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
Attorney for Defendant
KEVIN DAVID MITNICK
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
UNITED STATES OF AMERICA, Plaintiff,)
vs.
KEVIN DAVID MITNICK
Defendant ______________________________
CASE NO. 96-881-MRP
DEFENDANT KEVIN MITNICK'S APPLICATION FOR RELEASE PENDING TRIAL; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATIONS; EXHIBITS
TO THE UNITED STATES OF AMERICA AND TO THEIR ATTORNEYS OF RECORD HEREIN:
Defendant, KEVIN DAVID MITNICK, by and through his attorney of record, Donald C. Randolph, hereby applies to this Court for release pending trial pursuant to 18 U.S.C. §3142(c).
This application is based on all the files and pleadings in this case, the exhibits, the Declaration of Donald C. Randolph filed concurrently with this application in camera and under seal, as well as any oral or documentary evidence which may be presented at hearing on this matter.
DATED: March 25, 1998 Respectfully submitted,
RANDOLPH & LEVANAS
By: ________________________________
DONALD C. RANDOLPH
Attorneys for Defendant
KEVIN DAVID MITNICK
TABLE OF AUTHORITIES
STATUTES
18 U.S.C. § 1029 1, 2
18 U.S.C. § 1030 1, 20
18 U.S.C. § 3141 5
18 U.S.C. § 3142 3-8, 33
18 U.S.C. § 3164 26
Federal Rules of Criminal Procedure, 16 21
CASES
Bell v. Wolfish, 441 U.S. 520 (1979) 16
Brady v. Maryland, 373 U.S. 83 (1963) 21, 22
Powell v. Alabama, 287 U.S. 45 (1982) 17
United States v. Accetturo, 783 F.2d 382 (3rd Cir. 1986) 23
United States v. Ailemen 165 F.R.D. 571 (N.D.Cal. 1996) 11, 16, 17, 26, 29, 32
United States v. Byrd, 969 F.2d 106 (5th Cir. 1992) 6, 7
United States v. Carbone, 793 F.2d 559 (3rd Cir. 1986) 31
United States v. Chen, 820 F.Supp. 1205 (N.D.Cal. 1992)10, 30, 32
United States v. Claudio, 806 F.2d 334 (2d Cir. 1986) 25
United States v. Fortna, 769 F.2d 243 (5th Cir. 1985) 10
United States v. French, 738 F.Supp. 24 (D. D.C. 1990) 31
United States v. Gallo, 653 F.Supp. 320 (E.D. N.Y. 1986)17, 18, 23
United States v. Gatto, 750 F.Supp. 664 (D.N.J. 1990) 25, 26
United States v. Gebro, 948 F.2d 1118 (9th Cir. 1991) 4, 5, 13
United States v. Gelfuso, 838 F.2d 358 (9th Cir. 1988)16, 18, 19
United States v. Gonzales-Claudio, 806 F.2d 334 (2nd Cir. 1986) 16, 16, 18, 19, 23
United States v. Hare, 873 F.2d 796 (5th Cir. 1989) 28
United States v. Himler, 797 F.2d 156 (3rd Cir. 1986) 7, 8, 10
United States v. Jackson, 845 F.2d 1262 (5th Cir. 1988) 4
United States v. Kai-Lo Hsu, 982 F.Supp. 1022 (E.D.Pa. 1997) 20
United States v. Lofranco, 620 F.Supp. 1325 (D.C.N.Y. 1985) 23
United States v. Maull, 773 F.2d 1479 (8th Cir. 1985) (en banc) 4
United States v. Motamedi, 767 F.2d 1403 (9th Cir. 1985) 4, 5, 13
United States v. Ojeda Rios, 846 F.2d 167 (2d Cir. 1988) 3
United States v. Orta, 760 F.2d 887 (8th Cir. 1985) 3, 4, 10
United States v. Patriarca, 948 F.2d 789 (1st Cir. 1991) 30
United States v. Ploof, 851 F.2d 7 (1st Cir. 1988) 6
United States v. Portes, 786 F.2d 758 (7th Cir. 1985) 10
United States v. Salerno, 481 U.S. 739 (1987) 3, 5, 9, 16
United States v. Theron, 782 F.2d 1510 (10th Cir. 1986) 15
United States v. Tortora, 922 F.2d 880 (1st Cir. 1990) 10
United States v. Townsend, 897 F.2d 989 (9th Cir. 1990) 5
United States v. Vastola, 652 F.Supp. 1446 (D.N.J. 1987) 24, 25, 28, 29 32
United States v. Winsor, 785 F.2d 755 (9th Cir. 1986) 13
TABLE OF CONTENTS
I. INTRODUCTION 2
II. STATEMENT OF THE CASE 2
III. ARGUMENT 4
A. PRETRIAL DETENTION IS RARELY APPROPRIATE 4
B. THE BAIL REFORM ACT DOES NOT AUTHORIZE PRETRIAL DETENTION PREDICATED UPON DEFENDANT'S PURPORTED DANGER TO THE COMMUNITY FOR THE OFFENSES ALLEGED IN THIS CASE. 6
C. THE GOVERNMENTS REGULATORY INTERESTS IN THE DEFENDANT'S CONTINUED INCARCERATION ARE OUTWEIGHED BY CONSIDERATIONS DEMANDING HIS RELEASE. 10
D. CONDITIONS EXIST WHICH WILL REASONABLY ASSURE THE DEFENDANT'S APPEARANCE AT TRIAL. 13
E. THE DEFENDANT'S EXCESSIVELY PROLONGED DETENTION HAS BECOME PUNITIVE CONTRARY TO CONGRESS' REGULATORY INTEREST AND REQUIRES HIS IMMEDIATE RELEASE ON CONDITIONS UNDER THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT. 16
F. SUGGESTED CONDITIONS OF RELEASE 29
IV. CONCLUSION 34
MEMORANDUM OF POINTS AND AUTHORITIES
I.
INTRODUCTION
Mr. Mitnick has been detained while awaiting trial in this case for approximately one and one-half years.(1) This continuing period of incarceration, under the circumstances of this case, constitutes a violation of the principles of the United States Constitution and statutory law. This Court should remedy this situation by releasing Mr. Mitnick under appropriate conditions of bail.
II.
On March 15, 1989, defendant pled guilty to a first superseding information charging one count of computer fraud, in violation of 18 U.S.C. § 1030(a)(4) and one count of access device fraud in violation of 18 U.S.C. § 1029(a)(3). This Court sentenced the defendant to 12 months incarceration and three years of supervised release. As special conditions of the term of supervised release, this Court ordered that: (1) defendant not associate with other individuals who had participated in the illegal access of computer and telecommunication systems; and (2) defendant not illegally access computer or telecommunication systems.
On February 15, 1995, the defendant was arrested on a warrant issued by this Court for violating the terms of his supervised release. The grand jury returned a 23 count indictment in the Eastern District of North Carolina charging defendant with various telecommunications access device related offenses. Pursuant to a plea agreement between the defendant and the United States Attorney's Office for the Eastern District of North Carolina, the indictment was transferred to this district pursuant to Rule 20 of the Federal Rules of Criminal Procedure. As part of the plea agreement, the defendant agreed to plead guilty to Count 2 of the indictment, charging him with possession of 15 or more unauthorized access devices in violation of 18 U.S.C. §1029(a)(3).
On April 22, 1996, pursuant to the plea agreement, the defendant pled guilty to Count 2 of the North Carolina indictment.
On June 27, 1997, this Court sentenced the defendant to eight months on Count 2 of the North Carolina indictment and placed him on three years of supervised release and imposed 14 months for violation of the terms of his supervised release as charged in allegations one and two of the petition filed by the probation office, to run consecutively to the sentence imposed on the North Carolina indictment, for a total sentence of 22 months.
Due to the fact that he had been held for a greater period of time than he was eventually sentenced to in the previous cases, it was calculated that the defendant completed his 22 month consecutive sentence on September 19, 1996. [Bureau of Prisons records, Exhibit A]. Despite his release on the two prior cases, the defendant continues to be held in custody on the grand jury indictment returned in this case on September 26, 1996, charging him with wire fraud, computer fraud, causing damage to computers, interception of wire or electronic communications and unauthorized possession of unauthorized access devices (computer passwords).
III.
ARGUMENT
A. PRETRIAL DETENTION IS RARELY APPROPRIATE
18 U.S.C. § 3142 governs the procedure that must be followed at a bail/detention hearing. If the prosecution seeks detention, it must establish that no condition or combination of conditions will reasonably assure the safety of the community and the defendant's appearance at trial. United States v. Orta, 760 F.2d 887 (8th Cir. 1985); 18 U.S.C. 3142(f). A wide range of release conditions are available, including curfews, travel restrictions, reporting requirements, the use of radio bracelet warning systems, and third party custody. See 18 U.S.C. §3142(c)(1)(B); United States v. Ojeda Rios, 846 F.2d 167, 169 (2d Cir. 1988). Considering the versatility of the foregoing options, the burden on the prosecution is unquestionably an onerous one. Orta, 760 F.2d at 891 ("the wide range of restrictions available ensures, as Congress intended, that very few defendants will be subject to pretrial detention.") If the prosecution's burden is not met, bail must be set.
Although the Bail Reform Act of 1984 expanded the applicable considerations for pre-trial detention to include "safety of the community," cases interpreting the statute consistently reiterate that "the passage of the pretrial detention provision of the 1984 Act did not...signal congressional intent to incarcerate wholesale the category of accused persons awaiting trial." United States v. Orta, supra, 760 F.2d at 890. As the Orta Court explained: "It is anticipated that pretrial release will continue to be appropriate for the majority of Federal defendants." Id. at 890 (citing S.Rep. No. 225, 98th Cong., 1st Sess. p. 12) (emphasis in original); see also, United States v. Salerno, 481 U.S. 739 (1987). Consistent with this statement, the statutory scheme continues to favor release over pretrial detention, providing the judicial officer with alternatives to structure an appropriate pretrial release. Id. at 890. Only in rare circumstances should release be denied. United States v. Gebro, 948 F.2d 1118, 1121 (9th Cir. 1991).
Section 3142(g) specifies the various factors which must be considered in determining whether conditions of release exist which will reasonably assure the appearance of the person and the safety of the community.(2) The appropriate procedure in detention hearings requires that the Court follow a statutory progression from release on personal recognizance to conditional release before the Court can even consider detention. Orta, 760 F.2d at 890-91; United States v. Maull, 773 F.2d 1479, 1482 (8th Cir. 1985) (en banc). The Court must also specifically consider the factors enumerated in 18 U.S.C. §3142(g) before it can order detention. United States v. Jackson, 845 F.2d 1262, 1265-66 (5th Cir. 1988).
The Act requires that a finding of dangerousness, under its provisions, be supported by "clear and convincing" evidence, while the government must prove by a preponderance of evidence that the defendant poses a flight risk. United States v. Gebro, supra at 1121. To the extent that there exist any doubts in this regard, such doubts must be resolved in defendant's favor. See Gebro, supra; Motamedi, supra. In order to give effect to the principle that doubts regarding the propriety of release be resolved in favor of the defendant, the court is to rule against detention in close cases, applying a "clear preponderance" test. Motamedi, 767 F.2d at 1405-06; United States v. Townsend, 897 F.2d 989, 993 (9th Cir. 1990).
Defendant submits that he is not a serious flight risk and that the pending charges do not fall within the enumerated prerequisites for preventive detention as a danger-to-the-community under the Bail Reform Act. Consequently, preventive detention of the defendant is improper and violative of defendant's rights under 18 U.S.C. § 3141, et seq. and the Due Process Clause of the Fifth Amendment. Moreover, release conditions are available which will reasonably assure defendant's appearance at trial and the safety of the community.
B. THE BAIL REFORM ACT DOES NOT AUTHORIZE PRETRIAL DETENTION PREDICATED UPON DEFENDANT'S PURPORTED DANGER TO THE COMMUNITY FOR THE OFFENSES ALLEGED IN THIS CASE.
The Bail Reform Act limits prosecutorial discretion to move for detention by specifying with particularity the circumstances under which detention may be sought by the government.(3) According to the statute, the United States Attorney may only request detention in the following six categories of cases:
1) where the defendant is charged with a crime of violence;
2) a case involving an offense for which the maximum sentence is life imprisonment or death;
3) a case involving a drug-related offense carrying a maximum sentence of ten years or more;
4) a case charging any felony if the defendant has previously been convicted on two or more occasions of offenses described in (1)-(3) above;
5) where there is a serious risk that the defendant will flee; and
6) where there is a serious risk that the defendant will obstruct or attempt to obstruct justice, or threaten, or attempt to threaten, injure or intimidate a prospective witness or juror.
18 U.S.C. § 3142(f)(1) & (2); United States v. Ploof, 851 F.2d 7, 10 (1st Cir. 1988). The court may hold a detention hearing on its own motion in the latter two of the aforementioned instances. 18 § 3142(f)(2).
As evident from the six categories listed above, there is no statutory authority permitting a motion for detention predicated simply on broad assertions that the defendant is a "danger" to the community or to another person. United States v. Byrd, 969 F.2d 106, 110 (5th Cir. 1992). Absent the circumstances listed in § 3142(f)(1), a person by definition cannot be considered a danger to the community for the purposes of pre-trial detention.(4) See United States v. Ploof, supra, 851 F.2d at 11 ("where a detention is based on dangerousness grounds, it can be ordered only in cases involving one of the circumstances set forth in § 3142(f)(1)"); United States v. Himler, 797 F.2d 156, 160 (3rd Cir. 1986) (statute does not authorize "pretrial detention upon proof of danger to the community other than from those offenses which will support a motion for detention,"); United States v. Byrd, supra, 969 F.2d at 109 (Bail Reform Act does not authorize detention solely on ground of alleged dangerousness; government must establish that defendant's conduct involves one of circumstances listed in the statute).
Where the provisions of 18 U.S.C. § 3142(f)(1) are inapplicable, as here, a detention hearing may be conducted upon the Court's own motion pursuant to the provisions of 18 U.S.C. § 3142(f)(2). In such instances, courts are limited to a consideration of the grounds listed in § 3142(f)(2)(A) (whether the defendant poses a serious risk of flight) and (B) (whether a serious risk exists that defendant would obstruct justice or threaten or intimidate a witness or juror).
In U.S. v. Himler, 797 F.2d 156, the defendant had been charged with crimes involving the production of false identification. The district court ordered detention on the grounds of dangerousness to the community finding that, if the defendant were released, he would commit further crimes involving false identification. The Third Circuit reversed, concluding the statute does not authorize "pretrial detention upon proof of danger to the community other than from those offenses which will support a motion for detention." Himler at 160; 18 U.S.C. § 3142(f)(1). Absent one of these conditions, a defendant may only be detained upon a finding that he presents a serious risk of flight or obstruction of justice. The court concluded that detention was not authorized, as the record did not support detention on flight grounds, and there had been no allegation the defendant would obstruct justice. Id.
In United States v. Ploof, 851 F.2d 7, a similar question was examined in the case of a defendant who was indicted for conspiracy to make false statements on a mortgage loan application. A detention hearing was conducted pursuant to 18 U.S.C. §3142(f)(2). The defendant was ordered detained by a magistrate who found that the defendant had recently plotted to kill his girlfriend's husband, and that no conditions could secure the safety of the community from the defendant's apparent ruthlessness. Ploof, 851 F.2d at 8. The defendant moved to revoke the detention order, but the district court also ordered the detention of the defendant on dangerousness grounds. Id. at 9. On appeal to the First Circuit, the defendant successfully argued, inter alia, that preventive detention cannot be ordered whenever a defendant could be perceived as a danger to another person or to the community absent a charge relating to those enumerated in 18 U.S.C. §3142(f)(1)(A)-(D). Thus, even if the defendant were a threat to his girlfriend's husband, the Bail Reform Act did not authorize detention. Ploof at 10-11.
The government's own request for a detention order, entered into the record on October 4, 1996, recognizes the limited grounds upon which such a motion can be made. [Exhibit B]. This boilerplate form expressly lists the exclusive factors under section 3142 which must exist in order to support a motion for detention. Although the government alleged, generally, that Mr. Mitnick constituted a danger to the community and posed a risk of flight, it was unable to indicate any factors giving rise to a presumption that either of these conditions was truly present. [Exhibit B, section 3]. Thus, in justifying its entitlement to a detention hearing under 3142(f), the government's claim was based solely on the allegation that Mr. Mitnick presented a serious risk of flight since no factors indicating dangerousness, for purposes of the Act, exist here. [Exhibit B, paragraph 4].
Since the statutory grounds for preventive detention based on a defendant's danger to the community are inapplicable in this case, and no threat of obstruction of justice or intimidation of witnesses under (f)(2)(B) been alleged, the only issue before this Court is the risk of flight. Under such circumstances, the defendant's release on reasonable bail is mandated under the Act. The Supreme Court stated as much as it explained,
"thus, when the government has admitted that its only interest is in preventing flight, bail must be set by a court at a sum designed to ensure that goal, and no more. We believe that when Congress has mandated detention on the basis of a compelling interest other than prevention of flight...the Eighth Amendment does not require release on bail," [emphasis added]. Salerno, 481 U.S. at 754-55, 107 S.Ct. 2095, 2105.
The rationale is that there is always some set of conditions which will reasonably assure a defendant's appearance at trial. It can be presumed that reasonable assurances of the defendant's appearance exist where the opportunity cost of failing to appear approaches the perceived benefit associated with fleeing. In considering this balancing act, the Court should be mindful that conditions of bail should reasonably assure the defendant's appearance but cannot be so burdensome as to be excessive.
C. THE GOVERNMENT'S REGULATORY INTERESTS IN THE DEFENDANT'S CONTINUED INCARCERATION ARE OUTWEIGHED BY CONSIDERATIONS DEMANDING HIS RELEASE.
The defendant contends that he is not a serious flight risk and that there are reasonable conditions of release which will reasonably assure his appearance at trial.(5) Importantly, the mere possibility of flight is insufficient to justify detention. United States v. Himler, 797 F.2d 156, 162 (3d Cir. 1986) (opportunity to flee is not enough to justify detention). The requirement that the conditions of release 'reasonably assure' a defendant's appearance cannot be read to require guarantees against flight. United States v. Portes, 786 F.2d 758, 764 n. 7 (7th Cir. 1985); United States v. Fortna, 769 F.2d 243, 250 (5th Cir. 1985); United States v. Orta, 760 F.2d 887, 890-92 (8th Cir. 1985). See also United States v. Tortora, 922 F.2d 880, 884 (1st Cir. 1990) (even where the issue is the safety of the community, Congress did not require guarantees in enacting the Bail Reform Act). While the defendant, in the government's view, may be a possible flight risk, courts have previously released defendants characterized as "flight risks" under appropriate conditions. United States v. Chen, 820 F.Supp. 1205 (N.D.Cal. 1992) (conditions existed to reasonably assure the appearance of defendants, considered to be flight risks, who were charged with what the government described as the largest heroin seizure in United States history.) See Section F, pgs. 25-11, infra.
It is critical for the Court to bear in mind that when it assesses the magnitude of the threat that an individual defendant poses to the government's regulatory interests, the proper focus is not on how big that threat would be if the defendant were released on no conditions, but, instead, on how big that threat would be if the defendant were released on appropriate conditions aimed at reducing the likelihood of harm to the threatened regulatory interests. United States v. Ailemen 165 F.R.D. 571, 579 (N.D.Cal. 1996). As the court in Ailemen recognized,
"It is only by focusing on the actual conditions of release, and what those conditions would contribute to reducing the threat of harm to the government's regulatory interests, that courts can accurately assess how much continued imprisonment would contribute to achieving the government's regulatory goals." Id.
The defendant submits that conditions of release can be imposed in such a manner as to significantly minimize the threat of harm to the government's regulatory interests. As previously explained, the only regulatory interest of relevance to this Court which may be furthered by his incarceration is the assurance of the defendant's appearance at trial. Given the broad range and combined effectiveness of the various conditions available to the Court, it seems highly dubious that there are no set of conditions which will reasonably assure protection of this interest. See, discussion of bail conditions, Section F, infra. Indeed, sufficiently stringent conditions of release can be imposed in this case so as to render any additional assurances to this regulatory purpose resulting from his continued incarceration to be negligible.
Importantly, in examining the full nature of the government's regulatory interests in this case, the Court is not limited merely to assuring the defendant's appearance at trial. As the Court is well aware, this case is affected by truly extraordinary circumstances, including an unfathomable volume of evidence and the unique and highly technical problems associated with accessing this data.(6) Mr. Mitnick has been unable to assist in the review of this evidence due to his state of incarceration. The defense contends that this Court has a compelling regulatory interest to ensure the proper administration of justice, and that this consideration mitigates heavily in favor of releasing Mr. Mitnick on bail. It is submitted that the degree of protection against the risk of flight afforded by incarceration compared to that afforded by stringent conditions of release is uncompelling. Furthermore, when this marginal interest is weighed against the Court's cogent interest to ensure a fair trial, on balance, the government's own regulatory interests call for the defendant's release on appropriate conditions of bail.
This does not end the Court's inquiry here, however. After independently weighing the government's interests, the Court must next balance this aggregate against the full value of the defendant's fundamental rights as guaranteed by the Constitution. Unlike most instances, this case not only requires examination of Mr. Mitnick's liberty interests, but also requires recognition of the due process implications resulting from his lengthy detention. Moreover, the Court is requested to consider the deleterious effect this has had on Mr. Mitnick's ability to assist in his own defense.(7)
D. CONDITIONS EXIST WHICH WILL REASONABLY ASSURE THE DEFENDANT'S APPEARANCE AT TRIAL.
In examining whether any condition or combination of conditions will reasonably assure the appearance of the defendant, the court considers the nature and circumstances of the offense, the weight of the evidence against the accused, the history and characteristics of the person including physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, prior criminal history, drug and alcohol history, and previous appearance record. See United States v. Gebro, supra, 948 F.2d at 1121.
Each of the above-mentioned factors must be examined in turn with respect to the instant case. First, the defendant is accused of no crime involving violence or narcotic drugs, nor are the offenses alleged to have been committed for economic, pecuniary or financial gain to the defendant or to another. Naturally, these factors weigh in favor of release on bail. Similarly, the weight of the evidence lends no support to detaining the defendant in this case. For one, it is virtually impossible to characterize the nature, scope and strength of the evidence in this case due to the state of the discovery, the fact that the defendant has been unable to access much of the available discovery. Nonetheless, this factor is the least important of those to be considered. United States v. Winsor, 785 F.2d 755, 757 (9th Cir. 1986) (the statute neither requires nor permits a pretrial determination of guilt). United States v. Motamedi, 767 F.2d at 1408 (this factor can only be considered in terms of the likelihood that the defendant will fail to appear or will pose a danger to the community; otherwise, refusal to grant release could become, in substance, a matter of punishment).
Mr. Mitnick's personal considerations demonstrate that he is well-suited for release on appropriate conditions of bail. Mr. Mitnick has strong family and community ties to the Los Angeles area where his father, uncle, aunt, cousins and friends all reside, and which is nearby to his mother's and grandmother's residences in Las Vegas, Nevada. Although he is financially indigent, Mr. Mitnick's family is willing to accommodate him and offer assistance in any way they can. His mother and grandmother are both prepared to encumber their homes in order to secure a bail bond for Mr. Mitnick. [See, Declarations of Rochelle Jaffe and Reba Vartanian, Exhibit C]. Mr. Mitnick's uncle, Mitchell Mitnick, has offered him a job in his construction business if he is released. [See Declaration of Mitchell Mitnick, Exhibit C].
Additionally, the defendant demonstrates no proclivity to flee from the country. He has never been outside of the United States except for brief family visits to Tijuana, Mexico, as a minor, and his passport is available to be surrendered as a condition of release.
The defendant is cognizant of the Court's concern due to his failure to surrender on a previous warrant in 1992. However, the defendant submits that this transgression, by itself, does not serve to create a presumption that no conditions of release will reasonably assure Mr. Mitnick's future appearance before this Court. The factual scenario surrounding that circumstance are not analogous to the question currently before the Court.
Significantly, during the time Mr. Mitnick failed to surrender on the supervised release warrant, he was not subject to any conditions of bail such as those available to the Court here. Thus, no genuinely coercive conditions were in place to assure Mr. Mitnick's appearance on that warrant. Consequently, his failure to surrender does not demonstrate a general aptitude to flee from judicial obligations without regard to the aftermath. In fact, the defendant's history affirmatively demonstrates that every time he has been subject to release on conditions of bail, he has dutifully made all appearances required of him.(8)
Rather, Mr. Mitnick's failure to surrender is more indicative of the relative lack of incentives at the time which would have encouraged him to affirmatively surrender himself to authorities. To Mr. Mitnick, the consequences which could have resulted from this transgression were neither certain nor immediate. By contrast, this Court is abundantly capable of imposing conditions which will result in unmistakable and immediately undesirable consequences in order to assure Mr. Mitnick's appearance at trial. Given his past history of abiding by conditions of bail, and the significant factual distinctions surrounding his anamolous failure to surrender, the government cannot prove by a preponderance of the evidence that no conditions of bail will reasonably assure Mr. Mitnick's appearance at trial. Consequently, the defendant's release on reasonable bail is warranted in this case.
E. THE DEFENDANT'S EXCESSIVELY PROLONGED DETENTION HAS BECOME PUNITIVE CONTRARY TO CONGRESS' REGULATORY INTEREST AND REQUIRES HIS IMMEDIATE RELEASE ON CONDITIONS UNDER THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT.
In the American criminal justice system, defendants are presumed innocent until proven guilty. In such a system, "valid pretrial detention assumes a punitive character when it is prolonged significantly." United States v. Theron, 782 F.2d 1510, 1516 (10th Cir. 1986). The Due Process Clause of the Fifth Amendment of the United States Constitution prohibits the imposition of punishment prior to trial. Bell v. Wolfish, 441 U.S. 520, 535 & n. 16 (1979).
The Supreme Court in United States v. Salerno, supra, 481 U.S. at 749 declared that "in our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception." Nevertheless, the Court held that limited pretrial detention does not violate the Due Process Clause so long as it is "regulatory" and "not penal." Rejecting a facial challenge to the constitutionality of a Bail Reform Act provision permitting pretrial detention based on potential dangerousness to society, the Salerno court expressly stated, however, that it was intimating "no view as to the point at which detention in a particular case might become excessively prolonged, and therefore punitive, in relation to Congress's regulatory goal." 481 U.S. at 747 n. 4.
In United States v. Gelfuso, 838 F.2d 358, 359 (9th Cir. 1988), the Ninth Circuit followed the Second Circuit in finding that the due process limit on the length of pretrial detention requires assessment on a case-by-case basis. "We consider the length of confinement in conjunction with the extent to which the prosecution bears responsibility for the delay that has ensued." Id. (citing United States v. Gonzales-Claudio, 806 F.2d 334, 340 (2nd Cir. 1986).) Canvassing the reported cases in this area, the court in United States v. Ailemen, 165 F.R.D. 571, 581 (N. D. Cal. 1996), noted that most courts, when responding to a due process motion based on the length of pretrial detention have focused principally on three factors:
(1) the non-speculative length of expected confinement;
(2) the extent to which the government (the prosecution and/or the court system) bears responsibility for pretrial delay; and
(3) the strength of the evidence indicating a risk of flight, a threat to the trial process, and/or a danger to the community. Id.
In addition, some courts, in some circumstances, have compared the length of the likely sentence faced by the defendant to the length of the pretrial detention (in general, the closer the length of pretrial detention gets to the probable sentence, the more likely the courts are to find a due process violation). Id.
The severity of the harm suffered by Mr. Mitnick as a result of his detention cannot be underestimated. Courts have observed that prolonged pre-trial detention results in a pattern of harms traditionally considered punitive, rather than regulatory. United States v. Gallo, 653 F.Supp. 320, 336 (E.D. N.Y. 1986). The quality of the detainees' legal defense also diminishes dramatically as long as he or she is incarcerated. Id. at 337. Moreover, the morale and demeanor of the detainee deteriorates substantially, reflecting his or her idleness, isolation and exposure to the vagaries of prison. Id. at 336. Indeed, the Supreme Court has held that "the interlude between arraignment and trial is 'perhaps the most crucial period of the proceedings...when consultation, thorough going investigation and preparation...[are] vitally important...' Powell v. Alabama, 287 U.S. 45, 57 (1982)." Id. Furthermore, there is evidence that the longer the period of detention before disposition, the greater are the chances of conviction and the likelihood of a prison sentence, because of the cumulative effects of detention on the defendant's demeanor and defense. Gallo, at 337-338.
The consequences of this detention extend even further than those relating to the presentation of his defense. The defendant enjoys fewer liberty interests at MDC than those serving sentences at MDC. Those inmates serving their sentences are entitled to longer visitation hours, meetings with friends as well as family, and may attend educational classes and work at institutional jobs. The defendant, however, is limited to visits from his immediate family, and is prohibited from working or engaging in outside business opportunities, cannot attend education classes, and is restricted to his housing unit. Furthermore, the defendant's opportunity to examine the computer discovery so as to assist in his defense has been non- existent at the MDC, and his access to the law library is limited as well to only 5 1/2 hours per week. In short, the defendant's detention has ceased to be regulatory and has impermissibly become punitive. Gallo, 653 F.Supp. 320, at 336-338.
1. Defendant Faces A Non-Speculative Detention Of 19 To 21 Months.
As the Court is aware, the defendant has been detained following his release from his earlier cases, since September 19, 1996, and trial is currently scheduled to commence on April 21, 1998.(9) Thus, the defendant has been detained for approximately 18 months and will be detained for another one to three months (assuming a two month trial, at a minimum) for a non-speculative detention of 19 to 21 months.
2. The Government Is Responsible For A Significant Portion Of The Delay.
In United States v. Gonzales-Claudio, cited with approval by the Ninth Circuit in United States v. Gelfuso, supra, 838 F.2d at 359, the Court ruled that due process required the release of some of the defendants charged in the robbery of a Wells Fargo Depot who were members of a terrorist group dedicated to Puerto Rican independence. 806 F.2d at 343. The expected length of the detention through the end of trial was 26 months. Id. at 341. The court found that the prosecution bore a significant responsibility for the pretrial delay, because it failed to expeditiously provide translation of wiretap tapes, delayed in disclosing video taped evidence to the defense, and had not turned over all discoverable materials. Gonzales-Claudio, at 342. Even though the defendants' ties to the terrorist organization created a significant risk that the defendants would flee, continued detention was not permitted. Id. at 343.
In the present case, the defense has repeatedly requested discovery from the government and the government has failed to provide meaningful compliance. [See, correspondence to government requesting discoverable materials, Exhibit D]. The defense believes that the government has contributed substantially to the delay in these proceedings such that Mr. Mitnick's release on bail is necessary in order to preserve his due process rights. Indeed, the defendant submits to this Court that the government's delay in delivering discoverable material is ongoing and that the government is in continued possession of discoverable materials including, but not limited to, the following:
a. Brady Material: As recently as January 21, 1998, co- defendant Lewis DePayne encountered a file among the electronic discovery which was clearly exculpatory in nature. The government had not previously provided this data to Mr. DePayne or his attorney. [See Defendant Lewis DePayne's Reply to Government Response Re Bill of Particulars, at 7-8].
b. Confidential/Proprietary Data: the government has stated that it refuses to disclose some information, presumably otherwise discoverable, under the contention that it contains proprietary or confidential material. As explained in defendant Mitnick's Reply to Government's Opposition to Defendant's Motion for Access to a Computer for Review of Discovery, the government must prove the existence of this alleged proprietary information as an element of the wire fraud charges facing Mr. Mitnick. It cannot, therefore, circumvent its duty to prove this element beyond a reasonable doubt by simply withholding the material and preventing the defense from having an opportunity to refute the question of its proprietary nature. U.S. v. Kai-Lo Hsu, 982 F.Supp. 1022 (E.D.Pa. 1997).
c. Encrypted Data
The government has refused to provide the defendant with any discovery relating to data which is "encrypted" and therefore unintelligible to the government. The government has proposed to make this information available to the defense only if the defendant provides the government with the key to "decrypt" the information. In so doing, the government improperly attempts to condition the defendant's right to review the evidence held against him on the waiver of his Fifth Amendment rights. The dilemma improperly imposed by the government in this regard has contributed to the length of his pretrial detention.
d. Discovery Relating to the Amount of Loss
Count sixteen of the indictment alleges a violation of 18 U.S.C. § 1030(a)(5) in that the defendant:
"knowingly and without authorization, altered, damaged and destroyed information contained in, and prevented authorized use of the computers of USC...caus[ing] losses to one or more persons and entities aggregating more than $1,000."
The Indictment further alleges that the defendant "obtained, or attempted to obtain, proprietary computer software worth millions of dollars." Indictment at 10. Moreover, the government has variously asserted that the amount of loss in this case is in excess of $80 million. Despite numerous and repeated requests, no discovery relating to the amount of loss has been provided to the defense. The suppression of this information constitutes a violation of due process. Brady v. Maryland, 373 U.S. 83 (1963) ("the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment," [emphasis added]. 373 U.S. 87. Clearly, any evidence indicating that the amount of loss in this case equals less than $80 million must be considered both favorable and material to the punishment of the defendant. Due Process mandates that the government disclose this information to the defense. Its failure to do so has contributed markedly to the delay in these proceedings.
e. Duty not to Frustrate Defense
The government has attempted to absolve itself of all discovery obligations by granting the defense access to a morass of information so voluminous and indecipherable that it effectively fails to impart notice of the material's relevance to the Indictment, thereby frustrating the very purposes of discovery under Rule 16.(10)
By the government's own admission, the data, if printed on paper, would literally fill the entire courtroom. Moreover, much of the data is stored in such a fashion (through compression or encryption, for example) that it is effectively inaccessible to the defense even if it could be found among the thousands of computer files with which it is stored. By presenting the discovery in such an incomprehensible fashion, the government has failed to meet its constitutional and statutory duties to ensure that the defendant is informed of the material which it intends to use at trial or which may tend to exculpate the defendant. Moreover, the government's affirmative duty to disclose this evidence pursuant to the requirements of due process, as defined in Brady, supra, clearly encompass a greater effort than simply making this material "available" to the defense. Due process undoubtedly requires that, where discovery is made available, such availability be meaningful. The government's efforts in this respect are tantamount to suppression of the requested information.
Finally, the manner in which the government has proposed for the defendant to review the electronic discovery in its possession offers insufficient indicia of confidentiality to ensure the integrity of his defense. The government has refused to entertain any system of review of this material apart from allowing the defendant to conduct such review within the government's own offices. As evidenced in the attached affidavit for an unrelated search warrant, the government is fully capable of examining, in explicit detail, any review by the defense of the discovery maintained on their computers through "shadow memory" and other devices. [Exhibit E]. The government's terms are clearly unacceptable for the review of this material.
Additional factors exist apart from the prosecution's responsibility for the delay which, through no fault of the defendant, indirectly contributed to the defense access to the computer discovery. These issues, relating to confidential CJA billing submissions, are addressed in the Declaration of Donald C. Randolph submitted concurrently with this motion and filed in camera and under seal. See also, United States v. Ailemen, 165 F.R.D. 571, 593 (N.D.Cal 1996).
3. The Government's Case Is Complex.
In considering "the extent to which the government bears a significant responsibility for the duration of...detention," the court in United States v. Gonzales-Claudio, supra, 806 F.2d at 341, also found that because of the inevitable complexity of the government's legal theory and the volume of evidence involved, it "suffices for present purposes to conclude that the government, even if not deserving of blame, bears a responsibility for a portion of the delay significant enough to add considerable weight to the defendants' claim that the duration of detention has exceeded constitutional limits." 806 F.2d at 342-43. See also United States v. Accetturo, 783 F.2d 382, 388 (3rd Cir. 1986) ("we believe that the due process judgments should be made on the facts of individual cases, and should reflect the factors relevant in the initial detention decision...[m]oreover, these judgments should reflect such additional factors as the length of the detention that has in fact occurred, the complexity of the case, and whether the strategy of one side or the other has added needlessly to that complexity."); United States v. Gallo, 653 F.Supp. 320, 343 (E.D.N.Y. 1986)(because of complexity of government's legal theory and volume of discovery, government bears responsibility for a portion of the delay, citing Gonzales-Claudio.) This Court has deemed this case a complex case for purposes of the Speedy Trial Act. See United States v. Lofranco, 620 F.Supp. 1325, 1326 (D.C.N.Y. 1985).
Indeed the present case is remarkably complex. There are numerous issues of first impression with respect to the law governing discovery obligations, unauthorized computer access, including questions relating to illegal electronic interception by de facto government agents, statutory interpretation of the charged offenses, calculation of damages, jurisdiction and intent. This case is highly technical in nature and involves massive discovery. Accordingly, defense counsel must not only review the voluminous discovery, he must also familiarize himself with technical details in order to coherently explain the case to the jury.
In United States v. Vastola, 652 F.Supp. 1446 (D.N.J. 1987), the defendants were charged with various offenses including drug offenses for which a maximum term of imprisonment of ten years or more was prescribed. At the time of the arraignment, the United States Attorney estimated that it would make some 1,000 hours of tape- recorded evidence available to defense counsel. The Court found the case complex and continued the trial date to March 2, 1987. On December 12, 1986, the defendants requested an enlargement of time in order to properly prepare for pretrial motions and the trial itself. Defense counsel indicated to the Court that some 3,000-3,800 hours of tape-recordings had been provided to the defendants. Reference was also made to other documentary and video evidence that would be provided to defense counsel. Upon consideration of the complexity of the case and the burden on defense counsel to review all potentially relevant evidence, the Court ordered the trial date to be continued to September 8, 1987. The Court, noting that defense counsel had estimated the trial would last six months, held that, barring any further delay, the defendants could be detained for one and a half years before a determination of their innocence or guilt was made. Id. at 1447.
The Court noted that the delay in the trial stemmed primarily from the volume of tape-recordings of wiretaps and the documentary evidence that the defense counsel had to review in order to prepare for pretrial motions and the trial itself. The Court further noted that the government had encountered delays in providing the tapes and transcripts to defense counsel and that "the government has not facilitated the review of the tapes by providing an index of the contents of the tapes."(11) Id. at 1448. The Vastola Court concluded:
"Although the release of these defendants cannot be executed free of all risks that they will not attempt to deal illegal drugs and narcotics, the court finds that the defendants can no longer be detained within constitutional limits. See United States v. Claudio, [806 F.2d 334 (2d Cir. 1986)]. The factors of the prospect of continued detention for up to one and a half years combined with some governmental responsibility for the delay in reaching trial, outweigh the risks of safety to the community and the burden on the government in minimizing that risk under conditions of release."
Accordingly, the Court released the defendants and crafted specific conditions that were designed to assure that the defendants would have no opportunity to deal in illegal drugs and narcotics. The Court observed that defense counsel represented to the Court at oral argument that defendants would comply with any set of release conditions determined by the Court. Id. at 1448-49.
In United States v. Gatto, 750 F.Supp. 664, 673 (D.N.J. 1990), the court noted that due to the unusual nature and complexity of the case, 15 months had passed since the defendants' arraignments and trial was still not scheduled to start until four months hence, "over 18 months after defendants' arraignments, a period significantly longer than the 90 day 'limit' of pretrial detention contemplated under the Bail Reform Act. 18 U.S.C. §3164." Id. at 673. The defendants were highly dangerous, charged with murder, other violent predicate acts, and mafia-related racketeering crimes. The Gatto court found that the government had played a role in the delay of the trial, by filing a motion for an anonymous jury days before a scheduled trial date, by failing to provide certain discovery to defendants before the scheduled trial date, and by notifying the defendants on the eve of the scheduled trial of additional evidence which the prosecution had long possessed. Id. at 671.
However, the Gatto court also found that the defendants had delayed the trial, and stated that the unnecessary delay factor did not weigh in favor of one side or the other. Id. at 675. Nevertheless, the court ruled that the expected detention of the defendants of 21 to 30 months until the end of trial would violate due process and that the defendants had to be released under strict conditions. Id. at 674-76.
Defendant submits that the conditions detailed in Section F, infra, which have been approved in these and other cases, will reasonably assure the safety of the community and the defendant's appearance at trial.
4. The performance of the co-defendant on release conditions favors the release of the defendant.
Courts have looked to the performance of co-defendants who, facing similar charges, have been released prior to trial and have complied with their release conditions. United States v. Gatto, supra at 674-676; United States v. Ailemen, supra, at 599. Here, Mr. Mitnick's co-defendant has been released pending trial and has not fled or violated his release conditions. Such compliance favors the release of defendant on similar conditions. Id.
5. The length of the pretrial detention has approached defendant's sentence under the guidelines.
As noted above, the defendant will have been in custody for 19 months when the trial commences on April 21, 1998. Nineteen months in custody with statutory good time is the equivalent of a 22 month sentence, which under Criminal History Category III, corresponds to the maximum length of imprisonment under Level 12 (15-21 mos.) of the Guidelines. With a base offense level of six, plus two points for more than minimal planning, absent an upward departure, the defendant would have served his time at the time of trial if the loss in this case is between $20,000 and $40,000.
In addition, should the defendant be given credit for the time spent in custody on the North Carolina case, insofar as the North Carolina case is part of the instant offenses, the defendant will have served 27 months in custody which is equivalent to a 31 month sentence which equates to a Level 15 (24-30 mos.) under Criminal History Category III. Again assuming the same base level and upward adjustments for more than minimal planning, the defendant would have served his sentence absent an upward departure, if the loss was between $120,000 to $200,000.
Moreover, if the trial is ultimately continued to September, 1998, for example, the defendant would have served 23 and one-half months in custody on this case, which is the equivalent of a 27 month sentence and which equates to a Level 14 (21-27 mos.) under Criminal History Category III. If everything remains constant, as above, the defendant would have served his sentence if the loss was between $70,000 to $120,000. Finally, if the defendant is given credit for time served for the North Carolina case, he would have served 31 and one-half months (the equivalent of 36 months and a Level 17 (30-37 mos.), under Criminal History Category III). Under the factors discussed above, Mr. Mitnick would have served his sentence upon the commencement of trial if the loss is determined to be between $350,000 and $500,000.
In any event, depending on the actual losses under the Guidelines, the defendant's pretrial detention clearly approaches his sentence under the Guidelines. The government has failed and has refused to provide information regarding any losses or damages in discovery. This factor alone militates in favor of the defendant's release under appropriate conditions. See United States v. Hare, 873 F.2d 796, 801 (5th Cir. 1989) (case remanded for failure to consider, in addition to length of detention at time of ruling, the non- speculative nature of future detention and complexity of the case).
F. SUGGESTED CONDITIONS OF RELEASE
In Vastola, the Court released the defendants on the following conditions:
"(1) Defendants shall be confined to their homes at all times;
"(2) Defendants may only leave their home to consult with their attorneys or to visit a medical doctor; all transportation to and from a visit to counsel or a medical doctor will be approved in advance by the probation officer; all transportation will be direct from the home to the destination; defendants will make arrangements at their own cost for such transportation; defendants' custodians will personally accompany and supervise defendants in all their travel;
"(4) Defendants and their families must consent to random inspection of the home by a probation officer to assure compliance with these conditions; defendants must consent to the use of a pen register to be installed at the government's discretion;
"(6) Defendants must remain in the custody of a designated family member; the custodians must supervise defendants and report any violation of a release condition to the court;
"(8) In order to assure compliance with these conditions, defendants, at their own cost, will telephone the probation officer at 12:00 noon each day, Monday through Friday; the probation officer will call defendants at home by telephone at least once a day at an unscheduled time every day of the week including weekends; the probation officer will make at least two unscheduled visits to defendants' homes each week; (if required by the court, defendants will consent to and wear a monitoring device);
"(10) Defendants along with their relatives and all owners of record shall execute a bail bond in the amount of $150,000.00 secured by the family home to assure their appearance as required, pursuant to General Rules of the United States District Court for the District of New Jersey, Rule 35:
"(11) In the event that any condition of release is violated, defendants will be returned to jail and detained for the remaining period of time prior to the completion of the trial." 652 F.Supp. at 1449.
In Ailemen, the court recommended that the defendant be released to a halfway house, inter alia, on special conditions.(12) In United States v. Patriarca, 948 F.2d 789 (1st Cir. 1991), the District Court ordered the defendant released on the condition that he be subject to 24 hour per day home confinement enforced by video monitoring. The defendant was the former boss of a mafia family. The defendant was forbidden to talk with anybody except people on an approved list and his attorneys, and he was only permitted to have one phone in the house. The First Circuit affirmed the release order.
In United States v. Chen, supra, 820 F.Supp. 1205 (N.D.Cal. 1992) at 1206, 1208, 1212, the court reconsidered its detention of the defendants, who were charged with what the government described as the largest heroin seizure in United States history, and ordered their release subject to numerous conditions.(13)
In United States v. French, 738 F.Supp. 24 (D. D.C. 1990), the defendant was charged with possession with intent to distribute more than 50 grams of cocaine base. Despite the rebuttable presumption triggered by 18 U.S.C. §3142(e), the District Court concluded that with proper monitoring, and housing, the defendant could be released pending trial. In United States v. Carbone, 793 F.2d 559 (3rd Cir. 1986), the defendant was ordered to be at his parent's house from 8:00 p.m. to 6:00 a.m.; a million dollars in residential property was posted by friends of the defendant; and the defendant fulfilled his obligation of daytime employment and night time house confinement. Under these conditions, the defendant satisfied his burden of rebutting the statutory presumption of dangerousness.
In the present case, the defendant's mother and grandmother are willing to post their homes, their only assets, to insure Mr. Mitnick's appearance before this Court. Mr. Mitnick's mother is a waitress and has no other assets to pledge other than her home. Similarly, Mr. Mitnick's grandmother is living on social security but is also willing to post her home on Mr. Mitnick's behalf. [See Declarations of Rochelle Jaffe and Reba Vartanian, Exhibit C]. As in Ailemen, defendant would reside in a halfway house, [see Exhibit F, Declaration of Robert Ochs and accompanying description of facility], and would be subject to such electronic monitoring as the Court wishes to impose. In addition to the staff at the halfway house, numerous individuals are willing to act as third party custodians who agree to report any violation of a release condition to the court and are willing to escort Mr. Mitnick from the halfway house to his attorney's office and to court and to such other locations as the court directs.
Moreover, as in Vastola, Chen and Ailemen, Mr. Mitnick would consent to the placement of a pen register on his telephone; he would surrender his passport, would not take any steps to acquire any travel documents and he would execute a waiver of extradition from any nation where he may be found; he would be restricted to travel solely from the halfway house to the court and to his attorney's office and to the areas necessary to travel among these locations and such other locations with the Court's permission; he would report daily to pretrial services; and he would be subject to any other conditions that this Court deems fit.
The defendant is cognizant of the harsh penalties that may now be imposed for fleeing after being admitted to bail. Further, should he flee he would leave his mother and grandmother destitute. The penalties and repercussions flowing from the defendant's violation of his release conditions would considerably outweigh any incentive to flee.
Finally, the release of the defendant to review discovery at his attorney's office would further judicial economy in obviating the need to allocate special resources at MDC for the defendant and his counsel to review the discovery provided by the government in order to prepare himself and to advise his attorney for trial. This consideration is equally relevant were the Court to require the defendant to travel to the FBI escorted by the U.S. Marshal Service to review the discovery. Given the unique nature of the case, it is imperative for the defendant to review the actual discovery provided by the government in the presence of his counsel. If this review is performed at MDC rather than at his office, counsel will be required to put in additional time to travel to, inspect and supervise the defendant's review of the discovery provided.
IV.
CONCLUSION
For all the foregoing reasons, the defendant must be released pursuant to 18 U.S.C. § 3142(c).
DATED: March _____, 1998 Respectfully submitted,
RANDOLPH & LEVANAS
By: ________________________________
DONALD C. RANDOLPH
Attorneys for Defendant
KEVIN DAVID MITNICK
(1)As set forth herein, as of September 19, 1996, Mr. Mitnick completed his sentence on the two prior cases. However, this release date was not established until June 27, 1997, the date of his sentencing.
(2) 2 The factors listed under section 3142(g) are:
"(1) the nature and circumstances of the offense charged, including whether the offense is a crime of violence or involves a narcotic drug; (2) the weight of the evidence against the person; (3) the history and characteristics of the person including --: (A) the person's character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, history relating to drug or alcohol abuse, criminal history, and record concerning appearances at court proceedings; and (B) whether at the time of the current offense or arrest, the defendant was on probation, parole or other release pending trial, sentencing, appeal, or completion of a sentence. . . ." 18 U.S.C. §3142(g).
See also United States v. Motamedi, 767 F.2d 1403, 1407 (9th Cir. 1985). "[T]he weight of the evidence is the least important of the various factors." Id. at 1408.
(3)"The Bail Reform Act carefully limits the circumstances under which detention may be sought to the most serious of crimes. 18 U.S.C. § 3142(f) (detention hearings available if case involves crimes of violence, offenses for which the sentence is life imprisonment or death, serious drug offenses, or certain repeat offenders.)" United States v. Salerno, supra, 481 U.S. at 747.
"The Bail Reform Act...narrowly focuses on a particularly acute problem in which the Government interests are overwhelming. The Act operates only on individuals who have been arrested for a specific category of extremely serious offenses. 18 U.S.C. § 3142(f)." Id, 481 U.S. 750.
(4)The legislative history notes that:
"Paragraphs (1) and (2) of subsection (f) describe the circumstances in which a pretrial detention hearing is required. Because detention may be ordered under section 3142(e) only after a detention hearing pursuant to subsection (f), the requisite circumstances for invoking a detention hearing in effect serve to limit the types of cases in which detention may be ordered prior to trial.
S.Rep. No. 225, 98th Cong., 1st Sess. 19983 at 20 [emphasis added].
(5) 5 Suggested conditions of release for the defendant are set forth at Section F, infra, pp. 25-31, which include family members posting security, electronic monitoring, confinement to a halfway house, third party custodians, daily reporting and travel restrictions.
(6)These circumstances are detailed more fully in defendant Lewis De Payne's Reply to Government Response Re Bill of Particulars and in defendant Mitnick's Reply to Government's Opposition to Defendant's Motion for Access to a Computer for Review of Discovery.
(7)In this regard, the Court is requested to consider Defendant's Motion for Supplemental Law Library Time and Defendant's Motion for Computer Access in recognition of the prejudice which continues to plague the defense due to Mr. Mitnick's incarceration.
(8)The defendant was arrested in 1982 and released on $5,000 bail. Later, in 1987, the defendant was arrested and released on $5,000 bond. Defendant made all appearances required of him during these proceedings.
(9)The defense has moved to continue the trial date until September, 1998, in order to have adequate opportunity to review the discovery in this case. However, it remains unclear whether such review can be completed prior to even this date. Thus, under realistic circumstances, the defendant faces a pretrial detention of at least 24 months.
(10)See, Fed.R.Crim.P. 16 advisory committee note to 1974 amendment, (maintaining that discovery under the provisions of Rule 16 seeks to "contribute[] to the fair and efficient administration of criminal justice by providing the defendant with enough information to make an informed decision as to plea; by minimizing the undesirable effect of surprise at the trial; and by otherwise contributing to an accurate determination of the issue of guilt or innocence.")
(11)Similarly, the government has not provided such an index to the defense. Although the government has provided a list of the file names of some of the discovery on its computer, without an index of the contents of each file, the file names are of limited, if any, value. Further, the government has only supplied a directory of the files seized from the defendant and a directory of some of the files it has received from the alleged victims.
(12) 12 "1. At least five individuals who are employed or are willing to post a significant amount of property, who have no criminal record, who are lawfully in this country, and who are emotionally connected to the defendant must sign a $300,000 personal recognizance bond on Ailemen's behalf.
"2. Ailemen must reside at ECI, a halfway house in San Francisco.
"3. Ailemen may not leave ECI for any reason other than to make court appearances; when he leaves for that purpose he must be escorted to and from court by ECI staff or by his attorney.
* * *
"8. Ailemen may not take any steps to acquire any travel documents.
* * *
"12. Ailemen must comply with all ECI rules not already covered by the foregoing conditions."
(13) 13 "A. Mike, Kelly, Lucy, the three children of Mike and Kelly, and the three children of Lucy, are all to be restricted to travel solely within such portions of the Eastern and Northern Districts of California to be described by Pretrial Services. This area shall include only the defendants' homes and businesses, the children's schools, this court, the defendants' attorneys' offices, the location where co-defendants Jim Chen and Li Yuen Shing are detained, and the area necessary to travel among these locations.
"B. Mike, Kelly and Lucy shall be subject to electronic monitoring.
"C. Mike, Kelly and Lucy are to remain in the custody of Mike's sister, Mei Lih Chiang.
"D. Mike, Kelly and Lucy are to report daily to Pretrial Services, and are to provide assurances that they and their children are present within the designated areas.
"E. Mike, Kelly, Lucy and their children are to surrender their passports and other travel documents.
"F. Mike, Kelly and Lucy are to execute waivers of challenges to extradition from any nation where they may be found.
"G. The release of these defendants is to be jointly secured by the real property offered by Mike's sister, Mei Lih Chiang; Mei Lih's son Andrew Chiang; Kelly's brother, Tso Cheng Lee; and the family friend Thon-Lian Lan. Prior to defendants' release, defense counsel shall provide declarations from all sureties not present in court on June 17 which clearly indicate that the sureties understand the terms of release and consent to the use of their property jointly to secure the release of Mike, Kelly and Lucy."