DONALD C. RANDOLPH, ESQ., California State Bar Number: 62468
RANDOLPH & LEVANAS
A Professional Corporation
1717 Fourth Street, Third Floor
Santa Monica, California 90401-3319
Telephone: 310/395-7900
Attorneys for Defendant
KEVIN DAVID MITNICK
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
UNITED STATES OF AMERICA, ) CASE NO. CR 96-881-MRP
)
Plaintiff, ) REPLY TO GOVERNMENT'S
) OPPOSITION TO DEFENDANT'S
v. ) MOTION FOR ACCESS TO A
) COMPUTER FOR REVIEW OF
KEVIN DAVID MITNICK, et. al, ) DISCOVERY; DECLARATION OF
) DONALD C. RANDOLPH
Defendants. )
) DATE: March 9, 1998
) TIME: 1:30 p.m.
) COURT: 12
)
)
________________________________)
TO NORA M. MANELLA, UNITED STATES ATTORNEY, AND TO HER ASSISTANT,
CHRIS PAINTER:
The defendant, KEVIN DAVID MINTICK, by and through his attorney
of record, Donald C. Randolph, hereby responds to the government's
opposition to the motion for access to a computer filed previously
with this Court.
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This reply is based upon the attached memorandum of points and
authorities, the files and records in this matter, and upon any oral
or documentary evidence which may be presented at the hearing on this
matter.
DATED: March 3, 1998 Respectfully submitted,
RANDOLPH & LEVANAS
By: ________________________________
Donald C. Randolph
Attorneys for Defendant
KEVIN DAVID MITNICK
MEMORANDUM OF POINTS AND AUTHORITIES
I.
INTRODUCTION
In seeking to deny the defendant access to a computer in this
case, the government resultingly attempts to deny him effective
assistance of counsel in the review of the discovery held against him.
The government's professed assistance to defense counsel in this
regard has taken the form of obstruction from the evidence to which he
is lawfully entitled.
II.
ARGUMENT
A. The Government has Failed to Adequately Provide
the Defense with the Ability to Inspect and Copy
the Discovery in its Possession.
The government attempts to absolve itself of all responsibilities
under Rule 16 on the plea that it has made this evidence "available
for inspection." In actuality, the government has impermissibly
frustrated the defense's ability to review the unfathomable volume of
evidence in this case by precluding the defense from meaningful access
to this morass of information.
The technical difficulties facing the defendants in accessing the
discovery in this case are compellingly articulated in the Reply to
Government Response Re Bill of Particulars and supporting
documentation submitted by defendant Lewis De Payne by and through his
attorney, Richard G. Sherman. Defense counsel for defendant Mitnick
endured a similarly unproductive appointment to review this material
in June, 1997. It became readily apparent after just one such
experience that future efforts to review the discovery in the manner
proposed by the government would prove entirely futile.
In addition to these difficulties, the government's offers to
"assist" the defense by allowing review of the discovery at the FBI
offices must be considered disingenuous considering the total lack
privacy and confidentiality such review sessions would afford. As
evidenced by the government's own investigation in this case, the act
of reviewing data on a computer system leaves a clear record
indicating which files were opened, for how long, and can even
indicate each individual stroke entered into the computer keyboard.
By virtue of these capabilities, any review of the discovery on the
government's own computer system would irrevocably compromise the
defendant's attorney work-product privilege by exposing every detail
of the defense review of this material.
B. The Defendant is Entitled to All of the Discovery
Held Against Him in this Case.
There is no question that all of the discovery in the
government's possession falls within the ambit of Rule 16 and is
therefore required to be provided to the defense. Nonetheless, the
government inexplicably feels entitled to withhold some of this
information, by its own designation, without either guidance or
authorization from the Court.
Even had the government properly moved to restrict the
defendant's access to some information under the rubric of a
protective order, such a motion would be inappropriate in this case.
The government has charged the defendant with fourteen counts of wire
fraud under 18 U.S.C. § 1343 and alleges in the indictment that the
defendant:
"carried out a scheme to defraud, and to obtain property by
means of false pretenses representations and promises,
by...stealing, copying, and misappropriating proprietary
computer software..."
Indictment at 2.
An elements of this crime is that the defendant obtained
property, thus in order to find the defendant guilty, the government
must prove the existence of such property. In this case, the
government seeks to relieve itself of this burden by unilaterally
declaring that evidence in its possession constitutes "proprietary
computer software," and then denying the defense access to the
evidence necessary in order to refute such claim. The government has
no authority to withhold this evidence. See United States v. Kai-Lo
Hsu, 982 F.Supp. 1022 (E.D.Pa. 1997) (government's request for
protective order covering purported 'confidential trade secrets'
denied where proving existence of trade secret was element of crime.)
Most audacious is the government's extortionate attempt to
predicate the disclosure of encrypted discovery upon the defendant's
willingness and ability to offer potentially self-incriminating
statements. There is no authority to support a proposition that
simply because the government does not understand the material in its
own possession, it may lawfully withhold such material pending
explanation from the defense. The Fifth Amendment dispels any
question about whether a defendant must decipher evidence, and thereby
potentially incriminate himself, in order to inspect evidence held
against him by the government.
Finally, the government greatly overstates the difficulty
associated with providing a complete copy of the electronic discovery
in this case. While the information is too vast to be comprehended by
a human in any brief period of time, the burden on human resources
associated with making a machine-readable copy is negligible.
C. Providing the Defendant with Access to a Computer
is the Most Cost-Effective way of Allowing
Meaningful Review of the Discovery.
While the Court surely has legitimate concerns regarding the
public cost associated with the defendant's request for computer
equipment, the government's own proposal is the most cost-prohibitive
scenario possible. Under the government's plan, the defendant,
accompanied by U.S. Marshals, would travel to the FBI to review the
data. Obviously such review sessions could only take place in the
additional presence of defense counsel. The Court has already
expressed its disapproval of such a mechanism for reasons unrelated to
the defendant's own objections. [Transcript of Hearing 10/8/97,
Exhibit B]. In light of the extraordinary volume of data, and the
need for both defense counsel and U.S. Marshals to be present at all
times with the defendant, this method of review would likely be the
most costly. Even if the Court were to decide that Mr. Mitnick was
not to personally conduct this review, the defense would, nonetheless,
be forced to seek appointment of an expert capable of both operating
these computer systems and understanding the nature of the data
contained therein, most likely at a comparable cost.
The most cost-effective means of ensuring that Mr. Mitnick has
the opportunity to meaningfully review the evidence in this case is to
release Mr. Mitnick him on bail and thereby allow him to conduct such
review at the offices of defense counsel. If otherwise unavailable,
all necessary equipment can be leased at a likely cost of less than
$1,000 per month.
The second most cost-effective means of reviewing the discovery
in this case is to provide for Mr. Mitnick's access to the necessary
computer equipment at the Metropolitan Detention Center. The
government opposes this scenario citing "security concerns" mentioned
by Warden W.H. Seifert, which "significantly limit the type of
equipment that inmates may access." Government's Opposition at 7
(quoting letter from Warden W.H. Seifert dated February 2, 1998).
Interestingly, the Warden stated no similar concerns concerning Mr.
Mitnick's access to a computer in response to a previous defense
request for the same. [Letter dated January 27, 1997, Exhibit C].
Rather, his only concern lay with defense counsel transporting a
computer into the facility. Thus, it appears that in reality there is
no compelling security concern associated with Mr. Mitnick's access to
an isolated computer system at the MDC. Morever, Mr. Seifert's
objection to the defendant's latest request for computer access was
predicated upon a presumption of the Court's disapproval of such a
plan. This consideration has no bearing on the viability of this
proposal for the purposes of ensuring prison security.
The government misleads the Court regarding the authority it
cites in support of its position here. The Supreme Court, in Pell v.
Procunier, 417 U.S. 817 (1974) examined the question of a convicted
inmate's visitation rights with members of the press but made no
inquiry into the interests of the Bureau of Prisons versus an inmate's
right to effective assistance of counsel. Meanwhile, in United States
v. Robinson, 913 F.2d 712 (9th Cir. 1990) the Ninth Circuit upheld
some restrictions on an inmate's ability to access legal materials
only after finding that the district court judge "went out of his way
to ensure Robinson 'meaningful access' to resources with which to
prepare his defense." 913 F.2d 712, 718. The district court's
efforts in this regard included arrangements for the defendant's
documents to be transported back and forth every day from the
courthouse to the jail and appointing stand-by counsel. Id., at 718
n. 4.
Considering the technically complex nature of the evidence held
against him, Mr. Mitnick clearly has a compelling interest in
personally reviewing the electronic discovery in this case. The mere
fact that Mr. Mitnick is represented by counsel does little to ensure
him effective assistance of counsel due to the specialized nature of
this evidence. Mr. Mitnick can only receive effective assistance of
counsel if his attorney is able to first, actually review the
discovery in confidence and, secondly, consult with someone who can
understand and explain the nature of the evidence. Mr. Mitnick is
qualified to assist the defense in this capacity, at no additional
cost to taxpayers, provided he is given the equipment necessary to do
so.
III.
CONCLUSION
For all the foregoing reasons, the defendant's motion for
computer access should be granted.
DATED: March 3, 1998 Respectfully submitted,
RANDOLPH & LEVANAS
By: ____________________________
Donald C. Randolph
Attorneys for Defendant
KEVIN DAVID MITNICK