DONALD C. RANDOLPH, ESQ., California State Bar Number: 62468
RANDOLPH & LEVANAS
A Professional Corporation
1717 Fourth Street, Third Floor
Santa Monica, California 90401-3319
Telephone: 310/395-7900
Attorneys for Defendant
KEVIN DAVID MITNICK
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
UNITED STATES OF AMERICA,
Plaintiff,
v.
KEVIN DAVID MITNICK, et. al,
Defendants.
CASE NO. CR 96-881-MRP
MOTION FOR COURT ORDER RE: DISCOVERY; REQUEST FOR SANCTIONS
DATE: March 15, 1999
TIME:
COURT: 12
TO ALEJANDRO MAYORKAS, UNITED STATES ATTORNEY, AND TO HIS ASSISTANTS DAVID
SCHINDLER AND CHRISTOPHER PAINTER:
Defendant, KEVIN DAVID MITNICK, by and through his attorney of record, Donald
C. Randolph, hereby brings this Motion for Discovery and Request for Sanctions.
This Motion is based upon the attached memorandum of points and authorities,
the files and pleadings, and any oral or documentary evidence which may be
adduced at hearing on this matter.
DATED: February 22, 1999
Respectfully submitted,
RANDOLPH & LEVANAS
By: ________________________
Donald C. Randolph
Attorneys for Defendant
Kevin David Mitnick
MEMORANDUM OF POINTS AND AUTHORITIES
I.
INTRODUCTION
The government has failed to comply with its constitutional and statutory
discovery obligations. The defense respectfully requests that this Court
sanction the government by granting a reasonable continuance of the trial date
and ordering Mr. Mitnick be released on bond. Furthermore, Mr. Mitnick
respectfully requests that this Court order the government to produce forthwith
the following:
1. All Rule 16 evidence;
2. All exculpatory evidence as defined by Brady v. Maryland 373 U.S. 83 (1963)
and its progeny;
3. All evidence of promises made to potential witnesses pursuant to Giglio v.
United States, 405 U.S. 150 (1972) and its progeny.
4. An Exhibit list which conforms with the Court's June 3, 1998 Pretrial
Discovery Order.
II.
STATEMENT OF FACTS
In October, 1996, the defense requested a copy of all discovery within the
scope of Rule 16 Fed.R.Crim.P., Brady v. Maryland, 373 U.S. 83 (1963) and
Giglio v. United States, 405 U.S. 150 (1972), and their progeny. Exhibit A.
On October 8, 1997, the government represented that it had complied with all of
its discovery obligations as required by Rule 16, Brady, and Giglio. See
Reporter's Transcript 10/8/97 at 7; Exhibit B. On November 17, 1998, the
government produced its Witness Statements. Included within these statements
was Brady material not previously disclosed to the defense, as well as
information indicating the existence of additional Giglio material. The
defense immediately renewed its request for full disclosure of all Brady and
Giglio information. Exhibit C. On December 8, 1998, in response to the
defendant's renewed discovery demands and in contradiction to its previous
representations to this Court that it had fully complied with all of its
discovery obligations, the government claimed that it had no obligation to
produce Giglio information to the defense at this point in time. Exhibit D.
On January 20, 1999, the government produced a copy of the plea agreement
entered by Ronald Austin on February 27, 1992. Government counsel confirmed
that the plea agreement allowed Mr. Austin to receive a more lenient sentence
based upon his assistance in the prosecution of Kevin Mitnick. Exhibit E. The
government offered no explanation regarding its failure to provide this Giglio
material in a timely manner. On January 20, 1999, the government produced a
copy of its tentative Exhibit List. Exhibit F. The Exhibit List referred to
information falling within the scope of Rule 16 which, it appears, has yet to
be provided to the defense. For example, Exhibits 1 14, 253, 463, and 716 of
the government's tentative Exhibit List are computer files allegedly seized
from a laptop computer owned by Mr. Mitnick in Seattle, Washington. These
files were not included in the copies of the electronic evidence previously
provided to the defense.
On February 8, 1999, the defense inquired as to the apparent discrepancies
between the evidence it had been provided and the government's tentative
Exhibit List. Exhibit G. To date, the government has not responded to this
inquiry.
III.
ARGUMENT
A. THE GOVERNMENT HAS FAILED TO PRODUCE EVIDENCE AS REQUIRED BY THE
CONSTITUTION, STATUTORY LAW, THIS COURT'S ORDER, AND CONSISTENT WITH ITS OWN
REPRESENTATIONS.
Disclosure of relevant materials promotes the proper administration of criminal
justice. In our adversary system for determining guilt or innocence, it is
rarely justifiable for the prosecution to have exclusive access to relevant
facts. See Dennis v. United States, 384 U.S. 855, 870-71 (1966). As set
forth herein, the government misrepresented the nature of its compliance with
its discovery obligations. In fact, the government has failed to comply with
its discovery obligations as defined by the constitution, statutory law, and
this Court's express Order.
1. Giglio Information
The government has been delinquent with respect to the disclosure of Giglio
information, as evidenced by its failure to produce information relating to its
dealings with Mr. Austin. The government now acknowledges that in 1992 it made
promises of leniency to Mr. Austin, an individual who the government is
considering calling as a witness in this case, in exchange for information
relating to the prosecution of Mr. Mitnick.
Given its failure to disclose the above information until specifically
requested by the defense, there is good reason to believe that additional
Giglio information may be outstanding. *1 For this reason, the defense
respectfully requests that this Court order the government to review its
records and produce all information falling within the purview of Giglio
forthwith.
2. Brady Information
The government has been derelict in its duties to produce all exculpatory
evidence relevant to either guilt or sentencing pursuant to Brady v. Maryland.
The government's disclosure of the witness statements revealed evidence that
numerous "hacking" incidents were reported at some of the victim companies in
this case during the relevant time period. These reports, prepared as far back
as 1994, further indicate that the crimes alleged against Mr. Mitnick may have
been caused by another individual. Exhibit H. It is hard to conceive of
evidence which could be considered more exculpatory than statements which tend
to demonstrate that an individual other than the defendant may have committed
the alleged crime. Nonetheless, the government failed to produce these
statements during its disclosure of Brady material. *2
3. Rule 16 Materials
The government has failed to comply with its discovery obligations pursuant
to Fed.R.Crim.P. 16. The government has produced a tentative exhibit list
indicating some 1,708 items which it intends to introduce at trial. Included
within this exhibit list is evidence which, to date, has never been provided o
the defense. *3 On February 8, 1999, the defense requested that the government
verify whether it had provided all of the data listed in its Exhibit List to
the defense. Exhibit G. The government's reply to this question was
non-responsive. Exhibit I.
4. June 3, 1998 Discovery and Pretrial Management Order
In violation of this Court's June 3, 1998 Order, the government has failed
to identify and/or produce to the defense those exhibits it actually intends to
introduce at trial.
a. Encrypted Files
On June 3, 1998, this Court ordered that the government was not obligated to
provide encrypted computer files to the defense which the government has been
unable to decrypt. Thereafter, the government provided the defense with a copy
of evidence seized from computers allegedly owned by Mr. Mitnick. The
government indicated that this evidence did not include encrypted computer
files which it had been unable to decrypt. Exhibit J. Nonetheless, included
in the evidence provided to the defense are files stored in encrypted format. *4
It must be deduced, therefore, that the government had successfully
deciphered these files prior to producing them to the defense. The government
did not, however, provide the defense with any deciphered (or "plain-text"),
version of these files. *5 Presumably, the government does not intend to
introduce encrypted files at trial given that these files are entirely
unintelligible. Indeed, the government previously argued that, for this very
reason, it should have no obligation to produce any encrypted files which it
could not decrypt to the defense. Assuming that the government only intends to
introduce the plain-text version of any encrypted files at trial, the data
provided to the defense does not constitute an accurate representation of the
evidence the government will seek to introduce as evidence. The government
has, therefore, withheld from the defense data which it intends to introduce at
trial in violation of the Court's Order. The Court should sanction the
government for its withholding of evidence it intends to introduce at trial by
excluding the introduction of any data, including the "plain-text" version of
any encrypted file it seeks to introduce, which was not previously provided to
the defense in accordance with this Court's Order.
b. Over-Inclusive Computer "Folders"
The government is in further violation of this Court's June 3, 1998 Order in
that it has failed to describe, with any reasonable degree of particularity,
which exhibits which it actually intends to introduce at trial. Pursuant to
the Court's Order, the government was required to produce "a tentative list of
exhibits the government intends to introduce at trail during its
case-in-chief." The Exhibit List of 1,708 items which was actually produced is
deficient in that it lists certain computer files which are actually folders
containing hundreds of additional files. Taking one example, Exhibit 156 does
not refer to a single computer file, but rather a folder containing 82 separate
files. Each of these 82 individual files consists of the equivalent of
numerous written pages of information. The government has provided no
indication as to which of the 82 individual files contained within this
particular folder, nor any portions thereof, it intends to introduce at trial.
There are numerous folders like Exhibit 156 which are included in the
government's Exhibit List.
The government's reference to folders of information in this manner
contravenes the letter and spirit of the Court's Order which was intended to
identify those items of evidence the government actually intends to introduce
at trial.
IV.
CONCLUSION
Mr. Mitnick respectfully requests that this Court order the
government to immediately produce all evidence according to its legal
obligations. Specifically, the defense requests that the Court Order the
government to produce the following:
1. All evidence described pursuant to Fed.R.Crim.P. 16;
2. All exculpatory evidence as defined by Brady v. Maryland, 373 U.S. 83 and
its progeny;
3. All evidence of promises made to potential witnesses pursuant to Giglio v.
United States, 405 U.S. 150;
4. An Exhibit List in conformance with the Court's June 3, 1998 Discovery and
Pretrial Management Order;
5. All exculpatory evidence in the possession of the United States government,
regardless of office or judicial district, which in any way relates to these
charges. In the alternative, Mr. Mitnick requests that this Court require the
prosecution to declare that no such evidence exists.
In addition, Mr. Mitnick respectfully requests that the Court sanction the
government by excluding from introduction into evidence:
1. Any information or other material which the government has not provided
to the defense as of the date of this filing, or according to its obligations
as defined by this Court's June 3, 1998 Order. In particular, Mr. Mitnick
requests that the government be precluded from introducing any "plain-text"
version of any encrypted computer files which have not been produced to the
defense as of this date; and
2. Any exhibit which has not been identified with reasonable particularity
in the government's tentative Exhibit List.
Finally, Mr. Mitnick respectfully requests that this Court remedy the
government's delays in complying with its discovery obligations by granting a
reasonable continuance of the trial date in this matter and ordering Mr.
Mitnick released on bond.
DATED: February 22, 1999 Respectfully submitted,
RANDOLPH & LEVANAS
By: __________________________
Donald C. Randolph
Attorneys for Defendant
KEVIN DAVID MITNICK
*1 Mr. Mitnick will move for an order requiring the government to produce all
information relating to the scope of Mr. Austin's participation in the
investigation of Mr. Mitnick, his contact with Mr. Mitnick's prior attorney,
and the government's knowledge thereof under separate cover.
*2 The defense is further aware of investigations of Mr. Mitnick which have
occurred in both the Northern and Southern Districts of California. The
defense respectfully requests that this Court order the government to produce
all exculpatory evidence in t he possession of the United States government,
regardless of office or judicial district, which in any way relates to these
charges. In the alternative, Mr. Mitnick requests that this Court require the
prosecution to declare that no such evidence exists.
*3 For example, Exhibits 114, 253, 463, and 716 of the government's tentative
Exhibit List refer to electronic files which are not included in any of the
evidence provided to the defense. 4Among numerous others, Exhibits 147, 148
and 160 have been provided to the defense in their encrypted format only.
5According to the government and pursuant to the Court's Order, only those
encrypted files which had been decrypted were provided to the defense.