DONALD C. RANDOLPH, ESQ., California State Bar Number 62468
RANDOLPH & LEVANAS
1717 Fourth Street, Third Floor
Santa Monica, California 90401
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, ) EX PARTE APPLICATION TO
vs. ) UNSEAL DEFENSE REQUEST FOR
) SANCTIONS AND PLEADINGS
KEVIN DAVID MITNICK, et. al, ) RELATING TO RESTITUTION;
) DECLARATION OF GREGORY L.
Defendants. ) VINSON
)
) DATE: July 26, 1999
) TIME: 1:00 p.m.
_____________________________ ) CTRM: 12
Defendant Kevin Mitnick, by and through his attorney of record,
Donald C. Randolph, hereby brings this ex parte application to
unseal the Defense Request for Sanctions for Government
Misconduct, filed concurrently with this application, and to
unseal previously filed pleadings relating to restitution.
Good cause for this applications exists as follows:
On July 13, 1999, one day after the last appearance in this
matter, the defense received a response to a subpoena it had
previously issued upon victim company Sun Microsystems. The
documents contained therein included e-mail correspondence written
by government agent Kathleen Carson Antona which were addressed
directly to the various victim companies as well as internal
memoranda between Sun employees regarding communications with the
government relevant to the amount of loss allegedly caused by Mr.
Mitnick's conduct.
These recently received documents from Sun Microsystems clearly
establish that the loss and restitution amounts claimed by the
government throughout the course of this litigation were
purposefully and artificially inflated in order to advance
illegitimate government interests.
On July 22, 1999, counsel for the defense spoke with Ms. Julie
Hofmann, Esq. a representative of Sun Microsystems. Ms. Hofmann
stated that the documents produced by her company pursuant to the
defense subpoena did not include any confidential, proprietary,
trade secret, or other privileged information of any kind.
This application is based upon the files and pleadings of this
case, the attached memorandum of points and authorities, and the
attached declaration of Gregory L. Vinson.
The government is opposed to this application.
DATED: July 22, 1999 Respectfully submitted,
RANDOLPH & LEVANAS
By: __________________________
Donald C. Randolph
Attorneys for Defendant
KEVIN DAVID MITNICK
MEMORANDUM OF POINTS AND AUTHORITIES
I.
INTRODUCTION
The government has repeatedly sought to suppress the facts of this
case from public scrutiny on the bogus claim that information
relevant to the issue of restitution is somehow confidential and
deserving of a protective order. The government recently obtained
a Court Order sealing all pleadings on the issue of restitution,
regardless of whether they contained any confidential information
or not. Based upon the newly received documents from Sun
Microsystems, this Court should no longer authorize the
withholding of government misconduct from the public particularly
where, as here, the victim company claims no need for
confidentiality.
II.
STATEMENT OF FACTS
Beginning as far back as September 30, 1996, the defense requested
evidence relevant to the alleged amount of loss caused by Mr.
Mitnick's conduct in this case. For strategic reasons, the
government refused to disclose such evidence prior to sentencing
proceedings.1
Following the entry of Mr. Mitnick's plea, the government sought
to bury the outlandish loss figures it solicited from the victims
by conditioning their disclosure upon the defendant's willingness
to maintain the information in secrecy. Upon the defendant's
refusal to enter a code of silence in order to receive this
evidence to which he was legally entitled, the government
petitioned the Court for a protective order claiming that this
evidence contained "proprietary and confidential data." )See,
Government's Ex Parte Application to File Sentencing Pleadings
Under Seal).
On July 13, 1999, the defense received documents from Sun
Microsystems in response to a previously issued subpoena. These
documents were filed concurrently with this ex parte application
as an exhibit to the Defense Request for Sanctions for Government
Misconduct. Because of the Court's protective order, the defense
was required, over objection, to file this pleading and the
attached documents under seal.
III.
ARGUMENT
The newly obtained documents demonstrate that the so-called "loss"
figures are neither proprietary nor confidential in nature. This
is further evidenced by statements of victim representatives, and
the manner in which the government itself has treated these
materials. The media has recently criticized the government's
calculations of losses and restitution in this case; however, the
new evidence establishes that years ago, the government showed
virtually no interest in maintaining so-called victim loss
information in confidence. This is evidenced by the fact that the
FBI shared this very information between the victim companies of
this case.
For example, internal e-mail communications between Sun
Microsystems employees demonstrates that the FBI disclosed
directly to Sun the value of losses which Motorola reportedly
suffered. Surely, if the government truly believed that this
information was somehow confidential or sensitive, it would not
have disclosed it to a potential competitor. In fact, the
information solicited by the government and provided by the victim
companies is not confidential so much as fictional. It is for
this reason that the government seeks to bury the truth through a
protective order.
The government has stated that a protective order is necessary in
order to protect the victim companies from further embarrassment
in this matter. To be sure, public revelation of the complicity
between the government and victim companies to overstate the value
of damages actually caused by Mr. Mitnick is embarrassing, and
rightfully so. However, this wrongdoing should no more be covered
up than should Mr. Mitnick's own errant conduct.
The defense has requested the presence of FBI agent Kathleen
Carson Antona at the July 26, 1999 hearing in this matter.
Assistant United States Attorney Christopher Painter indicated
that the government would not cooperate in voluntarily securing
her presence at this hearing.
II.
CONCLUSION
For all the foregoing reasons, the defense respectfully requests
that this Court unseal all portions of the record of this case
relating to the issue of restitution. Should this Court find
that, despite the government's active distribution of so-called
confidential information between the victim companies, together
with its prior failure to take any reasonable steps to ensure
confidentiality of this material, there exist legitimate concerns
regarding the confidentiality of victim information, the Court
should refer this matter to a special master for the purpose of
determining, item by item, the propriety of any protective order.
DATED: July 22, 1999 Respectfully submitted,
RANDOLPH & LEVANAS
By: __________________________
Donald C. Randolph
Attorneys for Defendant
KEVIN DAVID MITNICK
DECLARATION OF GREGORY L. VINSON
I, Gregory L. Vinson, declare as follows,
1. I am an attorney at law, a member in good standing of the Bar
of this Court, and an associate in the law firm Randolph &
Levanas, counsel of record for defendant Kevin David Mitnick in
the above-captioned case.
2. On July 22, 1999, I spoke with Ms. Julie Hofmann, Esq. a
representative of Sun Microsystems. Ms. Hofmann stated that the
documents produced by her company pursuant to the defense subpoena
did not include any confidential, proprietary, trade secret, or
other privileged information of any kind.
3. Later, on July 22, 1999, Ms. Julie Hofmann called my office and
informed me that after conferring with a colleague, she could
confirm that Sun did not seek to protect the information provided
to the defense on the basis of any claim of confidentiality or any
property interest.
4. On July 21, 1999, I spoke with Assistant United States Attorney
Christopher Painter who indicated that the government would not
cooperate to voluntarily ensure FBI agent Kathleen Carson Antona's
presence at the hearing scheduled for July 26, 1999.
1.
5. Also on July 21, 1999, I left a message on Ms. Kathleen Carson
Antona's voicemail at her work number advising her that the
defense sought her presence at the July 26, 1999 hearing in this
matter. I informed Ms. Carson that the defense would prefer not
to subpoena her for this purpose and I requested that she contact
me to discuss this matter further. As of this time, Ms. Antona
had not responded to this request.
6. On July 22, 1999 I spoke with Assistant United States Attorney
Christopher Painter who advised me that he was opposed to this
application.
I swear under penalty of perjury that the foregoing is true and
correct.
Executed this 22nd day of July, 1999, at Santa Monica, California.
____________________________
Gregory L. Vinson
1On a single occasion during plea negotiations, the government
allowed defense counsel to review various letters prepared by the
victim companies which purportedly evidenced losses totaling
hundreds of millions of dollars. As evidenced in the Defense
Request for Sanctions for Government Misconduct, the materially
misleading information contained in these letters was contrived
by the government specifically for the purpose of obtaining
prosecutorial advantage.
2