IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, ) No.
) DC# CR-96-881-MRP
Plaintiff-Appellee, )
)
vs. ) EMERGENCY MOTION UNDER
) CIRCUIT RULE 27-3
KEVIN DAVID MITNICK, )
)
Defendant-Appellant )
___________________________________)
DONALD C. RANDOLPH
RANDOLPH & LEVANAS
1717 Fourth Street, Third Floor
Santa Monica, California 90401
Telephone: 310/395-7900
Defendant-Appellant
KEVIN DAVID MITNICK
CIRCUIT RULE 27-3 CERTIFICATE
Counsel for Appeellant
Donald C. Randolph
1717 Fourth Street, Third Floor
Santa Monica, CA 90401
Telephone: (310)395-7900
Counsel for Appellee
Mr. Christopher Painter
Mr. David Schindler
Assistant United States Attorneys
1100 U.S. Courthouse
312 N. Spring Street
Los Angeles, CA 90012
I.
FACTS SHOWING EXISTENCE AND NATURE OF EMERGENCY
On August 9, 1999, Kevin David Mitnick was sentenced to a term of 46
months in the matter of United States v. Kevin David Mitnick, CR
96-881-MRP, before the U.S. District Court for the Central District of
California. According to his religious beliefs, Mr. Mitnick eats only
kosher foods which are prepared in accordance with kashruth, Orthodox
Jewish dietary law. Followers of this religious doctrine may only eat
certain types of foods, prepared in a certain manner. Kosher food must
remain physically separate from non-kosher food, as must utensils and
plates. Disposable utensils may be used in accordance with kosher
requirements.
On August 11, 1999, Mr. Mitnick was transferred to the San Bernardino
Central Detention Center ("CDC") by the U.S. Marshal Service. This
institution is a county contract facility which houses some federal
inmates pending designation by the Bureau of Prisons ("BOP").
The San Bernardino CDC does not serve kosher foods. San Bernardino CDC
offers a choice of standard or vegetarian meals only. The vegetarian
meals are not considered kosher due to the fact that they are prepared in
the same kitchen, with the same utensils as all non-kosher food.
On August 16, 1999 defendant Kevin David Mitnick filed an Ex Parte
Application with the district court seeking an order to be transferred to
the Metropolitan Detention Center, Los Angeles, or to some other federal
facility which serves kosher food to its inmates.
On August 19, 1999, the defense received a copy of the district court's
order dated August 17, 1999 which denied Mr. Mitnick's Ex Parte
Application.
On August 20, 1999 counsel for Mr. Mitnick contacted Assistant U.S.
Attorney Christopher Painter to notify him of this action. Mr. Painter
was served a copy of this Emergency Motion by fax and U.S. mail.
I.
INTRODUCTION
Mr. Kevin Mitnick is being detained under conditions which violate his
First Amendment rights to free exercise of religion. This Court should
remedy this immediate and continuing violation of Mr. Mitnick's rights by
ordering that he be temporarily transferred to a federal facility which
provides kosher meals in accordance with his religious beliefs.
II.
STATEMENT OF FACTS
On August 9, 1999, Mr. Mitnick was sentenced to a term of 46
months in the matter of United States v. Kevin David Mitnick, CR
96-881-MRP, before the U.S. District Court for the Central District of
California. According to his religious beliefs, Mr. Mitnick eats only
kosher foods which are prepared in accordance with kashruth, Orthodox
Jewish dietary law. Followers of this religious doctrine may only eat
certain types of foods, prepared in a certain manner. Kosher food must
remain physically separate from non-kosher food, as must utensils and
plates. Disposable utensils may be used in accordance with kosher
requirements.
On August 11, 1999, Mr. Mitnick was transferred to the San Bernardino
Central Detention Center ("CDC") by the U.S. Marshal Service. This
institution is a county contract facility which houses some federal
inmates pending designation by the Bureau of Prisons ("BOP").
The San Bernardino CDC does not serve kosher foods. See, Declaration of
Donald C. Randolph. San Bernardino CDC offers a choice of standard or
vegetarian meals only. The vegetarian meals are not considered kosher due
to the fact that they are prepared in the same kitchen, with the same
utensils as all non-kosher food.
On August 16, defendant Kevin David Mitnick filed an Ex Parte Application
with the district court seeking an order to be transferred to the
Metropolitan Detention Center, Los Angeles, or to some other federal
facility which serves kosher food to its inmates.
On August 19, 1999, the defense received a copy of the district court's
order dated August 17, 1999 which denied Mr. Mitnick's Ex Parte
Application.
III.
ARGUMENT
This Circuit recognizes that "[i]nmates . . . have the right to be
provided with food sufficient to sustain them in good health that
satisfies the dietary laws of their religion." Ashelman v. Wawrzaszek,
111 F.3d 674, 677 (9th Cir. 1997), citing, McElyea v. Babbitt, 833 F.2d
196 (9th Cir. 1987). Nonetheless, prison regulations which infringe upon
the free exercise of religion may be permissible where there is no
reasonable alternative to such regulations. Ashelman, at 677, ("the
absence of ready alternatives is evidence of the reasonableness of a
prison regulation"), (internal citations omitted).
Significantly, in both Ashelman and McElvea, the petitioners sought to
modify prison operations in order to accommodate their religious beliefs
and practices. Mr. Mitnick does not ask this Court to issue an order
modifying the internal operations of the San Bernardino CDC, or any other
prison. Rather, he merely requests that he be temporarily transferred to
one of the numerous federal correctional institutions in this region which
already provide kosher food services to their inmates pending his
designation by the Bureau of Prisons to a permanent facility.1
In the alternative, Mr. Mitnick requests that he be immediately designated
by the Bureau of Prisons and transferred to that facility in order to
serve the remainder of his sentence. These entirely reasonable
alternatives to housing Mr. Mitnick at the San Bernardino CDC are readily
available at little expense.
DATED: August 20, 1999 Respectfully submitted,
RANDOLPH & LEVANAS
By: ____________________________
Donald C. Randolph
Attorneys for Defendant
KEVIN DAVID MITNICK
DECLARATION OF DONALD C. RANDOLPH
I, Donald C. Randolph, declare as follows,
1. I am an attorney at law, a member in good standing of the Bar of this
Court and all the courts of California, and appointed counsel of record
for inmate Kevin David Mitnick in the above-entitled matter.
2. On August 11, 1999, Mr. Mitnick was transferred from the Metropolitan
Detention Center ("MDC") to the San Bernardino Central Detention Center
("SBCDC"), a contract facility operated by the County of San Bernardino,
where he is to be housed pending designation.
3. Based upon my experience, the designation process ordinarily takes
between 30-45 days.
4. On August 12, 1999, Mr. Mitnick advised our office that the SBCDC did
not have a kosher diet available, therefore, he was unable to eat without
violating the tenets of his religious beliefs.
5. On August 13, 1999, I personally spoke with Rabbi Hillel Cohn who is
the rabbi with responsibility for inmates at the San Bernardino CDC.
Rabbi Cohn confirmed that that facility does not offer kosher meals. He
is aware of instances in which federal detainees of the Jewish faith have
been transferred from the facility because of this problem.
6. On Aug 13, 1999 I spoke with Rabbi Aaron Kriegel who oversees the
Jewish inmates at the MDC. Rabbi Kriegel confirmed that the MDC does
comply with rabbinical standards and offers kosher meals to Jewish
inmates. He further confirmed that San Bernardino CDC does not offer
kosher food. Rabbi Kriegal stated that even a vegetarian plate at San
Bernardino CDC does not comply with rabbinical standards for kosher food
in that the vegetables are prepared in the central kitchen and at the same
time as all non-kosher foods for the general inmate population.
7. I am informed and believe that most, if not all federal institutions
offer kosher meals. However, as a county facility contracted to house
federal detainees, the San Bernardino CDC does not offer kosher meals.
8. Mr. Mitnick is a member of the Jewish faith, and has been an active
participant in the practice of that faith while housed at the MDC. In
compliance with his religious beliefs, Mr. Mitnick has maintained a kosher
diet during his detention at the MDC. By virtue of his abrupt transfer
and placement at San Bernardino CDC, he is unable to eat in accordance
with his religious beliefs.
9. On August 20, 1999, at approximately 12:20 p.m., I contacted Assistant
U.S. Attorney Christopher Painter to inform him that my office would be
filing this Emergency Motion today. Also on this date, I faxed a copy of
this motion to Mr. Painter.
I declare under penalty of perjury that the foregoing is true and correct.
Executed this 20th day of August, 1999, at Santa Monica, California.
_______________________
Donald C. Randolph
/1 All correctional facilities operated by the Bureau of Prisons provide
kosher meals to those inmates who request them. Furthermore, federal
facilities offer kosher foods for sale in the commissary, such as canned
fish and vegetables, to supplement standard meal service.
8