UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
UNITED STATES OF AMERICA, ) CASE NOS. CR 95-603-MRP;
) AND CR 96-881-MRP
)
Plaintiff, ) NOTICE OF APPLICATION; AND,
) APPLICATION FOR CLARIFICATION
) OF SUPERVISED RELEASE TERMS
) AND CONDITIONS; DECLARATION
) OF COUNSEL AND EXHIBITS; AND
) MEMORANDUM OF LAW
vs. ) [18 U.S.C. § 3583; FRCrP
) RULE § 32.1(B)]
KEVIN DAVID MITNICK, )
) Date: June __, 2000
Defendant. ) Time: 1:30 P.M.
___________________________________) Court: 12
TO THE HONORABLE MARIANA R. PFAELZER, JUDGE PRESIDING; THE UNITED STATES PROBATION DEPARTMENT; AND THE UNITED STATES ATTORNEY'S OFFICE:
PLEASE TAKE NOTICE that at the above-referenced time and place, in the courtroom of the Honorable MARIANA R. PFAELZER, Judge Presiding, or as soon thereafter as counsel may be heard, the defendant-KEVIN DAVID MITNICK will move the court for an order [a] clarifying the terms of Mr. Mitnick's supervised release condition and/or [b] interpreting the supervised release condition in order to permit Mr. Mitnick to express his opinions, contribute his knowledge and experience for the public good, related to raising awareness about computer security, computer trespass and social engineering issues, and computer fraud prevention.
Although initially permitted to grant such media-interviews and participate in speaking-engagements, which included speaking at the Congress, the probation department has now precluded Mr. Mitnick from expressing his opinion regarding computer/technology security and/or speaking-engagements to reputable public and/or private-sector entities regarding how to avoid and prevent intrusions/ trespasses into computer/data and information systems.
This application/motion is based upon the records and files of this case, upon these moving papers, including the declarations and exhibits attached hereto, the Memorandum of Points and Authorities, and upon such further oral and/or documentary evidence as may be presented to the court during the hearing on this matter.
Dated: June 2, 2000 Respectfully submitted,
SHERMAN M. ELLISON
Attorney for Defendant
KEVIN DAVID MITNICK
TOPICAL INDEX
NOTICE OF APPLICATION; AND, APPLICATION FOR CLARIFICATION 1
OF SUPERVISED RELEASE TERMS AND CONDITIONS; DECLARATION
OF COUNSEL AND EXHIBITS; AND MEMORANDUM OF LAW
[18 U.S.C. § 3583; FRCrP RULE § 32.1(B)]
DECLARATION OF COUNSEL IN SUPPORT OF APPLICATION 3
FOR CLARIFICATION OF SUPERVISED RELEASE CONDITIONS
MEMORANDUM OF LAW, POINTS AND AUTHORITIES IN SUPPORT 12
OF APPLICATION FOR CLARIFICATION OF SUPERVISED
RELEASE TERMS AND CONDITIONS
[18 U.S.C. § 3583; FRCrP RULE § 32.1(b)]
INTRODUCTION 12
STATUTORY AUTHORITY 13
CASE LAW AUTHORITY 13
COMMENTS AND PROCEEDINGS During the Sentencing Hearings 17
I. JUNE 27, 1997 SENTENCING TRANSCRIPT 17
II. JULY 12, 1999 SENTENCING TRANSCRIPT 19
III. JULY 13, 1999 LOS ANGELES DAILY NEWS 19
SENTENCING GUIDELINES 20
CONCLUSION 22
PROOF OF SERVICE 23
TABLE OF AUTHORITIES
FEDERAL STATUTES
18 U.S.C. § 3583 1, 12-13, 16
Federal Rules of Criminal Procedure, Rule 32.1(b) 1, 12-13
FEDERAL STATUTES
Porth v. Templar (10th Cir. 1971), 453 Fed.2d 330, 334 13
United States v. Consuelo-Gonzalez 14
(En Banc; 9th Cir. 1975) 521 Fed.2d 259
United States v. Lowe (9th Cir. 1981) 654 Fed.2d 562, 567-568 14
United States v. Mills (5th Cir. 1992) 959 Fed.2d 516 22
United States v. Peete (6th Cir. 1990) 919 Fed.2d 1168, 1181 15
United States v. Terrigno (9th Cir. 1987) 838 Fed.2d 371, 3742 15
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
UNITED STATES OF AMERICA, ) CASE NOS. CR 95-603-MRP;
) AND CR 96-881-MRP
)
Plaintiff, ) DECLARATION OF COUNSEL
) IN SUPPORT OF APPLICATION
) FOR CLARIFICATION OF
) SUPERVISED RELEASE ) CONDITIONS
vs. )
)
KEVIN DAVID MITNICK, )
)
Defendant. )
___________________________________)
I, SHERMAN M. ELLISON, do hereby declare under penalty of perjury that the following is true and correct except as to those matters stated on information and belief, which matters I believe to be true.
1. I am an attorney in good standing in the State Bar of California, a member of the Bars of the Central District of California, Ninth Circuit Court of Appeals and the United States Supreme Court.
/ / / /
2. I seek leave of this Honorable Court to file this application on behalf of Mr. Mitnick herein on a pro bono basis for the limited purpose of this application only.
2.1. On April 22 and on May 26, 2000, I had spoken with Mr. Donald C. Randolph, Mr. Mitnick's attorney of record herein. Mr. Randolph has advised me that he has been informed that CJA will not authorize the funding of an application for clarification of Mr. Mitnick's supervised release condition.
2.2. Mr. Randolph advised that he would not object to and/or would consent to this effort on behalf of Mr. Mitnick in this limited regard.
2.3. I advised Mr. Randolph, and do hereby respectfully advise this Honorable Court, that I would be willing to associate herein on a pro bono basis for the limited purpose of this application/motion and hearing thereon.
3. In that regard, on May 1, 2000, I personally met with Mr. Larry Hawley, Mr. Mitnick's probation officer at Mr. Hawley's office in Ventura, California, regarding the issues discussed herein. I have also spoken with Mr. Hawley on the telephone on at least two (2) or more occasions.
3.1. The gist of my communications with Mr. Hawley was that the probation department would have no objection to Mr. Mitnick being engaged and working in the capacity of a technology journalist, commentator, media spokesman, information security consultant or the like if the court had no objection.
3.2. However, the probation department has read and/or interpreted the conditions of supervised release from the Judgment and Probation/Commitment Order, and the specific condition, to wit,
"(5) without the prior express written approval of the Probation Officer: . . . 4. The defendant shall not act as a consultant or advisor to individuals or groups engaged in any computer related activity;" . . .
to mean that Mr. Mitnick cannot be engaged and/or employed to speak, express his opinion and/or communicate with various business and/or media related entities, either public, government, private and/or otherwise reputable, about technology and/or computer security, even though there was the specific understanding that Mr. Mitnick would not use or have access to a computer.
3.3. Mr. Hawley has essentially advised me that if his or the probation department's interpretation is overbroad and/or inconsistent with the court's intentions, that he would appreciate the filing of an application in order to clarify the court's intentions.
4. I respectfully explained to Mr. Hawley that Mr. Mitnick wants to take his acquired knowledge and use it [a] for the protection of the public and the public good and [b] for his own rehabilitation and gainful employment.
4.1. That is, Mr. Mitnick would like to express his opinion, advise and/or consult as a media journalist, public speaker, information security consultant and/or commentator in a manner that would help and assist the government, public and private sector entities about [a] how to prepare for and/or detect computer/data security violations and [b] how to remedy, prevent and avoid same in the present and the future.
5. Mr. Hawley did not have any objections with Mr. Mitnick's desire to do good for the community and himself.
5.1. However, Mr. Hawley essentially commented that the broad, undefined language in the Judgment and Probation/Commitment Order regarding acting as a "consultant or advisor to individuals or groups engaged in any computer related activity" would seem to prevent Mr. Mitnick from speaking and/or communicating to such entities about computer security and information/computer technology, as more thoroughly described in paragraph 4.1, above.
6. To reiterate, Mr. Hawley on behalf of the Probation Department encouraged the filing of such an application herein in order to resolve the uncertainties in the language of the supervised release conditions relevant hereto.
6.1. Mr. Hawley advised that he had received numerous requests from media [radio, television and print] and private section corporations and entities to allow Mr. Mitnick to write articles, to speak at their seminars, round-tables and media events.
7. Mr. Mitnick had initially been permitted by the Probation Department to travel and participate in such speaking engagements.
7.1. It is from these initially approved speaking engagements that Mr. Mitnick has been able make the full payment of the restitution ordered by this court. This payment was made on May 25, 2000. [Please see Exhibit "A" hereto, check number 8747533809, tendered directly to Mr. Hawley by Mr. Mitnick.]
8. On March 2, 2000, Mr. Mitnick, who had been previously so requested, spoke before the United States Senate. [Please see Exhibit "B", a letter dated February 23, 2000.]
8.1. Mr. Mitnick prepared a statement that was read into the congressional record [Exhibit "C" hereto] and was thereafter involved in a question-and-answer session by the Senate Committee.
/ / / /
8.2. U.S. Senator Daniel Akaka's office submitted additional questions to Mr. Mitnick following his March 2, 2000 testimony. [Please see Exhibit "D", Senate letter dated March 6, 2000, from Hannah Sistare, Staff Director and Counsel to Senator Akaka.]
8.3. In further cooperation with the U.S. Senate Committee, Mr. Mitnick responded by his letter dated March 31, 2000. [See Exhibit "E" hereto.]
8.4. Thereafter, the U.S. Senate Committee caused Mr. Mitnick's comments and expression of opinion to be summarized and placed in the congressional record. [See Exhibit "F" hereto.]
9. Mr. Donald C. Randolph, Esq., Mr. Mitnick's attorney of record submitted a letter to Mr. Hawley, dated March 30, 2000, requesting permission for Mr. Mitnick to be able to be interviewed and/or be engaged as a panelist and/or computer/ information security speaker. [Please see Exhibit "G" hereto.]
9.1. A number of news media and business sector entities have requested that Mr. Mitnick participate in public speaking engagements, media interviews, panel discussions and/or as a journalist and commentator in print/radio/television media on the issues of awareness and the need for computer/data security and related information technology issues. [Please the attachments to Exhibit "G", supra.]
10. Thereafter, on April 12, 2000, Mr. Hawley advised Mr. Mitnick that he could no longer participate in such activities such as "writing and critiquing articles and speaking at conferences, . . .". [Please see Exhibit "H", Mr. Hawley's letter dated April 12, 2000.]
/ / / /
11. I have been informed and believe that the probation officer advised Mr. Mitnick that, due to Mr. Mitnick's notoriety, the probation department was taking the position that they were not going to [and/or were reluctant to] exercise the discretion that the court had given them [relating to speaking, consulting and/or advising on a computer related topic and/or on such occupational related activities.
12. There are other media entities, public organizations and private sector corporations which have expressed their interest in consulting with Mr. Mitnick, including but not limited to:
12.1. Exhibit "I-1" - Carnegie Mellon University, letter dated March 4, 2000.
12.2. Exhibit "I-2" - Ellen Michael Presents, letter dated April 24, 2000, along with an April 26, 2000 e-mail to Sherman M. Ellison.
12.3. Exhibit "I-3" - Business Week Magazine, letter from Mary Holland, dated April 27, 2000.
12.4. Exhibit "I-4" - America's Most Wanted, correspondence dated April 14, 2000 and February 4, 2000.
12.5. Exhibit "I-5" - Association of Certified Fraud Examiners, correspondence dated March 14, 2000 and February 21, 2000.
12.6. Exhibit "I-6" - Computer Channel, letter dated March 30, 2000.
12.7. Exhibit "I-7" - Strategic Medial Alliance, correspondence dated March 22, 2000.
12.8. Exhibit "I-8" - A summary outline of Kevin Mitnick's Effective Information Security, presented to Business Week on May 9, 2000.
I declare under penalty of perjury that the foregoing is true and correct except as to those matters stated on information and belief, which matters I believe to be true. Executed this 2nd day of June, 2000, at Los Angeles, California.
Dated: June 2, 2000 Respectfully submitted,
SHERMAN M. ELLISON
Attorney for Defendant
KEVIN DAVID MITNICK
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
UNITED STATES OF AMERICA, ) CASE NOS. CR 95-603-MRP;
) AND CR 96-881-MRP
)
Plaintiff, ) MEMORANDUM OF LAW, POINTS
) AND AUTHORITIES IN SUPPORT
) OF APPLICATION FOR ) CLARIFICATION OF SUPERVISED
) RELEASE TERMS AND
) CONDITIONS
)
) [18 U.S.C. § 3583; FRCrP
vs. ) RULE § 32.1(b)]
)
KEVIN DAVID MITNICK, )
)
Defendant. )
___________________________________)
INTRODUCTION:
Without having access to and/or using a computer, . . . may Mr. Mitnick speak to, express his opinion and communicate with . . . the U.S. Congress, private industry, public organizations, new media and/or governmental agencies . . . about how to prevent . . .
[a] unlawful security breaches (hacking),
(b) information and data security trespasses,
(c) related computer security and information technology issues and
(d) computer and/or social-engineering fraud prevention . . .
for the express purpose of being an informational benefit to the community and the public . . . by raising awareness in such entities of the potential threats to security and how these intrusions can occur; and more importantly, how to protect oneself and avoid such security violations?
STATUTORY AUTHORITY:
Title 18 U.S.C. § 3583(e)(2) states that the court may modify, reduce, or enlarge the conditions of supervised release, at any time prior to the expiration or termination of the term of supervised release, pursuant to the provisions of the Federal Rules of Criminal Procedure relating to the modification of probation supervised release. [Federal Rules of Criminal Procedure, Rule 32.1(b).]
CASE LAW AUTHORITY:
In the case of Porth v. Templar (10th Cir. 1971), 453 Fed.2d 330, 334, the Court of Appeal is quoted: "In view of the vagueness and the uncertainty as to the breadth of this condition, we conclude that the case must be remanded to the trial court so as to give the court an opportunity to reframe the conditions and to set them forth in more specific terms, at the same time eliminating a condition which would prohibit the naked expression of opinion as to constitutionality of the measures in question."
In United States v. Consuelo-Gonzalez (En Banc; 9th Cir. 1975) 521 Fed.2d 259, the Court of Appeal made the following observations, quoting Porth, supra, at page 264, as follows:
"Nonetheless, limits to the exercise of this discretion have been recognized. For example, in Porth v. Templar, 453 F.2d 330 (10th Cir. 1971), it was held that the [Federal Probation] Act did not permit the imposition of a condition restricting the defendant's right to speak so long as he did not urge others to violate the law. Permissible conditions must "have a reasonable relationship to the treatment of the accused and the protection of the public." . . . "As an example, it is unlikely that probation can be conditioned on the probationer refraining from communicating his views on the probation system or receiving and reading certain periodicals which are otherwise lawfully available."
[Parenthetical phrase and emphasis added.]
In United States v. Lowe (9th Cir. 1981) 654 Fed.2d 562, 567-568, the Court of Appeal is quoted as follows:
"Precisely because defendants here acted purposely, it is likely that they will be disinclined to cross the 250-foot line. The probation condition reasonably meets the goal of keeping the peace and deterring further criminal activity. The sentencing judge did not forbid participation in the anti-nuclear movement, nor did he forbid further anti-Trident speech. Rather, he forbade approach to the base. Climbing the fence was the particular offense he intended to prevent. Keeping the defendants away from the fence was a logical means of prevention. [Emphasis added.]
In United States v. Terrigno (9th Cir. 1987) 838 Fed.2d 371, 374, the Court of Appeal is quoted as follows:
"[9][10] Terrigno contends that the probation condition violates her first amendment rights. Trial courts frequently impose restrictions on speech when a criminal conviction is for crimes committed during the course of expressive activity, e.g., nuclear protest, Lowe, 654 F.2d at 567-68; exportation of arms to the Irish Republican Army, Malone v. United States, 502 F.2d 554 (9th Cir.1974), cert. denied, 419 U.S. 1124, 95 S.Ct. 809, 42 L.Ed.2d 824 (1975); committing an assault during an antiwar demonstration, In re Mannino, 14 Cal.App.3d 953, 92 Cal.Rptr. 880 (1971); or violating election laws, United States v. Tonry, 605 F.2d 144 (5th Cir.1979). Such restrictions are narrowly drawn to protect the public from a situation that might lead to a repetition of the same crime."
"In this case, the trial court has not restricted Terrigno's right to speak, it has merely forbidden her to receive money for speaking about her crime during the five-year term of her probation. The trial court simply wanted to assure that Terrigno would not profit from her crime by exploiting her story in the media. The court's concern with this possibility is reasonable in that there had already been considerable media interest in the trial because of Terrigno's prominence as a lesbian and as the first mayor of West Hollywood." [Emphasis added.]
It is the defendant's contention that the supervised release condition in question herein is being unreasonably interpreted and inappropriately applied by the probation department contrary to the court's intentions and contrary to case law authority relevant to the issues raised herein. In either event, this court has the jurisdiction to modify, reduce, or enlarge the conditions of supervised release herein. [18 U.S.C. § 3583(e)(2).]
Conflicts often arise between an offender's First Amendment rights and the discretionary conditions a court may impose on supervised release. Restrictions on freedom of speech must be narrowly construed to protect against an unreasonable abrogation of such a fundamental and "preferred right" and must be designed to rehabilitate the supervised releasee and protect the public. [United States v. Peete (6th Cir. 1990) 919 Fed.2d 1168, 1181.]
Conditions prohibiting general discussion of lawful topics are likely to be found unreasonable. For example, a probation condition banning expression of opinion as to the validity or constitutionality of tax laws was held invalid. [Porth, supra, at 334.] The Ninth Circuit, in dicta, also indicated that "it is unlikely that probation can be conditioned on the probationer refraining from communicating his views on the probation system or receiving and reading certain periodicals which are otherwise lawfully available." [Consuelo-Gonzalez, supra, 264.]
COMMENTS AND PROCEEDINGS During the Sentencing Hearings
During the pendency of the proceeding before this Honorable Court prior to the sentencing hearings in 1997 and 1999, this Honorable Court and the government's attorneys made comments on issues relevant to the application herein.
It appears to counsel herein from the following quotations that the court was primarily concerned with Mr. Mitnick not returning to "hacking", inter alia.
I. JUNE 27, 1997 SENTENCING TRANSCRIPT
A. At page 6, lines 21-22:
"THE COURT: MR. MITNICK HAS INDULGED OR HAS ENGAGED IN HACKING, AND WE DON'T WANT HIM TO HACK AGAIN."
B. At page 9, lines 13-19:
"THE COURT: . . I WANT TO DO SOMETHING WHICH IS REASONABLE AND WILL NOT INFRINGE ON HIS RIGHTS BUT WILL ALSO PROTECT THE PUBLIC.
. . . BUT I CAN TELL YOU THE INTENT IS TO BE FAIR TO YOUR CLIENT AND ALSO PROTECT THE COMMUNITY AGAINST HACKING."
C. At page 10, lines 10-20:
"THE COURT: IF MR. MITNICK IS NOT DOING ANYTHING WRONG, HE WILL NOT HAVE TO COME IN THE COURTROOM, BECAUSE THE SUPERVISOR IS NOT GOING TO REPORT TO THE COURT THAT HE HAS VIOLATED THE CONDITIONS OF SUPERVISED RELEASE. THIS IS NOT, YOU KNOW, A CONTRACT OVER A PATENT. WHAT WE ARE TALKING ABOUT IS SOMETHING THAT WILL BE SUFFICIENTLY INCLUSIVE SO WE DON'T HAVE THIS HAPPEN AGAIN.
MR. RANDOLPH: WELL --
THE COURT: ON THE OTHER HAND, IF HE IS NOT DOING ANYTHING WRONG, THEN THE PROBATION OFFICER IS NOT GOING TO HAVE ANY REASON TO REPORT HIM TO THE COURT."
D. At page 11, line 25 to page 12, line 2:
"THE COURT: NOW ALL I SAY TO YOU, MR. MITNICK, IS DON'T ENGAGE IN [CRIMINAL CONDUCT, HACKING] ANYMORE AND WE WON'T HAVE ANY REASON TO GET TOGETHER NO MATTER WHAT THE CONDITIONS SAY." [Parenthetical phrase added.]
E. At page 15, lines 15-22:
"THE COURT: OH, YES, IT WILL, BECAUSE THE COURT IS THE ULTIMATE DECISION-MAKER HERE, AND HE IS NOT GOING TO BE FOUND IN VIOLATION OF SUPERVISED RELEASE IF HE IS NOT DOING ANYTHING WRONG.
WHAT REASON WOULD THE COURT HAVE TO BE EXTREMELY TECHNICAL ABOUT IT?
NO REASON WHATSOEVER. THERE IS NO DESIRE TO BE PUNITIVE TOWARD HIM."
II. JULY 12, 1999 SENTENCING TRANSCRIPT
A. At page 27, lines 3-17:
"MR. PAINTER: . . . ONE OF THEM IS IN THIS ROOM WHO IS NOW ACTING AS A REPORTER WHO IS REPORTING ON COMPUTER CRIME ISSUES, AND CERTAINLY THAT IS A POSITION THAT COULD EARN [MITNICK] MONEY AND COULD EARN [MITNICK] SUBSTANTIAL AMOUNTS OF MONEY."
[Parenthetical phrases added.]
B. At page 28, lines 1-3:
"MR. PAINTER: . . . ANY OTHER POSITION - - AND YOU WILL NOTE THE ASSIGNMENT AGREEMENT EXCLUDES, FOR INSTANCE, CONSULTING. IT EXCLUDES ANY EMPLOYMENT NOT RELATED TO HIS CRIMINAL CONDUCT." [Emphasis added.]
III. JULY 13, 1999 LOS ANGELES DAILY NEWS
By: Phillip W. Browne, Staff Writer
"ASSISTANT U.S. ATTORNEY CHRISTOPHER PAINTER SAID . . . HE [MITNICK] COULD MAKE MONEY SELLING HIS STORY," PAINTER SAID, ADDING HE [MITNICK] ALSO COULD BECOME A COMPUTER JOURNALIST. HE POINTED OUT THAT CONVICTED COMPUTER HACKER KEVIN POULSON, WHO WAS IN THE COURTROOM COVERING THE HEARING, NOW WORKS AS AN INTERNET JOURNALIST. THERE ARE POSSIBILITIES FOR HIM [MITNICK]," PAINTER SAID."
[Parenthetical phrases and emphasis added.]
We respectfully submit that the Probation Department’s interpretation appears to be extremely overbroad and may constitute an unreasonable "prior restraint". Mr. Mitnick’s speaking and writing involve his expression of his ideas, thoughts, advice and opinions on how organizations and individuals can better protect themselves from fraud and prevent computer-related intrusions.
Such positive activities significantly contribute to the benefit of society and channel Mr. Mitnick’s creative energies in a positive and law-abiding direction.
SENTENCING GUIDELINES
Pursuant to the United States Sentencing Guidelines, Section 5F1.5 provides that occupational restrictions may be imposed only "to the minimum extent necessary to protect the public," as follows:
/ / / /
"§ 5F1.5. Occupational Restrictions
(a) The court may impose a condition of probation ... prohibiting the defendant from engaging in a specified occupation, business, or profession, or limiting the terms on which the defendant may do so, only if it determines that:
(1) a reasonably direct relationship existed between the defendant's occupation, business, or profession and the conduct relevant to the offense of conviction; and
(2) imposition of such a restriction is reasonably necessary to protect the public because there is reason to believe that, absent such a restriction, the defendant will continue to engage in unlawful conduct similar to that for which the defendant was convicted.
(b) If the court decides to impose a condition of probation ... restricting a defendant's engagement in a specified occupation, business, or profession, the court shall impose the condition for the minimum time and to the minimum extent necessary to protect the public."
The Senate Judiciary Committee Report on the Comprehensive Crime Control Act explains that the provision was "intended to be used to preclude the continuation or repetition of illegal activities while avoiding a bar from employment that exceeds that needed to achieve that result." [S.Rep. No. 225, 98th Cong., 1st Sess. 96-97.] The condition "should only be used as reasonably necessary to protect the public. It should not be used as a means of punishing the convicted person." Id. at 96, Section 5F1.5 accordingly limits the use of the condition and, if imposed, limits its scope to the minimum reasonably necessary to protect the public. [See United States v. Mills (5th Cir. 1992) 959 Fed.2d 516.]
This Court’s primary concern is to protect the public from any further criminal activity [to wit, hacking]. [Please see the Court's comments referred to on pages 15 to 17, above.]
CONCLUSION:
For the reasons, authorities and contentions cited above, Mr. Mitnick respectfully requests that this court clarify the terms and conditions of his supervised release for the benefit of the probation department's supervision so that Mr. Mitnick can pursue gainful employment and state his expressions of opinion regarding the topics of computer security and information technology to governmental, public and private sector entities. It is Mr. Mitnick's desire and intention to do good for the community and constructively participate in his appropriate rehabilitation.
To reiterate, Mr. Mitnick would like to express his opinion, advise and/or consult as a media journalist, technology journalist, information security consultant, public speaker or commentator in a manner that would help and assist the government, public and private sector entities about [a] how to prepare for and/or detect computer/data security violations and [b] how to remedy and avoid same in the present and the future.
Dated: June 2, 2000 Respectfully submitted,
SHERMAN M. ELLISON
Attorney for Defendant
KEVIN DAVID MITNICK
PROOF OF SERVICE
STATE OF CALIFORNIA )
) ss.
COUNTY OF LOS ANGELES )
I am employed in the County of Los Angeles, State of California. I am over the age of eighteen and not a party to the within action. My business address is 15760 Ventura Boulevard, 7th Floor, Encino, California 91436.
On June 2, 2000 I served the foregoing document described as NOTICE OF APPLICATION; AND, APPLICATION FOR CLARIFICATION OF SUPERVISED RELEASE TERMS AND CONDITIONS; DECLARATION OF COUNSEL; AND EXHIBITS [18 U.S.C. § 3583; FRCrP, RULE § 32.1(b), Inter alia] , by [X] personal service and/or [X] U.S. Mail, first class postage prepaid, on the interested parties in this action listed below:
MANNY ABASCAL, ESQ. [Messenger]
Assistant United States Attorney
Office of the United States Attorney
Federal Building, 13th Floor
300 North Los Angeles Street
Los Angeles, CA 90012
LARRY HAWLEY [U.S. Mail]
U.S. Probation Officer
Suite 241
5500 Telegraph Road
Ventura, CA 93003
DONALD C. RANDOLPH, ESQ. [U.S. Mail]
1717 Fourth Street, 3rd Floor
Santa Monica, CA 90401
I declare under penalty of perjury that the foregoing is true and correct. Executed on June 2, 2000, at Los Angeles, California.
SHERMAN M. ELLISON