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
Attorney for Defendant
KEVIN DAVID MITNICK
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
UNITED STATES OF AMERICA, ) CASE NO. 96-881-MRP
)
) PETITION FOR RECONSIDERATION
) OR, ALTERNATIVELY, FOR
Plaintiff, ) PERMISSION TO APPEAL
)
vs. ) [NO HEARING REQUESTED]
)
KEVIN DAVID MITNICK, )
)
)
Defendant. )
______________________________)
TO THE UNITED STATES OF AMERICA AND TO THEIR ATTORNEYS OF RECORD HEREIN:
Defendant, KEVIN DAVID MITNICK, by and through his attorney of
record, Donald C. Randolph, hereby petitions this Court reconsider its
Order denying the defendant access to encrypted evidence in the
government's exclusive possession or, in the alternative, for permission
to appeal its order denying the defendant disclosure of discoverable
evidence.
This petition is brought pursuant to Rule 5 Federal Rules of
Appellate Procedure.
DATED: June 15, 1998 Respectfully submitted,
RANDOLPH & LEVANAS
By: ________________________
Donald C. Randolph
Attorneys for Defendant
KEVIN DAVID MITNICK
I.
STATEMENT OF FACTS
In September, 1992, at Los Angeles, California and October, 1994,
in Seattle, Washington, and in February, 1995, at Raliegh, North
Carolina, the government executed search and seizure warrants of
residences known or believed to be occupied by defendant Kevin David
Mitnick. Evidence in the form of electronically stored data was
seized during each of these searches.
On September 26, 1996, based in part upon the seized evidenced
referred to above, the government brought a twenty-five count
indictment against the defendant alleging various acts of possession
of unauthorized access devices: 18 U.S.C. § 1029; computer fraud: 18
U.S.C. § 1030(a)(4); causing damage to computers: 18 U.S.C. §
1030(a)(5); wire fraud: 18 U.S.C. § 1343; and interception of wire or
electronic communications: 18 U.S.C. § 2511.
On October 24, 1996, the defendant requested in writing, a copy
of all discoverable materials including all such evidence subject to
discovery pursuant to Rule 16 Federal Rules of Criminal Procedure, and
all exculpatory information pursuant to Brady v. Maryland, 373 U.S. 83
(1963) and its progeny.
Subsequently, the government produced to the defense copies of
discoverable documents other than those stored electronically. The
government maintained the electronically stored data at FBI offices
for review by the defense upon reasonable notice. The exception to
this were the encrypted files, which were not made available to the
defense.
On October 8, 1997, the government represented to the defense
that it believed it was in full compliance with its discovery
obligations.
On April 13, 1998, the government filed with the Court a proposed
Omnibus Order Re: Discovery and Pretrial Management in which it
proposed to allow the defense to duplicate any electronically stored
files except those which the government asserted contained: (a)
proprietary software taken from victims; (b) files containing "hacker
tools"; (c) files containing access codes obtained without
authorization; (d) encrypted files, unless the defendant first
provided the government with the decryption key.
On April 20, 1998, the defense requested in writing a full copy
of all electronically stored discovery.
On April 27, 1998, the government agreed to provide the defense
with a copy of the electronic discovery except for those files
containing data of the type described in paragraph 4 above.
On April 29, 1998 the government filed a new [Proposed] Omnibus
Order Re: Discovery and Pretrial Management incorporating revisions in
its position as of April 27, 1998.
On May 14, 1998, the defendant filed a formal objection to the
government's proposed order and again requested a full copy of all
electronic discovery in the government's possession. In its
objection, the defense stated its willingness to enter into a non-
disclosure agreement to protect all sensitive data, including trade
secret information, which might be contained within the electronic
discovery, whether encrypted or otherwise.
On May 18, 1998, the Court ordered the government to provide the
defense with a copy of all electronic discovery, except for the
encrypted evidence, subject to the defendant's willingness to sign a
non-disclosure agreement to protect the data in question.
Acknowledging that the issue before the Court was novel, the Court
maintained that the government had no duty to produce any encrypted
file which it had been unable to decrypt to the defense.
II.
STATEMENT OF THE ISSUES
(A) Whether the government may withhold from the defendant
evidence in its exclusive possession, and which falls squarely within
the definition of Fed.R.Crim.Pro. 16(a)(1)(C), on the grounds that it
is unintelligible to the government.
(B) Whether the government may withhold from the defendant
evidence in its exclusive possession, and which is potentially
exculpatory, on the grounds that it is unintelligible to the
government.
III.
STATEMENT OF REASONS IN SUPPORT OF PETITION
A. There Exists a Substantial Basis for a Difference
of Opinion on this Matter.
Questions regarding the application of existing law to novel
factual scenarios created by the advancement of technology occur
relatively frequently. This is such a case. Although there is no
legal precedent directly analogous to the issue currently before the
Court, there is substantial legal authority, based upon the
fundamental principles of the United States Constitution, which
supports the position advanced by the defendant.
Rule 16(a) of the Federal Rules of Criminal Procedure establishes
legal requirements regarding the governmental disclosure of evidence
to the defendant. Rule 16(a)(1)(C), relating to documents and
tangible things, provides:
"Upon request of the defendant the government shall permit
the defendant to inspect and copy or photograph books,
papers, documents, photographs, tangible objects, buildings
or places, or copies or portions thereof, which are within
the possession, custody or control of the government, and
which are material to the preparation of the defendant's
defense or are intended for use by the government as
evidence in chief at the trial, or were obtained from or
belong to the defendant."
The defendant has made numerous requests for the opportunity to
copy all of the evidence which falls within the ambit of this rule.
Much of the evidence in this case consists of electronically stored
documents and/or data stored on various computer systems. Although
the government has disclosed some of the evidence pursuant to its
statutory obligations, it has refused to permit the defendant to
either inspect of copy any portion of the "encrypted" evidence in its
possession due to the fact that this evidence is unintelligible to the
government. Nonetheless, the government has agreed to provide such
evidence to the defense on the condition that the defense first
provide the government with the encryption key necessary to decipher
the data in question. This position is unsanctioned by both Rule 16
and the United States Constitution
Requiring the defendant to waive his privilege against self-
incrimination in order to obtain evidence to which he is legally
entitled, constitutes a violation of the defendant's Fifth Amendment
rights. See, Malloy v. Hogan, 378 U.S. 1 (1964) (an option which
exacts a "penalty" upon the exercise of the privilege against self-
incrimination violates the Fifth Amendment); see also, Griffen v.
State of California, 380 U.S. 609 (1965); Spevack v. Klien, 385 U.S.
511 (1967) ("[i]n this context, 'penalty' is not restricted to fine or
imprisonment. It means, as we said in Griffin v. State of
California...the imposition of any sanction which makes the assertion
of the Fifth Amendment privilege 'costly'." Spevak v. Klien, 385 U.S.
at 515 [internal citations omitted].
In this case, the government does not contend that the evidence
in question is either irrelevant or immaterial to the case. As
evidenced in the Declaration of Gregory L. Vinson, filed in camera and
under seal concurrently with this petition, this evidence is
unquestionably material to the pending charges. Rather, the
government has recited concerns that the encrypted data may contain
confidential trade secret information which should not be disclosed to
the defense. This concern is illegitimate considering that the
defense has agreed to a non-disclosure agreement with respect to
confidential trade secret evidence which is not encrypted and for
which the government has recognized its duty to disclose. Naturally,
any confidential trade secret information found among the encrypted
computer files would likewise be subject to the non-disclosure and,
thereby, protected from the potential harm cited by the government.
While the government has an affirmative duty to reveal evidence
helpful to the defense, the defendant bears no reciprocal duty. Brady
v. Maryland, 373 U.S. 83 (1963); United States v. Wright, 489 F.2d
1181, 1192-1195 (D.C.Cir. 1973) (the Fifth Amendment requires that the
defense cannot be required to turn over evidence favorable to the
prosecution; in criminal cases, discovery must inevitably remain
basically a one-way street.)
B. An Immediate Appeal may Materially Advance the
Termination of the Litigation.
The resolution of the defendant's right to the evidence in
question will materially advance this matter in that it may
definitively resolve issues which will otherwise have to be argued
through the presentation of secondary sources or circumstantial
evidence. Moreover, immediate resolution of this issue will preclude
the possibility of having to litigate it following a conviction in
this matter. Should the defendant be convicted, government
withholding of exculpatory information would constitute clear grounds
for appeal and would likely induce the Court of Appeals to vacate any
finding of guilt.
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IV.
CONCLUSION
For all the foregoing reasons, this Court should reverse its
order denying the defendant access to the encrypted discovery or, in
the alternative, grant the defendant permission to appeal its order to
this effect.
DATED: June 15, 1998 Respectfully submitted,
RANDOLPH & LEVANAS
By: ___________________________
Donald C. Randolph
Attorneys for Defendant
Kevin David Mitnick