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, Plaintiff, v. KEVIN DAVID MITNICK, et. al, Defendants. ------------------------------------------ CASE NO. CR 96-881-MRP NOTICE OF MOTION AND MOTION FOR DISCOVERY DATE: May 10, 1999 TIME: 1:30 p.m. COURT: 12 TO NORA M. MANELLA, UNITED STATES ATTORNEY, AND TO HER ASSISTANT, DAVID SCHINDLER AND CHRISTOPHER PAINTER: PLEASE TAKE NOTICE that on May 10, 1999, at 1:30 p.m., or at a date and time convenient to the Court and counsel, defendant, KEVIN DAVID MITNICK, by and through his attorney of record, Donald C. Randolph, will move this Court for an Order requiring the government to produce discovery relevant to the issue of restitution. In addition, Mr. Mitnick requests a modified briefing schedule. This motion is based upon the following Memoranda of Points and Authorities, the attached Exhibits, and any oral and documentary evidence which may be presented at hearing on this matter. DATED: April 19, 1999 Respectfully submitted, RANDOLPH & LEVANAS By: ______________________________ Donald C. Randolph Attorneys for Defendant KEVIN DAVID MITNICK MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION By this motion, the defendant requests that the Court order the government to disclose any and all documentation regarding the issue of restitution. Furthermore, the defense requests this Court set a compliance date for disclosure of discovery after which time the government be precluded from using further evidence to prove restitution. In addition, the defense is requesting a modified briefing schedule. On March 26, 1999, Mr. Mitnick pled guilty to certain counts in the indictment; the only issue open for the Court to decide is the amount of restitution. As the Court ordered, the parties must brief all issues relating to restitution by June 1, 1999. On March 31, 1999, the defense requested all discovery relating to restitution from the government. (See letter at Exhibit A, page 8). On April 14, 1999, some information was received from the government. (See Exhibit B, page 10). In its letter, the government indicates that it "will forward any additional loss discovery as it is received." (See Exhibit B, page 11). The defense is concerned about receiving further discovery in time to evaluate it properly, seek and obtain documents and evidence relevant to the disputed items, and articulate to the Court how the law should apply to such information. As such, the defense requests that the Court order the government forthwith to turn over any and all documentation and other information relating to loss, damages, and restitution, as well as set a final date in May, 1999, by which the government must comply. The current briefing schedule requires the government and the defense to file their briefs on this issue on June 1, 1999. Because of this, the defense will be required to file two different pleadings. In the first pleading, to be filed on June 1, 1999, the defense will oppose the amount of restitution anticipated to be requested by the government based on the discovery disclosed. After receiving the government's pleading, the defense will file a response opposing the government's actual request. As the government has the burden of proving the amount of restitution required, the defense requests that the Court modify the briefing schedule so that the defense may file only one pleading after the government has filed its actual request for restitution. II ARGUMENT B. A Discovery Order By This Court is Appropriate as the Defense has a Legal Obligation to Rebut the Disputed Information. Under the Victim and Witness Protection Act, "the government has the burden of establishing by a preponderance of the evidence that the victim's damages were caused by conduct of which the defendant was convicted." U.S. v. Rice, 38 F.3d 1536, 1540 (9th Cir. 1994)(citing U.S. v. Parrott, 992 F.2d 914,916, 9th Cir. 1993) The defendant has a right not to be sentenced on the basis of invalid information (U.S. v. Safirstein, 827 F.2d 1380, 1385, 9th cir. 1987). Thus, the defendant must be given a reasonable opportunity to rebut any information offered by the government to prove loss and damages in order to provide the court with accurate, complete information. In addition, according to the Sentencing Guideline §6A1.3(a), "When any factor important to the sentencing determination is reasonably in dispute, the parties shall be given an adequate opportunity to present information to the court regarding that factor." Obviously, in order to present evidence regarding a fact in dispute, the defense must be made aware of the government's position. Here, the amount of restitution that should be ordered is in dispute. In order to properly present to the Court information countering the government's assertion of the amount of restitution required, the defense must know exactly what amount of restitution the victim companies are claiming. Courts appear to be applying general discovery rules to sentencing hearings. In U.S. v. Rosa (891 F.2d 1074, 3rd Cir. 1990), the Third Circuit Court of Appeals held that the defendant was entitled to Jencks Act material.1 The court held that "the sentence imposed on a defendant is the most critical stage of criminal proceedings, and is, in effect, the 'bottom-line' for the defendant, particularly when the defendant has pled guilty." 891 F.2d at 1079. Here, as the Court is aware, the defendant pled guilty and is scheduled for sentencing on June 14, 1999, after a hearing on restitution, the only contested issue. According to the Plea Agreement accepted by this Court, the amount of restitution set by the Court on the date of sentencing is most certainly the "bottom-line," as the defendant has agreed to give up his right to appeal. Therefore, receiving the necessary discovery from the government so that the defense may present rebuttal evidence to the Court is all the more important. The Defense is Entitled to Any Brady Material That Either Exculpates the Defendant or Mitigates the Damage Done. Brady v. Maryland (373 U.S. 83, 1963) and its progeny require the government to disclose all favorable evidence that is material to either "guilt or punishment," Brady at 87 (emphasis added). Any information the government has in its possession that would tend to discredit the claims of loss of the victim companies is potential Brady material. This includes information that any of the victim companies used resources, disclosed information, or restricted the use of their systems to assist the government in its investigation. In addition, any evidence of other intruders in the victim companies' computer systems at the same time would be exculpatory as to the loss and damages issue attributable to Mr. Mitnick. For example, the affidavit in support of the search warrant for the apartment in Raleigh, North Carolina asserts that staff, as well as government agents, at both Netcom and the Well (internet service providers) allowed the intruder continued access while monitoring his actions. (See Exhibit C, page 19) In addition, in a statement made to the FBI, Mark Seiden at Internex (another internet service provider) monitored the intruder throughout early February, 1995, allowing the intruder access up until February 12, 1995. (See Exhibit D, pages 33 - 36) Staff at Fujitsu, in statements made to the government, related that the FBI requested they allow the intruder to continue accessing their systems for a few days. (See Exhibit E, pages 39, 42, 43) There is reason to believe that other victim companies also cooperated with the government in this manner. Obviously, any time spent accessing the victim companies' computer systems with their permission cannot be attributed as "loss" caused by the defendant. All information of this type is Brady material and should be turned over to the defense as soon as possible. III. CONCLUSION For all the foregoing reasons, the defendant respectfully requests that this Court order the government to turn over to the defense any and all documentation regarding the issue of restitution by such date as the Court determines will provide adequate time to prepare and brief these matters. The defense requests that any documentation not turned over by that date be barred from use by the government to prove the issue of loss, damages, or the amount of restitution. DATED: April 19, 1999 Respectfully submitted, RANDOLPH & LEVANAS By: __________________________ Donald C. Randolph Attorneys for Defendant KEVIN DAVID MITNICK