defendant since 1995. It is absurd for him now to suggest that his failure to bring motions pertaining to those searches, or his failure to conduct any additional investigation concerning those searches, or his arrest, are somehow attributable to the government. III. CONCLUSION The government respectfully submits that it is time to go to trial; just as the court previously noted. For the foregoing reasons, the government respectfully submits that defendant's latest motion to continue the trial should be denied. Indeed, the government respectfully submits that the court should deny the witness without a hearing. 8