Appellant's Reply

No. 97-50365

IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,

Plaintiff-Appellee,

KEVIN DAVID MITNICK,

Defendant-Appellant. _________________________________

APPELLANT'S REPLY BRIEF
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA

Honorable Mariana R. Pfaelzer, United States District Judge

DONALD C. RANDOLPH
RANDOLPH & LEVANAS
1717 Fourth Street, Third Floor Santa Monica, CA 90401
Telephone: 310/395-7900
Attorneys for Defendant-Appellant, KEVIN DAVID MITNICK
TABLE OF CONTENTS

I. INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . 1 II. ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

A. THE GOVERNMENT HAS BREACHED THE PLEA AGREEMENT BY INJECTING CONDUCT OCCURRING OR HAVING ITS EFFECTS OUTSIDE THE EASTERN DISTRICT OF NORTH CAROLINA INTO THE DETERMINATION OF THE DEFENDANT'S APPLICABLE GUIDELINE RANGE.. . . . . . . . . . 3

B. THE DISTRICT COURT EXPRESSLY RECOGNIZED THAT ITS CONDITIONS WOULD UNNECESSARILY RESTRICT THE APPELLANT'S LIBERTY INTERESTS. . . . . . . . . . . . . . . . . . . . . . . . . 5

C. EVEN IF THE DISTRICT COURT HAD FOUND THE IMPOSED CONDITIONS REASONABLY NECESSARY, SUCH A FINDING WOULD CONSTITUTE AN ABUSE OF DISCRETION. . . . . . . . . . . . . . . . . . . . 7

1. The Authority Relied upon by the Government is Inapplicable to Conditions Here at Issue. . . . . . . 7

2. The Imposed Conditions Impermissibly Delegate Authority Over Restricting the Defendant's Liberty Interests to the Discretion of the Probation Office. . . . . . . .12

D. THE OCCUPATIONAL RESTRICTIONS IMPOSED BY THE COURT ARE PATENTLY ILLEGAL.. . . . . . . . . . . . . . . . . . . . .13

E. THE DISTRICT COURT INCORRECTLY INDICATED THAT IT DID NOT HAVE THE POWER TO AMELIORATE THE DRUG TESTING REQUIREMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . .16

III. CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . .17

TABLE OF AUTHORITIES

Statutes

18 U.S.C. ? 3553 . . . . . . . . . . . . . . . . . . . . . . . . .1, 5 18 U.S.C. ? 3563 . . . . . . . . . . . . . . . . . . . . . . . . . . 3 18 U.S.C. ? 3583 . . . . . . . . . . . . . . . . . . . . . 1, 5, 8, 12 18 U.S.C. ? 3601 . . . . . . . . . . . . . . . . . . . . . . . . . .12 18 U.S.C. ? 3742 . . . . . . . . . . . . . . . . . . . . . . . . 3, 15 U.S.S.G. ? 5D1.3 . . . . . . . . . . . . . . . . . . . . . . .5, 6, 14 U.S.S.G. ? 5F1.5 . . . . . . . . . . . . . . . . . . . . . . . . 13-15

Cases

United States v. Berridge, 74 F.3d 113 (6th Cir. 1996) . . . . . . .16 United States v. Cutler, 58 F.3d 825 (2d Cir. 1995). . . . . . . . .14 United States v. Doe, 79 F.3d 1309, 1319 (2d Cir. 1996). . . . .12, 13 United States v. Eyler, 67 F.3d 1386 (9th Cir. 1995) . . . . . . . . 5 United States v. Holloway, 740 F.2d 1373 (6th Cir. 1984) . . . .10, 11 United States v. Johnson, 998 F.2d 696 (9th Cir. 1993) . . . . . . . 5 United States v. Lowe, 654 F.2d 562 (9th Cir. 1981). . . . . . . . . 9 United States v. Malone, 502 F.2d 554 (9th Cir. 1974). . . . . . . . 9 United States v. Peete, 919 F.2d 1168 (6th Cir. 1990). . . . . . . .15 United States v. Porter, 41 F.3d 68, 70 (2d Cir. 1994) . . . . . . .13 United States v. Terrigno, 838 F.2d 371 (9th Cir. 1987). . . . . . .15

United States v. Turner, 44 F.3d 900 (10th Cir.), cert denied, 515 U.S. 1104 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . 9

No. 97-50365

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

KEVIN DAVID MITNICK,

Defendant-Appellant.

_________________________________

APPELLANT'S REPLY BRIEF

INTRODUCTION

On December 12, 1997, Defendant-Appellant Kevin Mitnick filed Appellant's Opening Brief (hereinafter "AOB") challenging the district court's imposition of conditions of supervised release.

Specifically, Mr. Mitnick contended the district court's conditions of supervised release were imposed in violation of law in that:

(1) the district court imposed conditions of supervised release which were not reasonably related to legitimate sentencing purposes as defined under 18 U.S.C. ? 3553;

(2) the district court imposed conditions involving a greater deprivation of liberty than is reasonably necessary to achieve statutory purposes under 18 U.S.C. ? 3583;

(3) the district court's vague and self-contradictory sentencing directives violate defendant's due process rights.

Furthermore, Mr. Mitnick contended that the district court's occupational restrictions evidence an incorrect application of the sentencing guidelines in that:

(1) the district court did not find that a reasonably direct relationship existed between the defendant's occupation, business, or profession and the conduct relevant to the offense of conviction;

(2) the occupational restrictions are not reasonably necessary to protect the public from similar unlawful conduct;

(3) the occupational restrictions were not imposed to the minimum extent necessary to protect the public;

(4) the imposed conditions constitute impermissible punishment.

Finally, Mr. Mitnick contended that the district court imposed drug testing requirements under the erroneous belief that it did not have the discretion to ameliorate such condition.

On January 22, 1998, the government filed Appellee's Brief (hereinafter "AB") in which it urges this Court to affirm the aforesaid lower court rulings. The government bases its request on the assertion that the Court correctly found that the imposed conditions were reasonable and entirely necessary in order to protect the public from the possible threat of similar conduct by the appellant. The government's position is unsupported by the record and is without legal precedent.

II.

ARGUMENT

The government asserts that "relevant conduct," precluded by the plea agreement for the purposes of determining the defendant's applicable guideline range, is not similarly precluded for the purposes of imposing conditions of supervised release. [AB 18 n. 10]. The government is mistaken. Section 3742(a)(3) clearly states that a defendant may appeal a sentence if the sentence:

"is greater than the sentence specified in the applicable guideline range to the extent that the sentence includes a greater fine or term of...supervised release than the maximum established in the guideline range, or includes a more limiting condition of probation or supervised releaseunder section 3563(b)(6) or (b)(11) than the maximum established in the guideline range," [emphasis added].

By virtue of the fact that Congress has stated the applicable guideline range may be exceeded through the imposition of conditions

of supervised release, it is readily evident that conditions of supervised release are, in fact, an element of the "applicable guideline range" determination. Consequently, the "relevant conduct" precluded in the plea agreement for the purposes of determining the defendant's applicable guideline range is necessarily precluded from consideration in imposing conditions of supervised release. Even if this truth may somehow be considered ambiguous, any ambiguity in the plea agreement must be interpreted against the drafter, in this case, the government.

Despite the express provisions of the plea agreement (and assurances of the court to abide by such agreement), the government injected conduct occurring or having effects outside the Eastern District of North Carolina in recommending conditions of supervised release. [RT 6/16/97: 55-56, RT 6/27/97: 26-27; ER: 34-35, 74-75;

AB: 17]. The government's contention that this was done "without objection" from the defense is misleading. [AB 17]. In fact, the defense was not provided with the relevant discovery necessary to refute these allegations due to the government's assertions that such information was irrelevant to sentencing in light of the provisions of the plea agreement. [Government's Opposition to Defendant's Application for Discovery Order, 3-4, Exhibit A; Appellant's Supplemental Excerpts of Record at 3-4, 9-10]. Furthermore, appellant was expressly assured by the district court that it would not rely upon such allegations for the purposes of sentencing. [RT 6/27/97: 24-25; ER 32-33]. Nonetheless, the government now attempts to use these very allegations, which the defense had no opportunity to refute, in support of the imposed sentence.

The appellant requests that this Court remedy the government's breach of this agreement by striking Appellee's Brief filed in this case. The appellant further requests that this Court preclude the government from introducing evidence in violation of the plea

agreement at oral argument and that the Court remand this case for resentencing with instructions in this regard.

B. THE DISTRICT COURT EXPRESSLY RECOGNIZED THAT ITS CONDITIONS WOULD UNNECESSARILY RESTRICT THE APPELLANT'S LIBERTY INTERESTS.

Pursuant to 18 U.S.C. ? 3583(d)(2), discretionary conditions of supervised release can involve no greater deprivation of liberty than is reasonably necessary for the purposes set forth in ? 3553(a)(2)(B) (deter criminal conduct), (a)(2)(C) (protection of public), and (a)(2)(D) (provide defendant needed educational training). The conditions of supervised release were imposed in error because the district court expressly recognized that they would unnecessarily restrict Mr. Mitnick's fundamental liberty interests. This fact is clearly indicated in the record. The court's conditions were imposed out of a preoccupation over the possibility of Mr. Mitnick using a computer to engage in future "hacking" activity. Among other arguments, defense counsel informed the court that any future "hacking" conduct would necessarily involve the use of a computer modem, and could not be carried out on a computer system isolated from a larger network:

"a computer can only be used to conduct hacking as we commonly know it, if it is attached, if it has modem access. Otherwise, a computer is a word processor just like a manual typewriter." [RT 6/27/97: 6-7; ER 54-55].

By absolutely prohibiting all computer use, the court's restrictions would prohibit conduct which could not result in the harm which it sought to prevent. Recognizing this fact, the court responded to the possibility of Mr. Mitnick operating an isolated computer by stating:

"Then the supervisor, if he is informed that this is what Mr. Mitnick wants to do, will let him do it. That is exactly what is intended here." [RT 6/27/97: 7; ER 55]

This statement clearly indicates that the court did not believe that a total ban on Mr. Mitnick's access to computers was necessary. Furthermore, it demonstrates that the court did not intend to grant the probation officer discretion to deny Mr. Mitnick access to computers and related equipment where such restriction was not warranted. The court simply assumed that the probation officer would allow Mr. Mitnick access to a computer in such a situation.

Considering the plain language of the court's order, however, this assumption is unfounded. The court's order grants full discretionary authority over Mr. Mitnick's access to computer systems and networks to the Probation Office. [ER 86-87]. Although the court clearly determined that there was no need for an absolute ban on computer use in all circumstances, the court's intention to this effect is not reflected in its written order. Consequently, the order is in error and must be vacated.

C. EVEN IF THE DISTRICT COURT HAD FOUND THE IMPOSED CONDITIONS REASONABLY NECESSARY, SUCH A FINDING WOULD CONSTITUTE AN ABUSE OF DISCRETION.

1. The Authority Relied upon by the Government is Inapplicable to Conditions Here at Issue. The government opines that the universal ban on all activities involving or relating to computers is proper since the appellant cannot be "trusted with a computer given his past conduct and the apparent temptation they pose." [AB 20]. The government's argument misses the relevant inquiry in this case. Simply stated, this matter is not question of trust. Nothing in the statutory or case law suggests that conditions of supervised release are to be imposed on the qualification that the court trusts the defendant to abide by the conditions. Indeed, the very nature of the criminal justice system is to attempt to direct individuals' actions through coercion. It is an inherently distrustful system which, nonetheless, recognizes the value of an individual's liberty and the need to balance these interests against the interests of society at large. Moreover, in evaluating the interests of society at large, one must contemplate respect for individual liberties. This case involves severe deprivations of the appellant's fundamental liberties. As such, the conditions here at issue can only be justified upon a finding that such restrictions are made out of reasonable necessity. 18 U.S.C. ? 3583(d)(2). It would be unsettling, at the very least, to conclude that the possible threat of similar harm in the future is so grave as to justify these stifling restrictions, especially when one considers that the stipulated amount of loss in this case amounted to only two thousand dollars. [ER 9]. The appellant does not question the court's ability to limit otherwise lawful activities where it has reasonably found that to do so is necessary in order to promote the protection of the public and the rehabilitation of the defendant. Defendant submits, however, that the restrictions in this case will unnecessarily prohibit an entire universe of fundamental liberties unrelated to these important, though unmistakably definite objectives. Moreover, the objective of rehabilitating the appellant will be ill-served by denying him the opportunity to develop responsible, law-abiding computer practices under the supervision of the Probation Office. The conditions imposed here cannot be considered a genuinely effective way of preventing recidivism since they will have no application beyond the three-year term of supervised release.

As evidenced by the defendant's own proposal, properly focused conditions of supervised release can be tailored to satisfy both the protection of the public and the rehabilitation of the defendant without unnecessarily restricting the appellant's fundamental liberty interests. The government seeks to justify the abnormally austere conditions imposed here by relying on incongruous analogy and by mis-characterizing the most relevant precedent to the facts of this case. The litany of cases cited by the government which uphold restrictions on an individual's ability to associate with certain individuals or frequent specific geographic locations are inapplicable to the instant facts. United States v. Lowe, 654 F.2d 562 (9th Cir. 1981) (defendant prohibited from access within 250 feet of military base); United States v. Turner, 44 F.3d 900 (10th Cir.), cert denied, 515 U.S. 1104 (1995) (defendant prohibited from picketing at abortion clinics); United States v. Malone, 502 F.2d 554 (9th Cir. 1974) (defendant prohibited from visiting Irish pubs due to illegal gunrunning in support of Irish Republican movement.) Unquestionably, the liberty restrictions resulting from one's inability to visit a specific location or associate with specific individuals or groups are deminimus in comparison with the universal applicability of the conditions imposed in this case. Unlike the restrictions in the cases cited by the government, the ever-present constraint on associational and expressive freedoms created by the instant restrictions cannot be eased by substituting new associations or locales. Computer communications are omnipresent, so much so that an entirely new concept, coined "cyberspace," was identified in recognition that these communicative capabilities transcend the limits of physical space. Moreover, the restrictions imposed in this case are without precedent in that they will effectively limit the defendant's associations with individuals on the basis of their preferred mode of communications, a grossly overinclusive standard.subject to this appeal, on a defendant's use of the mails could not be upheld since the breadth of the restriction prevented it from being considered "reasonably related" to the purposes of probation. A

The Sixth Circuit in U.S. v. Holloway, 740 F.2d 1373 (6th Cir. 1984), determined that a prohibition, highly analogous to those similar prohibition on the appellant's use of computer networks and systems must also be invalidated here.

The government attempts to distinguish the defendant's use of the mails in Holloway from the appellant's use of a computer system by claiming that Holloway's use of the mails was "narrow and incidental," whereas the appellant's use of computers was "integral" to his criminal conduct. [AB 23-24]. Contrary to this contention, however, he Sixth Circuit concluded that Holloway's use of the mails was both the very "cause and instrumentality of her crime." Holloway, 740 F.2d 1373, 1383. Nonetheless, the court determined that the mails system was such a broad means of communication that summarily banning its use could not be considered reasonably related to the fraudulent conduct in which the defendant had engaged. Id., at 1383.

Notwithstanding this finding, the court in Holloway justifiably upheld a condition prohibiting the defendant from corresponding with prison inmates since the record clearly showed that she became involved in the illegal conduct by virtue of her "extended correspondence" with inmates through the mails. Id. The court found that prohibiting the defendant from corresponding with this limited and specific category of individuals promoted her rehabilitation and the protection of the public. Id. This prohibition, however, could not extend to include her use of the mails to correspond with persons who had nothing to do with her criminal conduct. Id.

Like the defendant's use of the mails in Holloway, the appellant's use of computers is essentially irrelevant to the fraudulent conduct for which he was convicted. The appellant's conviction in this case resulted from possession and usage of cellular telephone access devices to obtain unauthorized phone service. Undoubtedly, communicative infrastructure such as the postal service and computer networks can be used to further illegal purposes. Nevertheless, the conduct which should be the focus of deterrence herein is fraud, rather than the use of a computer.

Finally, it is apparent that the government has singled out and sought to curtail the appellant's use of computer systems and networks out of an irrational fear of the technology itself. Long after this technology has become entirely pedestrian, a ruling in accordance with the government's reasoning would serve as precedent to authorize the equivalent to near-absolute repression of expressive and associational rights amid the Information Age. The government's imbalanced reliance on the appellant's history in justifying the current restrictions reflects an effort to further punish the appellant for conduct unrelated to this offense and for which justice has already been served

2. The Imposed Conditions Impermissibly Delegate Authority Over Restricting the Defendant's Liberty Interests to the Discretion of the Probation Office.

It is self-evident that a court cannot grant to the Probation Office discretionary powers over matters beyond the court's own discretion. This axiom need not be supported by case law to be decidedly persuasive. Since the court expressly recognized instances where its restrictions affecting liberty interests were not necessary, it could neither impose such restrictions nor delegate the authority to relieve such restrictions to the Probation Office. 18 U.S.C. ? 3583(d)(2).

Moreover, the court cannot completely delegate the decision of whether to restrict an individual's liberty or occupation to the authority of the Probation Office. United States v. Doe, 79 F.3d

1309, 1319 (2d Cir. 1996) ("the decision whether to impose an occupational restriction is entrusted ultimately not to the Probation Department but to the court"); 18 U.S.C. ? 3601 ("a person who has been sentenced to probation...shall during the term imposed, be supervised by a probation officer to the degree warranted by theconditions specified by the sentencing court") [emphasis added]; U.S.S.G. ? 5F1.5(a) (occupational restriction may be imposed by the court) [emphasis added]. Yet, as evidenced in the following portion of the transcript, the district court expressly delegated its own decision-making authority to the probation office:

"that is why the person who [i]s conducting the supervision is to decide whether a particular activity in which the defendant is engaged is appropriate or wants to engage is appropriate." [RT 6/27/97: 5, ER 53]. The probation office's ability to oversee implementation of the court's conditions does not include the authority to substantively define the nature of those conditions. United States v. Porter, 41

F.3d 68, 70 (2d Cir. 1994) (court cannot delegate inherently judicial functions to the probation department). As a result, the court'sdelegation of its role in crafting conditions of supervised release which substantively affect Mr. Mitnick's liberty interests or occupational freedoms must be overturned.

D. THE OCCUPATIONAL RESTRICTIONS IMPOSED BY THE COURT

ARE PATENTLY ILLEGAL.

Wholly apart from the improper delegation of authority to the Probation Office, the occupational restrictions in this case are flagrantly inappropriate. Occupational restrictions cannot properly be imposed absent truly compelling circumstances. United States v. Doe, 79 F.3d 1309, 1320 (2d Cir. 1996) ("while a sentencing court has broad discretion in fixing conditions of probation...we carefully scrutinize unusual and severe conditions, such as one requiring the defendant to give up a lawful livelihood,") (internal quotation marks omitted); United States v. Cutler, 58 F.3d 825, 838 (2d. 1995). Furthermore, even when imposed, such restrictions can only be for the minimum amount of time and to the minimum extent necessary to protect the public. U.S.S.G. ? 5F1.5. The instant conditions badly fail to meet these requirements and were not predicated on the necessary findings required by the Sentencing Guidelines.

U.S.S.G. ? 5F1.5 requires that the sentencing court make two distinct findings before imposing occupational restrictions- neither of which were made or could be made by the district court in this case. First, the court must find that a reasonably direct relationship existed between the defendant's occupation and the conduct relevant to the offense of conviction. No such finding was possible since the court had no evidence as to the nature of Mr. Mitnick's occupation for any time since December, 1987. [PSR at ? 70]. There was no evidence, nor even any allegations, that theconduct relevant to this offense had anything to do with Mr. Mitnick's employment. The government's strained attempt to draw a link between the offense of unauthorized access code possession and Mr. Mitnick's apprenticeship of a decade ago cannot possibly constitute the "reasonably direct relationship" envisioned under ? 5F1.5.

Secondly, the court made no finding that its occupational restrictions were necessary to protect the public since, absent such restrictions, Mr. Mitnick would continue to engage in conduct similar to that for which he was convicted. U.S.S.G. ? 5F1.5(a)(2). The court's stated concern over the defendant's "hacking" activities are irrelevant to this determination since the conviction resulted from possession of unauthorized access devices for cellular phone services. Moreover, irrespective of the fact that they are irrelevant, such allegations were to be expressly excluded according to both the terms of the plea agreement and the court's own determination. [RT

6/27/97: 24-25; ER: 8, 32-33].

Obviously, since no relationship, reasonably direct or otherwise, existed between the appellant's occupation and the conduct relevant to the offense of conviction, no limitations on his occupation can be considered reasonably necessary to protect the public from future similar conduct. Consequently, the conditions necessarily fail to satisfy ? 5F1.5(a)(2). None of the authority cited by the government is applicable to the case at hand since, in each case relied upon, the restricted individual had abused their employment position through commission of their crimes. United States v. Terrigno, 838 F.2d 371 (9th Cir. 1987) (defendant, director of organization convicted of embezzling federal funds, restricted from employment in any position where responsible for administration of public funds); United States v. Peete, 919 F.2d 1168 (6th Cir. 1990) (defendant, a city councilman convicted of attempted extortion relating to his official position, restricted from engaging in public service); United States v. Berridge, 74 F.3d 113 (6th Cir. 1996) (defendant, former bank officer convicted of loan fraud, restricted from obtaining employment in banking industry). No similar allegations of occupational misdeeds were ever raised against the appellant. Furthermore, while the preceding cases restricted defendants only from maintaining employment similar to that which they had previously corrupted, the restrictions at issue here will prevent the appellant from holding practically any type of job.

E. THE DISTRICT COURT INCORRECTLY INDICATED THAT IT

DID NOT HAVE THE POWER TO AMELIORATE THE DRUG

TESTING REQUIREMENT.

Despite the fact that every indication in the record reflects no history of substance abuse or risk of future abuse, the district court refused to ameliorate a drug testing requirement in this case. In so refusing, the court indicated that it had no authority to ameliorate the conditions by equating this condition with two separate, mandatory conditions which cannot be waived. The court thereby erroneously indicated that it did not have discretion to ameliorate the drug testing requirement. As a result, this condition must be vacated.

III.

CONCLUSION

For all of the foregoing reasons, this Court must vacate the sentence imposed and remand this case to the district for re-sentencing.

DATED: February 26, 1998 Respectfully submitted,

RANDOLPH & LEVANAS

_____________________________ Donald C. Randolph

Attorneys for Defendant-Appellant KEVIN DAVID MINTICK