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
)
) SUPPLEMENTAL MEMORANDUM RE:
) PETITION FOR RECONSIDERATION;
Plaintiff, ) [PROPOSED] ORDER
)
vs. )
)
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, Donald
C. Randolph, hereby files this Supplemental Memorandum Re: Petition
for Reconsideration or, Alternatively, for Permission to Appeal. This
supplemental memorandum seeks to clarify points of law applicable only
to the defendant's request for permission to appeal this matter should
the Court decline to grant the relief sought in the defendant's
Petition for Reconsideration.
After further investigation, the defense has concluded that the
provisions of Rule 5 Fed.R.App.Proc. concerning permissive appeals
which were cited in its previous petition do not apply in the criminal
context. Nonetheless, should the Court deny the defendant's petition
for reconsideration of its order, an immediate appeal of this matter
would be appropriate pursuant to the collateral order doctrine.
United States v. Yellow Freight System, Inc., 637 F.2d 1248 (9th Cir.
1980). As applied to criminal pretrial orders, this doctrine confers
appellate jurisdiction as of right when:
1. The pretrial order fully disposed of the
appellant's claim of right;
2. The appellant's claim is collateral to and
separable from, the principal issue of guilt or
innocence (in this case, the defendant's right to
be free from penalties due to exercise of
privilege against self-incrimination and his right
to a fair trial); and
3. The order involves an important right that would
be lost if review had to await final judgment.
637 F.2d at 1250-1251.
Accordingly, the proposed order accompanying the defendant's
Petition for Reconsideration or, in the alternative, permission to
appeal reflects the appropriate considerations mentioned herein.
DATED: June 17, 1998 Respectfully submitted,
RANDOLPH & LEVANAS
By: _________________________
Donald C. Randolph
Attorneys for Defendant
KEVIN DAVID MINTICK
[PROPOSED] ORDER
The defendant's Petition and Supplement thereto having been duly
considered, and good cause having been found,
IT IS HEREBY ORDERED:
1. That the parties shall propose an order whereby the defense
shall be provided with a copy of all encrypted discovery in the
government's possession subject to the conditions of an appropriate
non-disclosure agreement.
DATED: _________________ _____________________________
Honorable Mariana R. Pfaelzer
United States District Judge
ALTERNATIVELY, THIS COURT FINDS:
1. That its Order denying the defendant access to encrypted
discovery, unless the defendant decrypts the evidence, is final;
2. That the issue of the defendant's right to the encrypted
discovery is collateral to the principal issue of guilt or innocence;
and
3. The issue involves important rights which would be lost if
review had to await final judgment.
DATED: _________________ _____________________________
Honorable Mariana R. Pfaelzer
United States District Judge