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
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, ) NOTICE OF MOTION AND MOTION
) TO CONTINUE TRIAL DATE;
v. ) DECLARATION OF DONALD C. RANDOLPH
)
KEVIN DAVID MITNICK, et. al, )
) DATE: November 30, 1998
Defendants. ) TIME: 1:30 p.m.
) COURT: 12
)
)
)
)
________________________________)
TO NORA M. MANELLA, UNITED STATES ATTORNEY, AND TO HER ASSISTANT,
CHRIS PAINTER:
PLEASE TAKE NOTICE that on November 30, 1998, at 1:30 p.m.,
defendant, KEVIN DAVID MITNICK, by and through his attorney of record,
Donald C. Randolph, will move this Court for and order continuing the
trial date in this case, currently scheduled for January 19, 1999,
until April 13, 1999, or another date convenient to both the Court and
counsel. /1
--------------
/1 Due to the proximity of the trial date in this matter, the
defendant has concurrently submitted an Ex Parte Application for an
(2)
Co-defendant Lewis DePayne, by and through his attorney Richard
Sherman, takes no position with respect to this motion.
This motion is based upon the attached memorandum of points and
authorities, the attached declaration of Donald C. Randolph, and any
oral and documentary evidence which may be presented at hearing on
this matter.
DATED: November 24, 1998 Respectfully submitted,
RANDOLPH & LEVANAS
By: ______________________________
Donald C. Randolph
Attorneys for Defendant
KEVIN DAVID MITNICK
-------------------------
Order Shortening Time in which to hear this motion as well as the
Defendant's Motion for Discovery.
(3)
I.
MEMORANDUM OF POINTS AND AUTHORITIES
A. Introduction
The government is delinquent in complying with its discovery
obligations as set forth by this Court in its Omnibus Order Re:
Discovery and Pretrial Management dated June 3, 1998. As a result of
this delinquency, the defense is unable to competently meet the
pretrial motion deadline of December 5, 1998, or the trial date
currently set for January 19, 1999. The defense requests a reasonable
continuance in the trial of this matter, and an order that the
government timely comply with its discovery obligations as previously
ordered by this Court. /2
B. The Government is in Continuing Violation of the Court's
Order Regarding the Production of Discovery to the Defense.
1. Witness Statements
On June 3, 1998, this Court signed an Omnibus Order Re: Discovery
and Pretrial Management. Pursuant to this Order, the government was
required to provide to the defendants copies of witness statements of
any witness the government intends to call during its case-in-chief
ninety (90) days prior to trial. [ Exhibit A, Omnibus Order Re:
Discovery and Pretrial Management]. Using the current trial date of
January 19, 1999, the government was obligated to provide this
evidence to the defense on or before October 21, 1998. Nonetheless,
this evidence was not made available to the defense until November 17,
--------------------
Details relating to the government's failure to abide by its
discovery obligations are more fully set forth in Defendant's Motion
for Discovery, filed concurrently with this motion.
(4)
1998, some sixty-three (63) days prior to trial, and nearly a full
month after it was scheduled to be produced. /3 Due to the government's
delay, the defense is unable to conduct its investigation, and prepare
for trial within the time limits currently prescribed.
Additionally, the defense is unable to comply with the Court's
reciprocal discovery requirements absent a continuance of the trial
date. For example, the Court's Order directs that the defendants
shall make available to the government copies of all witness
statements of any witness defendants intend to call at trial sixty
(60) days prior to trial. Given that the government's initial
production of this evidence occurred only three days prior to this
deadline, the defendants' reciprocal obligations are impossible to
fulfill.
2. Electronic Discovery
The government has failed to provide the defense with complete
and accurate copies of the electronic discovery within its possession
as ordered by the Court in its Omnibus Order of June 3, 1998.
Pursuant to this Order, the government was obligated to immediately
provide to the defense "electronic copies of all electronically stored
files ("the electronic discovery"), except encrypted files that the
---------------------------
/3 Anticipating the lengthy investigations which would have to
follow disclosure of the government's witness statements, the
defendant requested that this evidence be disclosed immediately as far
back as May 14, 1998, and in no case later 120 days prior to trial.
See Exhibit B, Defendant Mitnick's Opposition to Government's Proposed
Omnibus Order Re: Discovery and Pretrial Management.
/4 A description of the investigation necessitated by the witness'
statements will be submitted to the Court under separate cover for
review in camera.
(5)
government has not decrypted." /5 As fully detailed in the defendant's
motion for discovery, filed concurrently with this motion, the
government has only partially complied with the Court's June 3, 1998
Order. Moreover, significant electronic discovery exists for which
the defense has been provided no access whatsoever. Finally, those
copies which have been provided to the defense omit significant data
and files, apart from the encrypted files not subject to the Court's
Order, in comparison to the versions held by the government.
Due to the government's significant delay in producing discovery
as ordered by this Court, and due to its continuing failure to produce
certain discoverable evidence altogether, the defense cannot
competently complete its investigations and prepare for trial in this
matter absent a reasonable continuance in the trial date.
II.
CONCLUSION
For all the foregoing reasons, the defendant respectfully
requests that the Court continue the trial date from January 19, 1999
until April 13, 1999.
DATED: November 24, 1998 Respectfully submitted,
RANDOLPH & LEVANAS
By: _____________________________
Donald C. Randolph
Attorneys for Defendant
KEVIN DAVID MITNICK
--------------------
/5 The government's obligations to this effect were subject to the
restrictions of a protective order described in paragraph 2 of the
Court's Order.
(6)
DECLARATION OF DONALD C. RANDOLPH
I, DONALD C. RANDOLPH, do declare as follows:
1. I am an attorney at law, a member in good standing of the
bar of this Court, and appointed counsel of record for defendant Kevin
David Mitnick in the above-entitled case.
2. Despite the exercise of diligence, given the government's
failure to meet the Court's discovery Order, I believe that it is
impossible for the defense to be prepared for trial as of the
currently scheduled date of January 19, 1999.
3. To date, the government has not fully complied with the
Court's June 3, 1998 discovery mandate. Moreover, the government has
altered that discovery which has been provided to the defense and, in
the course doing so, has withheld certain data from the copies
provided to the defense apart from the encrypted files they are
entitled to withhold pursuant to the Court's Order.
4. Absent a reasonable continuance, I will be unable to
complete necessary investigations and competently prepare for trial in
this matter by the currently scheduled trial date.
I declare under penalty of perjury the above is true and correct.
Executed this 24th day of November, 1998, in Santa Monica,
California.
________________________
DONALD C. RANDOLPH