NORA M. MANELLA United States Attorney DAVID C. SCHEPER Assistant United States Attorney Chief, Criminal Division DAVID J. SCHINDLER (Bar No. 130490) Assistant United States Attorney Senior Litigation Counsel CHRISTOPHER M.E. PAINTER (Bar No. 154034) Assistant United States Attorney Major Fraud Section 1100 United States Courthouse 312 North Spring Street Los Angeles, CA 90012 (212) 894-0336/0358 Attorneys for Plaintiff UNITED STATES OF AMERICA UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA UNITED STATES OF AMERICA ) Case No. CR 96-881-MRP ) Plaintiff ) GOVERNMENT'S CONSOLIDATED ) OPPOSITION TO DEFENDANT v. ) MITNICK'S MOTION: (A) FOR ) DISCOVERY AND (B) TO CONTINUE KEVIN DAVID MITNICK ) THE TRIAL IN THIS MATTER; and LEWIS DE PAYNE ) MEMORANDUM OF POINTS ) AND AUTHORITIES; EXHIBITS Defendants ) ) DATE: December 2, 1998 ________________________________) TIME: 3:00 p.m. The United States of America by and through its undersigned counsel of record, hereby files a consolidated opposition to defendant Mitnick's motion: (a) for discovery; and (b) to the attached memorandum of points and authorities; the files and records in this matter, and upon such further evidence as may be presented at the expedited hearing on this matter. DATED: December ___, 1998. Respectfully submitted, NORA M. MANELLA United States Attorney DAVID C. SCHEPER Assistant United States Attorney Chief, Criminal Division __________________________________ DAVID J. SCHINDLER Assistant United States Attorney Senior Litigation Counsel CHRISTOPHER M.E. PAINTER Assistant United States Attorney Attorneys for Plaintiff UNITED STATES OF AMERICA 2 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION In two remarkably misleading filings, defendant Mitnick seeks to have the trial in this matter continued. Stripped of dubious accusations and accusatory rhetoric, the gist of Mitnick's motions is that: (a) the government has allegedly failed to produce all the discovery to which he is entitled; (b) the government produced witness statements late; and (c) he has recently uncovered "compelling evidence of outrageous government conduct" arising out of the former employment of Ronald Austin by Mitnick's former counsel and DePayne's current counsel, Richard Sherman. Mitnick's motions are remarkable in that they omit the following: (1) despite the fact that the government long ago produced virtually all of the electronic discovery and made arrangements for defendant Mitnick to review this evidence on a laptop at MDC, (see Omnibus Order, attached as Exhibit A, at pp 3-6), defendant Mitnick did not deliver the laptop to the government until November 30, 1998, after filing the instant motions; (2) counsel for Mitnick explicitly requested that the witness statements not be produced in accordance with the previously agreed to schedule; and (3) the fact that Ronald Austin had been employed by Richard Sherman -- unbeknownst to the government -- was first raised by the government in its July 1996 filing seeking to disqualify Mr. Sherman. Perhaps most troubling is Mitnick's omission of the fact that the parties had reached a settlement agreement, which led 3 the government to believe that there would not be a trial in this matter, only to have Mitnick once again back out of the agreement at the last minute, with no notice to the government. It is undisputed that the parties spent numerous hours (probably in excess of a hundred) reaching a settlement in this matter, and that the time devoted to reaching that plea agreement probably detracted from the time Mitnick's counsel spent reviewing the discovery in this matter. Indeed, it was because of the settlement agreement that Mitnick's counsel instructed government counsel not to produce the witness statements, so as not to complicate matters further. However, having instructed government counsel not to produce the witness statements, it is disingenuous for Mitnick to criticize the government for having complied with his wishes. Mitnick similarly seeks to manufacture a discovery dispute where none existed prior to the filing of these motions. The omnibus discovery order required the government to "make electronic copies of all electronically stored files, except encrypted files." (Omnibus Order, Exhibit A at 2, p 1). The government produced copies of virtually all such files to defendant Mitnick for his review including, most importantly, copies of all electronic files found on the laptops seized from defendant Mitnick in Seattle and North Carolina, back-up copies obtained from the Well, Netcom and Internex, and back-up copies ______________ /1 Indeed, the government only learned of Mitnick's latest withdrawal from the plea agreement via a telephone message from Mitnick's counsel on Monday, November 23, 1998, indicating that he intended to file the instant motions. 4 obtained from USC. The only other electronic evidence are wholly irrelevant back-up copies of CSN, obtained by Motorola pursuant to a civil seizure order Motorola obtained, which the government has consistently agreed to make available for review by defendants. Having failed to produce a laptop to the government until November 30, 1998, it is bad faith for defendant to claim that his review of the electronic evidence has somehow been stymied by the government. II. ARGUMENT A. The Government Has Substantially Complied With Its Obligation To Produce Copies Of The Electronic Evidence Mitnick makes two claims with respect to the electronic evidence. First, he complains that he did not receive all of the electronic evidence in a timely fashion. Second, he complains that the copies he received are somehow deficient because they did not contain any "deleted" files that may have once existed on the hard drive. While the government does not dispute that it made "rolling production" because of some technological glitches it encountered in duplicating the evidence for defendant, given defendant's failure to produce the laptop necessary to review this evidence until November 30, 1998, he clearly cannot demonstrate any prejudice arising out of the fact that some of the electronic files were not produced until October. _____________________ /2 As a convenience to defendant Mitnick, and to facilitate his review on the laptop, the government attempted to convert the electronic evidence obtained from USC into a different format. There were difficulties with this process, which caused some delays in the production of the USC tapes. 5 Defendant's alternative complaint -- that the copies he received are deficient -- is not well taken. The government was required to produce copies of all files and that is precisely what it did. The government was not required to produce copies of files that had been deleted or that were not readily apparent on the hard drive. By analogy, when making copies of paper documents, the government is not required to attempt to recover any material that had been erased on those documents. Indeed, such a requirement would make no sense. In short, the government complied with its obligations to produce copies of the electronic files. B. The Delay In Producing Witness Statements Was At Defendant's Request Defendant complains that the government did not produce witness statements 90 days prior to trial as required by the omnibus order. However, that delay was at counsel for Mitnick's explicit request. Specifically, counsel for Mitnick instructed the government not to produce witness statements in accordance with the schedule. At the time, the government understood that there would be a plea agreement in this matter, thus obviating the need for a trial and thus making timely production of the witness statements irrelevant. While the government perhaps should have anticipated Mitnick's eleventh hour withdrawal from the plea agreement, it is outrageous for defendant to criticize the government for complying with his request.
C. Any Conflict Arising Out Of Ronald Austin's Employment By Richard Sherman Has Been Known To Defendant For More Than Two Years And There Is Absolutely No Merit As To Defendant's Claim That The Government Somehow Acted Improperly After Learning Of That Relationship Defendant claims that he only discovered the relationship 6 between Ronald Austin and Richard Sherman after reviewing the witness statements. That claim is untenable, given that the government explicitly raised the issue in 1996 in connection with its motion to disqualify Richard Sherman. At that time, the government explicitly noted that Sherman had employed Austin and had conversations with Austin about Mitnick and the government. (Government's Motion to disqualify Richard Sherman, filed July 26, 1996, at 26, n 11). Separate and apart from the fact that the Austin/Sherman relationship was known to Mitnick long ago, it is clear that the government took pains not to intrude on any defense strategies and not to become privy to any attorney-client information that may have been passed from Sherman to Austin. As the July 18, 1996 302 makes clear, the FBI agents and Mr. Austin both agreed that no information regarding defense strategy would be passed from Austin to the FBI. (7/18/96 interview of Austin, attached as Exhibit B to Mitnick's motion for discovery, at page 4.) More importantly, to the extent that Mitnick has any complaint regarding Austin's contacts with Richard Sherman, those complaints are more properly directed at his co-counsel, Mr. Sherman. The government was unaware that Mr. Austin was going to be employed by Mr. Sherman and, in any event, had no authority to prevent such employment. Furthermore, Austin's initial employment by Sherman, or his company, appears to have predated Sherman's representation of Mitnick. Thus, any conversations _________________ /3 Because the government's filing was made under seal, the government has not quoted from the document. However, the government has included the appropriate citation to allow Mitnick to review his pleading file. 7 they may have had at that point in time would be legally irrelevant. In any event, whatever information Mitnick claims not to have regarding Mr. Sherman's contacts with Austin would presumably be easily obtained from Mr. Sherman. III. CONCLUSION Defendant Mitnick's desire for additional time to prepare for trial may be understandable, given the substantial time and energy devoted by his counsel and the government to reaching a plea agreement that Mitnick subsequently aborted. However, it is simply inappropriate and disingenuous for defendant Mitnick to attempt to obtain that additional time by accusing the government of failing to comply with its discovery obligations or of attempting to invade the defense camp. For the foregoing reasons, the government respectfully submits that defendant Mitnick's motion for discovery should be denied and his motion to continue the trial be weighed considering all the facts, including those omitted by defendant Mitnick in filing these motions. 8