UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
- - -
HONORABLE MARIANA R. PFAELZER, JUDGE PRESIDING
- - -
UNITED STATES OF AMERICA, :
PLAINTIFF. :
:
VS. :
:
KEVIN DAVID MITNICK, : NO. CR. 88-1031 MRP
DEFENDANT. : CR. 95-603 MRP
REPORTER'S TRANSCRIPT OF PROCEEDINGS
LOS ANGELES, CALIFORNIA
MONDAY, JUNE 9, 1997
BETH E. ZACCARO
OFFICIAL COURT REPORTER
414 UNITED STATES COURTHOUSE
312 NORTH SPRING STREET
LOS ANGELES, CALIFORNIA 90012
(213) 626-2622
APPEARANCES:
FOR THE UNITED STATES OF AMERICA:
NORA M. MANELLA
UNITED STATES ATTORNEY
STEVEN E. ZIPPERSTEIN
ASSISTANT UNITED STATES ATTORNEY
CHIEF, CIVIL DIVISION
DAVID SCHEPER
ASSISTANT UNITED STATES ATTORNEY
CHIEF, CRIMINAL DIVISION
BY: CHRISTOPHER PAINTER
ASSISTANT UNITED STATES ATTORNEY
1130 UNITED STATES COURTHOUSE
312 NORTH SPRING STREET
LOS ANGELES, CALIFORNIA 90012
FOR THE DEFENDANT:
DONALD C. RANDOLPH, ESQ.
1717 FOURTH STREET
THIRD FLOOR
SANTA MONICA, CALIFORNIA 90401
LOS ANGELES, CALIFORNIA, ON MONDAY, JUNE 9, 1997
BEGINNING AT APPROXIMATELY 2:20 P.M.
THE CLERK: Item Number 18, criminal 88-1031 and 95-603. United
States of America versus Kevin David Mitnick. Counsel,
please make your appearance.
MR. PAINTER: Christopher Painter for the government, your Honor,
and with me at counsel table is Frank Gulla, U.S.
Probation Officer.
MR. RANDOLPH: Good afternoon, your Honor, Donald Randolph on behalf
of Kevin Mitnick who is present with counsel.
THE COURT: I will say, Mr. Randolph, that I haven't the slightest
idea what you're doing because I never had a chance to
read the papers.
You have been in here lots of time before and you have
heard me say and I say it for you again, that that is
what Sunday is all about. I spend Sunday reading what
I have to read because otherwise I wouldn't be able to
come in here and do a calendar as long as the one I
have on Monday, and so I don't know exactly what it is
you have done beyond what you filed on Friday.
MR. RANDOLPH: The only things that I filed this morning, your Honor,
were two declarations which hopefully if counsel
agrees that that may be the substance of two witnesses
then I will not need to call those witnesses, and they
were two short -- actually, one was a two page
declaration and one was a one page declaration, and
then I filed a document which I intended to use as a
summary exhibit during the oral argument at the
conclusion --
THE COURT: So I see.
MR. RANDOLPH: -- of the presentation today.
THE COURT: But if you were going to use that as a summary
document, I want to come forward and say to you I
haven't looked at it.
MR. RANDOLPH: I understand. It is not necessary for the court to
review that document prior to the presentation of
evidence this afternoon, and I understand that the
court -- obviously, it would have made better sense
to try and get that document in before last week.
Unfortunately the two declarations -- we didn't have
that information until Saturday and Sunday of this
week-end and the summary includes everything
up-to-date through yesterday's receipt -- we were
essentially investigating this case and talking to
witnesses through yesterday afternoon.
THE COURT: The thrust of what you are going to present is that
he did not abscond.
MR. RANDOLPH: That's correct, your Honor.
THE COURT: Now that you have those two documents in that you
have identified in the presentation you just made, do
you not intend to call those two witnesses?
MR. RANDOLPH: If I may talk with counsel momentarily --
MR. PAINTER: Your Honor, I can represent that with respect to those
two witnesses those declarations can come in. We do
not need to have those present. Hopefully we can
streamline this process today.
THE COURT: So what do you intend to do?
MR. RANDOLPH: Your Honor, I intend to call two witnesses. One would
be very short, probably 5 minutes duration. That would
be U.S. Marshal Brian Salt -- he is in the courtroom
-- and then Mr. Gulla.
THE COURT: And what do you intend to do?
MR. PAINTER: Your Honor, actually I believe that the government
would call Mr. Gulla to give the entire background,
and I think that Mr. Randolph would cross examine him.
I think that is the way it would go.
I understand that Mr. Randolph wants to call Deputy
Brian Salt and then there is one additional witness
from the department of justice, an investigator there
who will testify about surveillance conducted on
December 24th. That should be about five minutes,
your Honor.
THE COURT: Then I suggest that we just adjourn your matter for
about 10 minutes, and then we will take it up.
MR. RANDOLPH: That's fine, your Honor. May I request that I be
allowed to call U.S. Marshal Salt out of order just
because his testimony is very short and then he can
be gone.
THE COURT: Yes.
MR. RANDOLPH: Thank you very much.
THE COURT: So I will be back to you in about 10 minutes.
MR. PAINTER: Thank you, your Honor.
MR. RANDOLPH: Thank you.
THE COURT: It will be more like five minutes, and I will be back
with the file.
(RECESS.)
THE COURT: All right.
MR. PAINTER: Your Honor, before we call the first witness -- before
I believe the defense calls the first witness, I just
wanted to very shortly clarify and hopefully simplify
the issue that is going to be presented today to the
court. The government does not contend that the
defendant left the jurisdiction before December 7th.
The government is not aware of the defendant's
whereabouts during that time, although it is
undisputed apparently that he was in Las Vegas during
the period of November 27th to December 4th, and our
contention is that it is without the probation
officer's permission.
MR. RANDOLPH: I am sorry, your Honor. May the witnesses be excluded
during this portion of the presentation?
THE COURT: Please.
(WITNESS EXCLUDED FROM THE COURTROOM..)
MR. PAINTER: What the government does contend, your Honor, is that
beginning at least on November 9th of 1992 defendant
absented himself from supervision from the probation
officer.
THE COURT: Now, since you are making this abundantly clear, you
claim that he was in Las Vegas from the 27th to the
4th of December.
MR. PAINTER: That is what the defense claims and they have
submitted documentation, phone records, etc., showing
that.
THE COURT: And you don't disagree with that?
MR. PAINTER: No; apparently he was. However, they claim he had the
permission of the probation officer and our claim is
that is not true, and we intend the probation officer
to testify.
THE COURT: Let me go back for just a minute.
MR. PAINTER: Certainly.
THE COURT: You do not disagree with the conclusion that he was there.
MR. PAINTER: What we -- correct.
THE COURT: Now listen to me because this is very important. This
file is endlessly long --
MR. PAINTER: I understand.
THE COURT: -- at this point. everybody has been all over the lot
with respect to contentions.
MR. PAINTER: I understand that.
THE COURT: Now listen to me again. You, representing the
government, do not disagree with the conclusion that
from the 27th of November to the 4th of December he
was in Las Vegas.
The only thing that you disagree about is permission.
MR. PAINTER: That's correct, your Honor.
THE COURT: All right.
MR. PAINTER: And essentially what the government is trying to show
and hopes to show through the testimony today is that
from a period beginning at least about November 9th
and then thereafter the defendant essentially acted
like supervision wasn't there, absented himself from
supervision, didn't submit reports, never contacted
his probation officer.
We believe that November 27th to the December 4th
period is indicative of that because he never got
permission. He never checked in. He never called.
We will present that through testimony, but I wanted
to make sure that we focus the issue on what the
government is hoping to show here.
THE COURT: But you do not -- or you take the position that he
fled the jurisdiction when? In December?
MR. PAINTER: We take the position that he made himself unavailable
from supervision beginning November 9th.
We don't know when he was in the jurisdiction, when
he was outside the jurisdiction.
We do know that from the period November 27th to
December 4th by his own records and proffer he was not
in the jurisdiction, and that is during a period I
believe the deputy marshal went to try to serve the
probation warrant, your Honor.
THE COURT: Now, once again, he did not -- it is not your position
that he absconded from the jurisdiction.
MR. PAINTER: It is not -- we do not -- we cannot show that he fled
the jurisdiction, absconded from the jurisdiction.
Our contention is he absconded from supervision,
your Honor. That is the distinction, I guess.
It doesn't matter even if he was in his home, although
we don't know that he was. We do know that from
November 9th onward despite attempts by the probation
officer, he just absented himself from any kind of
supervision at all.
THE COURT: And that is what we are trying.
MR. PAINTER: That is what the government is trying to prove, your
Honor, and with that the defense wants to call Brian
Salt, and we can begin.
THE COURT: Do you want to call anybody?
MR. PAINTER: We want to call the probation officer but the defense
had asked to call Brian Salt out of order. The
probation officer, however, had an accident, a car
accident this morning.
I think it would be better if we could call him first
and hopefully get him on and off the stand, if that
is acceptable.
MR. RANDOLPH: Your Honor, Mr. Salt is going to be a very short
witness. However, Mr. Gulla will be -- he is going to
be the only other witness for these proceedings, so
that is why I asked to call Mr. Salt.
THE COURT: Yes; call him.
MR. RANDOLPH: May I respond briefly to what counsel has just
articulated to the court because it is significantly
different than what we have been dealing with up to
this point in time.
THE COURT: That's true.
MR. RANDOLPH: So if the court will bear with me --
THE COURT: If you read the file, you would know how different
it is.
MR. RANDOLPH: I am sorry, your Honor.
THE COURT: And if you had read the file as many times as I have
you would know how different it is.
MR. RANDOLPH: I probably have, your Honor, and that is why I am
just commenting that I have been dealing with the
government's objection from the first point in time
when they alleged that my client was a fugitive. They
placed that factual issue in contention when they
filed their sentencing memorandum last October, and
although I think the government -- after this
evidentiary hearing, it will be shown that he is not
a fugitive from the jurisdiction. In fact, the
government is taking the position, as I understand
what counsel said, that he didn't abscond even from
the jurisdiction, that the only manner in which he
allegedly absconded was that he didn't respond to
the probation officer's two requests for contact in
November.
That is not what I understand is the government's
position now, and I will focus my cross-examination
of Mr. Gulla in that respect, but we have -- all the
case law and all the briefing that we have done to
date on this issue has been focused.
The cases talk about what happens when someone is a
fugitive, whether or not supervised release tolls or
doesn't toll, and particularly the case which is the
linchpin of the government's arguments that it tolled
because the defendant in Crane was a fugitive.
The government has argued that Mr. -- that is the
most recent ninth circuit case on this issue.
The government has argued that just as in Crane Mr.
Mitnick was also a fugitive, and therefore, his
supervised release didn't terminate on December 7th
as the defense contends, but that it tolled on
December 7th because he had fugitive status.
Crane -- the facts of Crane are that the defendant
in that case was in semi custody, that is to say, he
was in a halfway house, and he left without warning.
THE COURT: I can read.
MR. RANDOLPH: All right. I am just saying, your honor, that that's
a fugitive. He disappeared from the scene where he
was ordered to be living in a halfway house.
That is the basis of the Crane case when they refer
to him as a fugitive.
In this case we have been dealing with the government
repeatedly calling my client a fugitive, and now the
name of the game has changed, so I will argue at the
conclusion of this hearing how dramatically that
affects the court's ruling, but perhaps we should get
on with it with the witnesses.
MR. PAINTER: Your Honor, can I just very, very briefly respond to
that just so we are absolutely clear.
THE COURT: Absolutely not.
MR. PAINTER: I think maybe the court misunderstands our position
just a little bit, but, your honor, I can hold it to
the end.
THE COURT: All right. Now, I am going to let you respond, and
this is the last time I am going to let anybody
change their position.
MR. PAINTER: Your Honor, we believe that Mr. Mitnick did, in fact,
become a fugitive it is clear for two and a half years.
THE COURT: Did become a fugitive when?
MR. PAINTER: We do not know exactly when he left the jurisdiction.
We do know that he stopped obeying any kind of
supervision on November 9th.
We don't know exactly when he left the jurisdiction
but we also know -- and there will be testimony that
his defense counsel called the probation officer in
January of '93 offering to turn himself in.
We know that there were false names used.
THE COURT: Mr. Painter, let me say something to you.
MR. PAINTER: Certainly.
THE COURT: When a person is accused -- when an allegation is
made that someone is in violation of either probation
or supervised release, someone has to write in words
the violation. It must be typed up, put in the
pleadings as a violation in the same way that someone
is indicted, so that the individual who is accused of
doing that can plead to it.
Now, once it is typed up, that is what he is pleading
to. Now, what is he pleading to here?
MR. PAINTER: I guess -- I am sorry, your Honor. I don't understand.
THE COURT: What is the violation we are looking at here?
MR. PAINTER: The violations we are looking at, your Honor, are the
ones that he has already admitted to, which is the
possession of false documents in North Carolina plus
the two that your Honor signed earlier than that
which were the break-in to the pacific bell system
and associating with Lewis De Payne, a cohort at the
time, and the government's position has been that at
some point he stopped submitting to supervision.
The case was Enrique that says you can't get credit
when you are not being supervised, and all I am
saying is -- we are not saying that he never became
a fugitive. there was a long period of time where we
believe he was on the run, and he was using false
I.D.'s which continued to toll the period after he
failed to check in with the probation officer at all
for a long period of time.
That's all I am saying, your Honor.
THE COURT: Shall we?
MR. RANDOLPH: Yes.
THE COURT: Let me go back to this for just a minute, and part of
what Mr. Randolph has decided to say is that he
couldn't have been in violation because the supervised
release was over; is that right?
MR. PAINTER: That is Mr. Randolph's argument, correct.
BRIAN SALT, SWORN.
THE CLERK: Please be seated. Please state your true full name
and spell your first and last name for the record.
THE WITNESS: First name is Brian, B R I A N, middle name Patrick,
last name Salt, S A L T.
D I R E C T E X A M I N A T I O N
BY MR. RANDOLPH
Q. Mr. Salt, what is your official capacity?
A. Deputy United States Marshal.
Q. Were you employed in that capacity in November and December, 1992?
A. Yes, I was.
Q. And specifically, were you involved with the serving of supervised release
warrants as part of your duties?
A. Yes, I was.
Q. Was it just you and another person who were involved in doing that sort of activity?
A. Yes, it was. I was the deputy in charge of the parole/supervised
release/probation/warrant caseload during that time period.
Q. Okay. Sometime in November 1992, did you have occasion to be requested to serve
a warrant for a supervised release violation-- serve that warrant on Kevin Mitnick?
A. Yes, I was.
Q. Now, in November 1992, on one occasion did you go out to the location you believed to be Mr. Mitnick's residence?
A. I am sorry. Did you just give a date?
Q. No. I just gave the month -- sometime in November.
A. Yes, I did.
Q. And would that have been in the latter portion of November, to the best of your
recollection?
A. Yes, it was.
Q. Are you able to recall at this time the exact date that you went out on this first occasion to
serve this warrant?
A. No. I don't remember it.
Q. Did you select that particular day to go out simply because it was convenient to your schedule
to be in that neighborhood at that particular date?
A. Yes, I did.
Q. You and I have discussed your potential testimony in this case last week; is
that correct?
A. On Friday.
Q. Now, did you have -- at the end of November of 1992 when you went out there, you went to the
door and knocked on the door, that sort of thing?
A. Yes.
Q. If I showed you photographs of this particular location, do you think you would be able to
recognize them?
A. I am not sure. I have a visual image in my mind of what it looked like, but I am not sure.
MR. RANDOLPH:
All right. Your Honor, I would ask that the clerk put defense exhibit Premarked
D for identification before the witness. There is also a copy for the court's convenience.
Q. Sir, would you look at those photographs and see if that refreshes your recollection as to
whether that is the location you went to on that date?
A. Yes, it is.
Q. On that particular day you went to the door of Apartment 213?
A. The pictures you have depict 213. I could not remember the exact
apartment on that date, but it does look like the apartment I went to.
Q. All right. Were you able to determine whether anybody was home on
that occasion?
A. The November -- end of November date there was a vehicle
there. Lights were not on. No one answered the door when I knocked on it.
Q. Do you recall what time of day or night it was?
A. Early morning, approximately 7:00.
Q. Were you able to look in the window and determine whether there appeared to be
furniture, the types of things that you would expect to see if someone was still
residing in that apartment?
A. Yes. I believe I did on that date.
Q. And what did you see?
A. There was furniture in the household.
Q. So you concluded that someone was living there but that person wasn't there on that
occasion; correct?
A. I concluded that there was furniture in there. Somebody was possibly living
there. No one was home.
Q. All right. The next time you went was December 4th, 1992; correct?
A. Correct.
Q. Now do you recall what time of day or night that particular occasion was?
A. Early morning again.
Q. All right. On that occasion did you see a vehicle outside?
A. No, I did not.
Q. Incidentally, the vehicle you made reference to earlier, was that
a particular type of vehicle that you associated with Mr. Mitnick?
A. I believe it was Nissan 240SX. Five years ago, I believe that is what he was
driving at the time, and that is the information I had received from his
probation officer, and on the November time I went out there it was there.
A. In December it was not there.
Q. All right. Other than that, were
your conclusions -- did you knock on the door -- same thing as before; nobody was home?
A. The only difference this time was the lights were on.
No one answered on that occasion either.
Q. Were you able to see inside as to whether or not anybody was living there?
A. Furniture was still there. Lights were on. I cannot tell if anyone was living there
or not.
Q. I take it you have no personal knowledge whether the lights go
on and off by virtue of an automatic switch or not; correct?
A. None whatsoever.
Q. Now after those two occasions, did you draw any conclusions
as to whether or not Mr. Mitnick was residing at that residence?
A. At that point I didn't know if he was home and hiding. I didn't know if he
was living there. I didn't know if he was out somewhere else. I had no
conclusions at all. My assumption was he was still living there and was
either hiding from me and not answering the door or he just wasn't home.
Q. All right. Then at any time did you have a conversation with -- I'll
withdraw that. At any time did you state to anyone that it was clearly
established that on or before December 4th, 1992, Mr. Mitnick was no
longer residing at his official residence in Calabasas, California?
A. No, I didn't.
MR. RANDOLPH:
I wonder if the clerk would put exhibit a before the witness, please.
THE CLERK: A.
BY MR. RANDOLPH:
Q. Sir, if you would turn to Item F under Exhibit A, do you see a letter dated April 11, 1997?
A. Yes, I do.
Q. And at the bottom of that letter, does that appear to be a letter from the
probation office to this court?
A. It seems to be a copy of a letter that was sent.
Q. All right. I direct your attention to the last paragraph on
the first page where it reads as follows:
"the U.S. Marshals
Service advises us that it was clearly established that on or before
December 4th, 1992, Mr. Mitnick was no longer residing at his official
residence in Calabasas, California." Do you see that
statement?
A. Yes , I do.
Q. Did you ever make a statement to Mr. Gulla in that regard?
A. No, I didn't, and no one else would have because
it was my case, and I would have been the one who made the contact.
Q. Finally, sir, on or about December or on December 10, 1992, did you again
go to the residence at 5736 Los Virgenes Road, Apartment 213, Agoura,
California?
A. I went to the address known as his. I am not sure what the
address was, but it is the same address I went to on previous occasions.
Q. At that time did you interview a person who identified herself as
Shelly Jaffe?
A. Yes, and her boyfriend, also.
Q. And subsequent to
that time have you -- in fact, today did you have an opportunity to review
an f.b.i. 302 of a report of that interview on that date?
A. I first saw that report approximately 10 to 15 minutes ago when you handed it to
me.
MR. RANDOLPH:
All right. I wonder if Exhibit B can be placed before
the witness, please.
Q. Does that appear to be the report that I asked you to review a few minutes ago?
A. Yes, it is.
Q. And does that report appear to accurately reflect the conversation that
you had with --
THE COURT:
Just a minute. You show me where B is, Mr. Flores.
MR. RANDOLPH:
This is a separate document, your Honor.
THE COURT:
Oh, this one. All right.
BY MR. RANDOLPH:
Q. Sir, would you look at that report again and confirm that that is the
report that you reviewed.
A. This is the report that you handed me 10 to 15 minutes ago.
Q. All right. Does that report accurately reflect the
statements that Miss Jaffe made to you on December 10th, 1992?
A. By and large. There is a few things in here I don't quite remember that were
asked, and there is a few other things I do remember, but this is not my
report, so in a nutshell it is basically the text of the interview.
Q. All right. Directing your attention to the third paragraph from the top,
do you see it reads, "jaffe advised that she and Kevin had an
argument approximately 3 days before the instant interview and Kevin had
left." Do you recall Miss Jaffe making that statement to you or
words to that effect?
A. Yes, I do.
Q. Then the last statement
in that paragraph, "Jaffe said that Kevin was done with probation,
was not aware of any warrant for his arrest." Do you recall
that she made a statement to that effect to you on that date?
A. Something close to that, and I believe she stated that it was her
impression that he was done with probation and that he had moved or left
after probation ended, so it is basically the same.
MR. RANDOLPH:
All right. Thank you. Nothing further.
C R O S S - E X A M I N A T I O N
BY MR. PAINTER.
Q. Just briefly. On the statement that Ms.
Jaffe made about her having an argument with the defendant and him
leaving, I think that report says "about 3 days ago." Do you
recall if it was "about 3 days ago" or what the exact words
were?
A. I don't remember the exact words. I know it was days prior. I
don't know if she said it was a week, a day or 5 days. I don't quite
remember, but I did advise her at that same moment that we had been out
there prior to that date and that he had not been there and so the warrant
was still a good warrant.
Q. Did you have a conversation this morning with
the probation officer, Frank Gulla, or actually I guess early this
afternoon, clarifying whether or not you had established that the
defendant was no longer at his residence on December 4th?
MR. RANDOLPH:
Objection, irrelevant to these proceedings, your Honor,
what he discussed with Mr. Gulla today. Mr. Gulla is going to
testify.
MR. PAINTER:
Your Honor, there was a statement elicited by the defense of the witness.
THE COURT:
Go on.
THE WITNESS:
I did speak to him this afternoon, and I did clarify
that I never made that remark to him -- that I had
established that he had moved prior to December 14th.
MR. PAINTER:
Your Honor, for the record, the government is not relying on that
statement in the probation officer's letter, and we informed
defense counsel of that last week. No
further questions, your Honor.
THE COURT:
Anything else?
MR. RANDOLPH:
No, your Honor.
THE COURT:
Thank you. You may step down.
THE WITNESS:
Thank you, your Honor.
THE COURT:
Just leave them there.
MR. PAINTER:
Your Honor, at this point the government would like
to call Frank Gulla, the probation officer.
FRANK GULLA, SWORN.
THE CLERK:
Please be seated. Please state your true full name and spell
your last name for the record.
THE WITNESS:
Frank J. Gulla, G U L L A.
DIRECT EXAMINATION
MR. PAINTER.
Q. Mr. Gulla, you work with the United States Probation
Office; is that correct?
A. Yes, sir.
Q. And one of your duties
is to supervise people on supervised release, defendants on supervised
release; is that right?
A. Correct.
Q. And how long have you been performing these duties?
A. I came to Federal probation in 1975.
Q. And among the individuals you supervised was the defendant, Kevin Mitnick;
is that right?
A. Yes, that's correct.
Q. During what period were you the probation officer supervising Mr. Mitnick?
A. From December 1989
to about February 1991 and then from about February 1992 to the end of the
period.
Q. After that. Now just as a point of clarification, Mr. Gulla, in
a letter to the court you had stated at one point that you
understood from the marshals that they had conclusively established Mr.
Mitnick did not live at his residence after December 4th of 1992.
A. Yes.
Q. Is that correct? You subsequently had a discussion with the
Marshal in this case; is that right?
A. Yes.
Q. Is it now your opinion that that is not correct?
A. Correct. It is my opinion that what I
represented to the court at that time is not correct.
Q. You don't know if Mr. Mitnick was or was not here on December 4th?
A. No. I do not know if he was here or not.
Q. You know he did not contact you, though; is that correct?
A. That's correct.
Q. Now, among the -- back to a more
general note -- among the things that you did as a probation officer is
you receive monthly reports from the different people you supervised; is
that right?
A. Yes, sir.
Q. Is that a normal function of supervision?
A. Yes, sir.
Q. What is the purpose of those monthly reports?
A. Well, it is one way of remaining in contact with the person on
supervision. The report is pretty inclusive. It reflects the activities of
the person under supervision for the previous month, where they live,
where they are working, how much they may have earned, if they had any law
enforcement contact, if they were arrested in the month for any given
reason, that sort of stuff.
Q. Now, until the report for September of 1992,
had the defendant, Kevin Mitnick, actually submitted these supervision
reports as he was supposed to?
A. Yes, sir.
Q. Beginning in
September of 1992, the report for September which I guess would be due in
the beginning of October; is that right --
A. Correct.
Q. -- did you receive a report for September?
A. No, sir.
Q. For October?
A. No, sir.
Q. For November?
A. No, sir.
Q. And that was different than what the defendant had been doing all along?
A. Yes. He had been pretty conscientious up to that point.
Q. Now, another duty of a supervisee
is to inform the probation officer of any travel out of the district; is
that correct, sir?
A. Yes.
Q. And did Mr. Mitnick travel outside the district to Las Vegas fairly often?
A. Yes.
Q. Prior to November
of 1992, did he routinely seek your authorization for such travel?
A. Yes. As a matter of fact, at one point early on in supervision his case
was transferred to Las Vegas and then transferred back to our district.
Q. But each time he traveled to Las Vegas prior to November 1992 he
would go through what he would be required to do in contacting you; is
that right?
A. Yes, sir.
Q. When he traveled to Las Vegas, did he also
have to check in with the probation officer in Las Vegas probation office
there?
A. Yes. It is a requirement of that office.
Q. And he had to do that in person; is that correct?
A. Yes.
Q. And had he done that on other occasions?
A. Yes.
Q. Did he also have to check in with the local police in Nevada when he came to Las Vegas?
A. Yes. If you were
there more than 48 hours you are required to register with the local
police department.
Q. And that is a requirement that you can't waive; is that correct?
A. No. That is state law. We have no ability to circumvent that.
Q. Prior to November of 1992 when he did travel to Las Vegas, did he
fulfill those requirements? Did he check in in person in Las Vegas --
A. Yes.
Q. Both with the police and with the local probation office?
A. Yes.
Q. Now, when was the last time that Mr. Mitnick contacted you
seeking authorization to travel to Las Vegas?
A. The end of -- if I
can refer to my notes, it was the end of October -- October 27th, I
believe.
MR. PAINTER:
Your Honor, if the probation officer could retrieve his file from counsel table --
THE COURT:
Please.
BY MR. PAINTER:
Q. Mr. Gulla, you kept a
record of any time the defendant would ask for authorization to travel; is
that correct?
A. Yes, sir.
Q. Would you keep a record of any other contacts -- all contacts you made with the defendant?
A. Yes. I tried to be conscientious about that.
Q. And those are the notes you are referring to now; is that --
A. Yeah.
Q. I am sorry. Again, the question was when was the last time Mr. Mitnick requested your
authorization?
A. He called me on October 21st of 1992 and requested travel
permission to Las Vegas because his mother's boyfriend -- family
member of his mother's boyfriend had passed away, and he wanted travel
permission from October 25th to November 2nd of '92.
Q. And then he
subsequently contacted you at the end of October, October 28th to change
the dates of that travel?
A. October 28th he called and said he had a
traffic court case in Los Angeles on the 27th and then he requested that
he be allowed to stay in Las Vegas to November 6th, and I said,"
okay, but no further extension."
Q. Now, did he on that occasion check in with the Las Vegas probation department?
A. Yes, he did.
Q. How do you know that?
A. I confirmed it by telephone with the Las
Vegas office and also I have their entries showing that he did check in
with them at the end of October and reported to their office in the early
part of November, November 2nd.
Q. What do those entries show? What kind of information do they indicate?
A. That he reported to their
office on November 2nd and then they sent the matter to the waiting room
for a few minutes because he had told them that I had given him an
extension and they called me to verify the extension, and he said that I
had given him an extension to November 6th and I confirmed that, in fact,
I did give him an extension to November 6th but no further extension.
Q. Now, you received a copy of the proffer that defense counsel put
together in this case. I think it was filed a few weeks ago; is that
right?
A. Yes, I did.
Q. In that proffer it said that Mr. Mitnick
often complained because he had to spend hours in the waiting room. On
this occasion what does the sign-in chart show about how long he was in
the office?
MR RANDOLPH:
Objection, your Honor.
THE COURT:
What difference does that make?
MR. PAINTER:
Your Honor, the difference that
makes is the defendant claims that when he called for
permission later in November which we contend never happened,
that one of the reasons Mr. Gulla allowed him to check in by
phone with Las Vegas is because he had to wait for four
hours, and that was the rationale he asked for it.
Mr. Gulla stated just before the hearing that he looked at
this particular sign-in sheet and it showed the defendant was
there for only a few minutes, so it is relevant just for that
point, your Honor.
MR. RANDOLPH:
I will object, your Honor. Mr. Gulla has
no personal knowledge of this. He is looking at a piece of
paper from someone in Las Vegas.
MR. PAINTER:
Your Honor, hearsay is clearly permissible in this sort of a
hearing, and I think that this is clearly reliable --
probation office records that Mr. Gulla has access to and it
only goes to this point, your Honor.
THE COURT:
Do you think it is a worthwhile inquiry?
MR. PAINTER:
That is the end of the
inquiry for that, your Honor, and we will move on from there.
THE COURT:
Go ahead.
BY MR. PAINTER:
Q. Mr.
Gulla, how long was he in the office on that occasion according to that
record?
A. Approximately 20 to 25 minutes.
Q. Now, on that occasion,
did he, in fact, check in with the local police department as he normally
did before?
A. Yes.
Mr. Randolph:
Objection.
THE COURT:
You mean is there a record of that --
MR. PAINTER:
Yes, is there a record of that.
THE COURT:
-- that this man has seen - this witness on the stand has seen?
MR. PAINTER:
That you have seen.
Q. Did you make any inquiries to determine if he checked in with the
police department?
A. I inquired with the probation office there and they
confirmed that he did, in fact, check in with the local police department,
and they also wrote it in on their notes, and there is some sort of a
register number that they wrote in there as well confirming that he did
check in.
Q. Now, the next time you heard from Mr. Mitnick or the next
contact was November 9th; is that right? You received a phone call?
A. Yes, November 9th, a message.
Q. And you did not speak with him directly; is that right?
A. No.
Q. What did the message state?
A. Quote "back in town" unquote.
Q. Now, also on November 9th did you send out a
notice to Mr. Mitnick?
A. Yes.
Q. And what was that notice?
A. A notice regarding the delinquent monthly supervision reports, and I
believe I asked him to give me a call.
Q. That was for September and October's supervision reports?
A. Yes.
Q. And at that time you had
also asked the court for a warrant based on two other allegations; is that
right?
A. Well, the warrant request had gone down on November 5th and the
warrant was signed November 6th.
Q. But you weren't aware of it?
A. I was not aware that the warrant had been signed yet.
MR. PAINTER:
Your Honor, if government's exhibit one could be placed before the
witness, and this is an exhibit that has already been filed
with the government's papers. I apologize there is not an
extra copy but if the court would like to look at it first.
Q. Is that the notice you sent, Mr. Gulla?
A. Yes, sir.
Q. And does
that say -- what does that say to the defendant? What is the handwritten
inscription there?
MR. RANDOLPH:
Objection, your Honor. Speaks for itself, your Honor.
THE COURT:
It is Mr. Gulla's handwriting; isn't it?
MR. PAINTER:
Yes.
Q. Is that your handwriting?
A. Yes, sir.
Q. And that is where you told him to call you, it was important; is that
right?
A. Yes, sir.
Q. Now, did you ever receive a call? Well,
first of all, you mailed this to the defendant's address; is that right?
A. Yes, sir.
Q. Did you ever receive it back? In other words, did you
ever get it returned to you?
A. No.
Q. Did you ever receive a call from Mr. Mitnick?
A. Not to my knowledge, no.
Q. You never got a call after this?
A. After that date.
Q. And after this -- after you
sent this notice did you subsequently visit Mr. Mitnick's residence?
A. Yes. I did stop by there.
Q. And what date was that?
A. November 11.
Q. Did you look for him on that occasion?
A. Well, I knocked on the door.
Q. Was there any answer?
A. No.
Q. Did you leave anything, any note or card?
A. I left a card, my business card. I just left a
business card asking him to call me.
Q. Did he call you after that card?
A. Not to my knowledge.
Q. Did he call you or write you at any
time subsequent to those -- to leaving the card and sending the notice?
A. Not as far as I can determine, no.
Q. Would your notes reflect if he had ever called you or contacted you in any way?
A. I would like to believe they would, yes.
Q. And they don't; is that right?
A. No, they don't.
Q. Now, you know that if the defendant had called or contacted you
-- you determined the warrant had been signed within that period; is
that right, by the federal judge?
A. Not on November 11th, no, but had he
called me a day or after two after that, that is when I found out a
warrant had been issued.
Q. But you knew that a warrant was pending; is that right?
A. Yes.
Q. If the defendant had called you as you had
asked him to do, what would you have done? What was your normal practice?
A. Well, first of all, I would have brought to his attention that he
owed me delinquent reports and I in all likelihood would have set up a
routine visit with him because I hadn't seen him for a couple of months.
Q. Why would you set up a routine visit? Why would you have him
actually come in?
A. Well, to maintain contact with him, and in all
honesty, I would have checked to see if the warrant had been issued, and
if it had been, I would have alerted the marshals.
Q. And had the marshals place him under arrest when he came in?
A. Yes, take him into custody.
THE COURT:
It doesn't matter.
BY MR. PAINTER:
Q. Now, in the defendant's proffer he states that he received your
authorization to travel to Las Vegas on November 27th, 1992 and
return in the beginning of December. Did the defendant ever receive that
authorization from you?
A. No, sir.
Q. Did he ever call you about that?
A. Not to my knowledge, no.
Q. Now you have reviewed your notes with respect to this; is that right?
A. Yes.
Q. And there is no indication that he did?
A. No.
Q. And he also said that you gave him
authorization, that you would mail him the permission slip rather than
having him come pick it up. Is that true?
A. Not under those
circumstances I wouldn't. Again, I would have had him come into the
office.
Q. And he also claims you told him he did not need to check in to
the Las Vegas probation office in person. again, that is not true; is
it?
A. No. I would not tell anybody not to report to that office.
Q. Now, have you checked with the Las Vegas office to see if he checked in
during that period?
A. Yes.
Q. What did you find out?
A. They have no record of him checking in there.
Q. The defendant also claims he made a phone call about 3:00 o'clock in the morning
to the probation office in Las Vegas --
A. Yes.
Q. -- and left a message.
Q. Is there any record of him leaving a message?
A. No. I brought that to their
attention of the office there, and they told me, first of all, at this
stage of the game they would have no way of knowing if any taped message
was left from 5 years ago at 3:00 o'clock in the morning, but their normal
practice is to enter any recorded message onto the file that they have
open on the case, and there are no entries --
Q. Okay.
A. -- for that time.
Q. Did you make inquiry of whether he checked in with the local
police department as he normally would be required to do on vacation?
A. Yes.
Q. And what did you determine?
A. I determined that there
was no record of him checking in with the local police department.
Q. Okay. He also did not -- another probation or supervision report would
have come due in the beginning of December for November; is that right?
A. Yes, sir.
Q. Did you ever receive that from Mr. Mitnick?
A. No.
Q. The next time you had any contact about Mr. Mitnick was from his
then defense attorney; is that right?
A. Yes, his attorney at the time.
Q. What happened on that occasion?
MR. RANDOLPH:
Objection, irrelevant,
your Honor. the scope of this inquiry is through December 7, 1992.
MR. PAINTER:
Your Honor, we believe this clearly indicates that he
was aware that he was wanted and that he was, in fact,
a fugitive. It concerns discussions that I believe are
in the letters from the probation office where Mr. Mitnick
offered to turn himself in at one point and then did not.
THE COURT:
What is the date of the inquiry you are making with
this witness?
MR. PAINTER:
My understanding from the letters from the probation office --
THE COURT:
What is the date you are inquiring of this witness?
MR. PAINTER:
In January of '93 there
was a call from the defense attorney to Mr. Gulla asking what
the status of the warrant was and whether or not the defendant
might self-surrender, and your Honor, we believe that that
is relevant because it shows --
THE COURT:
Mr. Yzurdiaga.
MR. PAINTER:
Correct, your Honor.
THE COURT:
Ask him about the call.
BY MR. PAINTER:
Q. Mr. Gulla, could you just please tell us about that call.
A. Yes. I got a call from Mr. Yzurdiaga on
January 29, 1993, and he said that he had gotten a call from mr. Mitnick
and that he might be considering surrendering and that he would get back
to me. He did want to know how much bail had been set for in the case. He
called me back on February 1st and again asked me -- well, maybe this
was the first time he asked me specifically about the bond and how much it
had been set at, and he said that Mr. Mitnick would consider surrendering
if bond was set at 25,000 dollars as opposed to a detention only bond so
that he could make bail, and I faxed him a copy of the form 12, the
warrant request where bail is requested and the amount. After discussing
it with my supervisor, we faxed it over to defense counsel's office on
February 1st.
Q. And did you ever hear from Mr. Mitnick or his attorney
after that.
MR. RANDOLPH:
Objection, irrelevant, your Honor.
MR. PAINTER:
Did he --
THE COURT:
Answer the question.
MR. PAINTER:
I will withdraw the question and ask it a different way.
Q. Did he ever turn himself in or offer to turn himself in after that?
MR. RANDOLPH:
Objection, irrelevant, your Honor.
THE COURT:
Overruled.
THE WITNESS:
No. He did not turn himself in.
MR. PAINTER:
Okay.
Q. The next contact you had then was when he was arrested in North
Carolina; is that correct?
A. Yes, sir.
Q. That is when he was in
possession of the false identifications that you charged him with and he
has previously admitted to; is that right?
A. Yes. That was brought to my attention.
MR. PAINTER:
Your Honor, no further questions of this witness.
MR. RANDOLPH:
May I, your Honor.
MR. PAINTER:
I would ask that that one exhibit, your Honor, be admitted.
THE COURT:
Yes.
C R O S S - E X A M I N A T I O N.
BY MR. RANDOLPH.
Q. Mr. Gulla, during the course of your
examination here you made reference to some notes that you made of
contacts with Mr. Mitnick; is that correct?
A. Yes, sir.
Q. And have you also reviewed those notes prior to your testimony here today?
A. Yes. I looked at them briefly.
Q. And you looked at and you also
reviewed some notes in a file that was sent to you from the Las Vegas
probation office; is that correct?
A. Yes, sir.
Q. And you reviewed those notes before your testimony here today?
A. Yes, sir.
MR. RANDOLPH:
Your Honor, I wonder if at this point in time I may
be allowed to take a look at the notes that he has reviewed
and made reference to in his testimony.
THE COURT:
Well, you have seen them before; haven't you?
MR. RANDOLPH:
No, I haven't. I asked permission,
your Honor. Those are the ones I sought to get access to and
the court denied my request.
MR. PAINTER:
The government hasn't seen them, either, your Honor.
THE COURT:
All right.
Take 5 minutes and put them out here on the table and let him
look at them.
MR. RANDOLPH:
Thank you. (RECESS.)
THE COURT:
Mr. Randolph, did you see everything?
MR. RANDOLPH:
Yes, I did. Thank you, your Honor.
MR. PAINTER:
And the government did as well, your honor.
THE COURT:
Yes.
BY MR. RANDOLPH.
Q. Good afternoon, Mr. Gulla. In the initial letter requesting that a
warrant be issued by this court, there was no reference whatever to
whether my client had allegedly absconded from the jurisdiction; correct?
A. That is absolutely correct.
Q. In fact, there was no mention that he
had somehow withdrawn himself from your supervision; was there?
A. No. I had no indication of that at that time.
Q. What you did know in the warrant --
THE COURT:
Just a minute. Let's be sure that we have some
precision in the questions here. We must have
precision because of the technicality of what we are doing.
MR. RANDOLPH:
I agree, your Honor.
THE COURT:
Ordinarily there is
nothing technical about a violation but you both have made
this into something technical and so you had better watch the
way you phrase the questions. what was the question Mr.
Randolph asked -- not the immediate one but the one
before that? It starts out "in the." (RECORD
READ.)
MR. RANDOLPH:
Yes, your Honor. I was looking at his letter dated
November 6, 1992.
THE COURT:
Well, if you are asking
about the letter --
MR. RANDOLPH:
I understand.
THE COURT:
If you are asking about the warrant -- you have got to have real
precision here.
MR. RANDOLPH:
I understand. I am sorry.
Q. Sir, when
you sent a letter on November 6, 1992 --
THE COURT:
That's it.
MR. RANDOLPH:
-- in which you requested that a warrant issue; is
that right?
A. Yes.
THE COURT:
That is a letter to the court.
MR. RANDOLPH:
Yes, your Honor.
THE WITNESS:
Yes, sir.
BY. MR. RANDOLPH:
Q. All right. Do you have the exhibits before you there,
sir?
A. That letter, you mean?
Q. Oh, I am sorry. I believe that
letter is part of Exhibit A.
A. I --
Q. The clerk will show it to you.
Is that letter Exhibit A of Exhibit A?
A. Yes, sir.
Q. And the
requested warrant -- I should say to be precise the requested violations
-- I am sorry. you requested a warrant in that the supervised releasee had
violated terms and conditions and then you set them forth -- two terms and
conditions -- I think it is the last page of your letter or an attachment
thereto; correct?
A. Well, allegations.
Q. Yes. Those allegations are set forth in that letter, correct?
A. That's correct.
Q. Now, at the time you presented this letter you had no reason to request
that the court also issue a warrant because Mr. Mitnick had removed
himself from your supervision in some way; correct?
A. Absolutely.
THE COURT:
Absolutely what?
THE WITNESS:
Absolutely correct.
THE COURT:
Absolutely correct.
BY MR. RANDOLPH:
Q. But in point of fact, Mr. Mitnick as of the time that this letter was sent
to the court, that being November 6th, 1992, according to your testimony,
Mr. Mitnick had not sent in monthly reports for the months of September
and October, correct?
A. That's correct.
Q. I take it that is failing to sign-in after 3 years of supervised release.
A. Yes.
Q. And I
take it that Mr. Mitnick had successfully participated in supervised
release up to about this time; correct?
A. Well, I don't know how to answer that because --
Q. Let me rephrase the question. Up to November of 1992,
you had never requested that the court issue a warrant; correct?
A. That's correct.
Q. And as of the time you requested this warrant, his
failure to have submitted a couple of monthly reports did not lead you to
believe that he was somehow absconding himself or removing himself from
your supervision, correct?
A. No. At that point I did not think that.
Q. All right. Now, with respect the monthly reports -- let me ask you
about that for a moment. In the beginning of supervised release Mr.
Mitnick would be in your office on a regular basis, correct?
A. Yes, to an acceptable level, and I didn't have any problem with him on that.
Q. And it was on those visits to your office that he would fill out the
report and sign it and you would sign it on a monthly basis, correct?
A. Well, no, not necessarily. Oftentimes they are mailed in. They are
not always hand-carried to the office by the person on supervision.
Q. I understand that. My question is do you have a specific recollection
that Mr. Mitnick mailed in monthly reports while you were his supervising --
A. I couldn't tell you which ones he mailed in and which ones he
hand carried.
THE COURT:
Because sometimes he did it one way and sometimes he did it the other way; is that it?
THE WITNESS:
That's true with every case.
MR. RANDOLPH:
All right.
Q. Now, do you recall that on August 31, 1992 --
A. Yes.
Q. -- let me see if you
have a notation here. Do you recall whether or not you saw Mr. Mitnick on
August 31, 1992?
A. Yes. Is that the entry where I have "OVP"? I
left my notes over there.
MR. RANDOLPH:
I wonder if he could have his notes placed before him, your Honor.
MR. PAINTER:
Your Honor, if I could just carry it to him.
THE WITNESS:
Just the top.
Thank you.
BY. MR. RANDOLPH:
Q. Do you have reports for
-- a monthly report that is dated -- signed August 31, 1992?
A. Yes, I believe I do.
Q. Was that a date that he was in your office and signed
one or more monthly reports at the same time, essentially backdating them?
A. I am trying to find that place here. To answer your question, I
couldn't tell you at this point if he brought in one or two. I don't know
offhand.
Q. Do you recall an occasion when he signed two monthly reports on
one occasion because he had missed a month or two?
A. I really don't
remember. It is possible. I can't say for sure, and I won't say no because
it is possible.
Q. All right.
A. I don't know.
Q. You would not
have allowed that sort of thing to occur in the beginning of a supervised
release; correct?
A. You mean a missed report?
Q. Yes.
A. Not
making kind of a federal case out of it?
Q. Well, in the beginning you
might take a different position with a missed report then later.
A. Yes. When a person establishes kind of a track record on supervision, I
don't necessarily hold it against them if they are late with a report, and
in fairness to Mr. Mitnick, people are late with their reports, and we
don't just go out and get warrants or we would be inundated with the
courts if we based that on a late report.
Q. All right. The notes
that you presented us which are your notes, do they appear to span from
February 18th - I assume that is 1992 -- through 1-29-93; is that correct?
A. Yes, sir.
Q. Now, are these your official notes in the case or is
this just something you do for yourself?
A. I am not sure I understand your question.
Q. I am sorry. Are you required as part of your
duties through a policy of the probation office to prepare these notes or
is this just something that you do on your own?
A. Well, I don't know
that it is an official policy. We do it to kind of keep track of where our
cases are. I would say yes. The administration wants us to keep some kind
of notation of our on-going thing. It is really for our own benefit.
Q. Do you keep these notes in a particular file or are they just kind of
loose documents in a file?
A. No. They are not in the file at all. They are in our field-book.
Q. A field-book is something you keep at your office?
A. Sometimes. Sometimes we take it with us if we are going some place.
It depends on the situation.
Q. Now, these notes for the year 1992, your
notes don't purport to reflect every conversation you had with Mr.
Mitnick, do they?
A. Probably not. I can't say for sure. In all honesty,
there are times when someone will call, and it is not a very significant
call, and I might be interviewing somebody in the office or something, and
I may not make an entry into it. I try to make entries on something
that is fairly significant.
Q. And would you consider travel to be a
significant item such that you would make an entry in your log?
A. Most -- yeah, I would say so, yeah.
Q. All right. But in point of fact if
Mr. Mitnick traveled to -- well, look at your notes if you would, sir, for
a moment -- yes.
Q. -- and see if you agree with me that the only entries
for travel in the year 1992 are 2-18, 3-6-92 and then all the way down to
10-5-92.
A. No. There is an entry on 10-21.
Q. All right. But there are some thereafter; correct?
A. Yes.
Q. All right. Between
February and that last entry in March 6, 1992, in October 1992, Mr.
Mitnick traveled on a number of occasions to Las Vegas, didn't he?
A. I don't recall how many times he traveled there, but I remember the end of
October, yes, the end of October for sure.
Q. But in that period between
march and October he traveled from time to time to Las Vegas with your
approval; correct?
A. He may well have. I can't recall now.
Q. There is no reference to that travel in your notes; is there?
A. Yes. That is
true. I would say that while we try to be precise, I am the first to admit
that we don't always put everything in. As I said, you might be distracted
or you might have somebody else in the office or any number of reasons.
Q. All right. Now, I wonder if you would put those notes aside and look
at the notes that you testified regarding the information you received
from Las Vegas which I believe also has been marked as an exhibit, and I
am not sure what exhibit number that is. It is a government exhibit. I
wonder if I may inquire what number that is.
MR. PAINTER:
Your Honor, I believe the first set of notes he was referring to is marked
as Exhibit 3 and this is marked as Exhibit 2. Yes -- that's
correct, your Honor, Exhibit 2.
BY MR. RANDOLPH:
Q. Sir, you testified after reviewing these notes, correct,
regarding their substance -- the ones in exhibit 2 that are before you.
A. The Las Vegas notes?
Q. Yes?
A. Yes, sir.
Q. Can you tell us, do you see right in the middle it says 3-10-CT?
A. Yes.
Q. Would you please read the line directly before that. Tell us what that says.
A. The line above 3-10-CT?
Q. Yes.
A. It says, "ray previous --
supervising --" I am not sure of the last word.
Q. Do you know
whether that last word has any significance to the events that occurred on
November 2, 1992, since you can't read it?
A. I want to make sure I am
reading the correct line that you are talking about.
Q. Yes, you were, sir.
A. Okay.
Q. And you can't read the last word of that line, correct?
A. Give me another stab at it.
Q. I don't want you to guess,
sir. Do you know what that word is or would you be guessing?
A. Right now I can't read the last word.
Q. Okay.
A. "Ray previous
supervising --" something.
Q. All right. Would you go down to the next
entry, sir.
A. 3-10?
Q. Yes. Begin with the third line down. It
appears to be "not aware." Would you read those lines to us.
A. The third line down?
Q. Yes.
A. It says, "Friday (maintain contact with mother.)"
Q. Okay. Do you see right in the middle of the
page it says 3-10-CT?
A. Yes.
Q. Would you count down 3 lines from
that beginning with the words "not aware" and tell us what that
says.
A. "Not aware of beeper."
Q. And the next line?
A. "Doesn't see issue in spite of special conditions. No more
extensions."
Q. Okay. At the top there you see "wearing beeper"
and the beeper number is reflected there, is that correct, the second
paragraph?
A. Yes.
Q. You had a discussion with the Las Vegas
probation department regarding the fact that my client, Mr. Mitnick, was
wearing a beeper, correct?
A. Yes, brief discussion, yes.
Q. You didn't have any problem with that; is that correct?
A. No. I didn't have any problem with that at the time.
Q. Did you have this discussion because
Las Vegas -- by the way, who were you speaking to on this occasion?
A. I know it wasn't the officer that supervised Mr. Mitnick at the time.
Q. Was it someone named Pete?
A. Yes. I saw that. Yes, that's right. It
was Pete and I didn't put his last name in.
Q. Now, the entire
conversation that you had with the people in Las Vegas as reflected in
government's exhibit number two is reflected in two short lines in your
notes for 11-2-92; is that correct?
A. Correct.
Q. Do you recall
having a subsequent conversation with Mr. Mitnick wherein he discussed
with you the problems he had had with the people in Las Vegas because he
was wearing the beeper. Does that ring a bell?
A. Honestly, no.
Q. Do you recall --
A. He might have brought it up but I didn't think it was
a problem because I told him that it wasn't a problem with me.
Q. Okay. When you say "I told him," you are saying I told him, Mr.
Mitnick, that it wasn't a problem with me?
A. I told the officer. I don't
remember if I talked to Kevin after that, to tell you the truth.
Q. All right. Do you recall having a conversation with Mr. Mitnick wherein
you discussed his desire not to have to go to the U.S. probation office in
Las Vegas on his next occasion because they had hassled him about the
beeper. Does that ring a bell?
A. I am afraid not, no.
Q. Okay.
A. I just -- I didn't have any authority to tell him to bypass that office,
and so there is no reason I would tell him that, and it didn't appear on
this occasion.
THE COURT:
What authority would he have to tell him that?
MR. RANDOLPH:
I don't know, your Honor. I don't -- I am not sure
what authority he has or doesn't have in this regard.
THE COURT:
I don't believe that he can do that.
BY MR. RANDOLPH:
Q. At any rate, did you ever discuss with Las Vegas have seen the
proffer, correct?
A. Yes, sir.
Q. All right. You took note of
the fact that on or about November the 29th Mr. Mitnick did check in with
the probation office in Las Vegas; correct. You noted those calls on the
proffer?
A. Is that the 3:00 A.M. entry?
Q. Yes, actually two calls.
A. Yes.
Q. You advised us that Las Vegas does have the ability to
receive calls 24 hours a day; correct?
A. They had an answering machine, yes.
Q. But for reasons that are not in your personal knowledge
the information from those calls was not transferred into Mr.
Mitnick's file as maintained in Las Vegas. That is your understanding;
correct?
MR. PAINTER:
Objection, your Honor. There is no foundation that
there was any information or message even left.
THE COURT:
Rephrase the question because there isn't any.
Mr. RANDOLPH:
I understand.
Q. To the extent that a message was left on these two calls
that were made to the Las Vegas probation office --
A. Yes.
Q. -- Las Vegas cannot -- they don't have the tapes of that period of time so
they can't resurrect that information.
A. No. I specifically asked them
because I certainly wanted clarification of it, and they said, first of
all, the tapes are no longer in existence, but they said that their normal
procedure would be to transpose any message from a tape on to whatever
notes they had on any particular file.
Q. That would be -- who did you speak to that gave you that information?
A. I spoke to senior u.s.p.o. john gonska at that time.
Q. When did you have this conversation?
A. Well, the most recent one was probably about a month ago.
Q. All
right. You didn't talk to him in November or December of 1992, did you?
A. No, sir, I did not.
Q. And you asked him what is their practice in Las
Vegas; is that correct?
A. No. I have known what their practice is.
THE COURT:
How much longer are you going to be at this?
MR. RANDOLPH:
May I have about 20 minutes, your Honor?
THE COURT:
Well, you are going very, very slowly.
Mr. RANDOLPH:
I will try and speed it up, your Honor.
THE COURT:
All right. We are going to stop for a minute and just
take the other matter. Is the other matter here?
THE CLERK:
The government is here, your Honor. I will see if he
is out in the hallway.
THE WITNESS:
Shall I step down, your Honor?
THE COURT:
Yes. (OTHER COURT MATTERS.)
THE CLERK:
United States versus Mitnick.
Mr. RANDOLPH:
May I continue, your Honor?
Q. Mr. Gulla --
A. Yes, sir.
Q. -- at least
according to your notes you discussed travel with Mr. Mitnick on 10-8,
10-30 and 11-2-1992; is that correct?
A. Yes, sir.
Q. Is it possible
that during any one of those dates Mr. Mitnick also discussed with you,
however briefly, his intention to travel at or about the thanksgiving
holidays to visit his mother in Las Vegas and you just have forgotten
about that as you testify here today?
A. I don't think that it is possible.
I don't think we would have discussed it at that point because, frankly, I
was a little annoyed that he had requested another extension, and then I
said," all right, up until the 6th and then you need to come back."
We didn't discuss the Thanksgiving holiday at that point.
Q. All right. Now, in your conversation with him I believe your notes reflect
that you also talked to him on 10-21-92; is that correct?
A. Yes, sir.
Q. It looks like you had a conversation with him on 10-6-92; is that
correct?
A. I apologize. I left my notes on the table.
MR. PAINTER:
May I assist? Here.
MR. RANDOLPH:
All right.
Q. Sir, just tell me if this is correct.
A. Yes, sir.
Q. You had conversations with him on 10-5, 10-6, 10-9?
A. That's correct.
Q. 10-21, 10-28, 10-30 and 11-2.
You at least had conversations with him on all of those dates; correct?
A. That's correct.
Q. On any of those occasions do your notes reflect
that you asked him to come in to fill out the monthly reports that were
outstanding?
A. No.
Q. And I take it that you did not bring that to
his attention in any of those conversations; is that correct?
A. No.
At that point -- especially the early part of October, it was only the one
report that was missing, and quite frankly, I might not have noticed it at
the time that the report was --
Q. And even in November you didn't tell him
to bring in the one for October nor the one for November, correct?
A. No. I don't recall telling him that.
Q. All right. Now when you went to his
apartment on November 11th, do you have that occasion in mind?
A. November 11th, yes.
Q. On that date you left a card at his apartment; is
that correct?
A. Yes, on the -- in the door.
Q. When you say in the
door, I wonder if you could - I wonder if exhibit -- may I assist? I see
the clerk isn't here, your Honor. I wonder if I may put the exhibits
before him.
THE COURT:
Well, just ask him the question.
MR. RANDOLPH:
All right.
THE COURT:
He has seen the picture and he has been there so --
BY MR. RANDOLPH:
Q. I showed you the pictures of the apartment earlier today; is that correct, sir?
A. Yes, sir.
Q. Do you recall how you attached this card to the door or where you placed
it?
A. I didn't have any tape or anything. I think I just placed it
between the edge of the door and the siding.
Q. All right. Now, do you
recall anything about -- by the way, this door is exposed to the elements,
correct? That is to say, it is not an indoor hallway; is it?
A. No, that is true. Yes, that's correct.
Q. Do you recall anything about what the weather was like that day?
A. No, sir.
Q. Do you recall that on that
particular day, November 11th, there were Santa Ana winds gusting up to 40
miles per hour in the Southland valleys and canyons?
A. I don't recall. That may well be.
MR. RANDOLPH:
Your Honor, I would ask the court
to take judicial notice of the weather report for November.
THE COURT:
Yes.
MR. RANDOLPH:
All right. Thank you.
Q. Now you had sent -- I am sorry. I didn't mean to skip over this.
A. Okay.
Q. You had sent -- you related to the court that you sent the notice -- I
believe it is on November 9th -- to Mr. Mitnick's address; correct?
A. Yes, sir.
Q. Asking him to please call; correct?
A. Yes, sir.
Q.
Did you personally place that document in an envelope and put it in the
mail or did you do it in some other way?
A. No. I didn't personally put it in the mail, no, sir.
Q. Okay. Do you have any specific recollection as you
sit here today --
A. Yes.
Q. -- how that document -- what
happened to that document after you filled it out?
A. We just put it
in a bin with outgoing mail and the secretaries then take it and mail it.
Q. Now, that is your standard procedure; correct?
A. Yes, sir.
Q. Do you have a recollection of doing that or are you just telling us what
your standard procedure is?
A. Well, I would be lying if I said I exactly
remember putting it in because the probation officers did not take the
letters and then physically go to the mail box. We put them in a bin in
the office, and the secretaries would take them and then drop them in the
mail.
Q. How many of those go out on a regular basis? A lot? just a
handful?
A. There is an enormous amount of outgoing mail, if that is your
question.
Q. Yes.
A. It is not just things like that. We send
files down to Los Angeles. We send files to other districts.
THE COURT:
There is a lot of mail.
THE WITNESS: Yes. There is an awful lot of mail.
THE COURT: Go on.
THE WITNESS: In fact, they were talking
about getting an extra mail box for us which didn't happen.
BY MR. RANDOLPH:
Q. Is there any requirement for something
like this notice when you are asking Mr. Mitnick to call in that it be
sent certified mail to ensure that you can prove it --
THE COURT:
There is no requirement for certified mail, is there?
THE WITNESS: No. It is not a requirement, no.
BY MR. RANDOLPH:
Q. Are there
any rules or regulations whatsoever in terms of notifying someone to
contact you under circumstances like this?
A. Well, it is left to our own
discretion. I mean, to be totally honest, there are times we sent
certified letters out.
THE COURT: It depends; is that right? It
depends.
THE WITNESS: It absolutely does depend.
MR. RANDOLPH: All right.
Q. Now, under these circumstances you were aware that there was --
at this point in time you had requested a warrant to be issued for his
arrest; correct?
A. Yes.
Q. And other than sending the letter and
going out there on the 11th and leaving a card at the door --
A. Yes, sir.
Q. -- you had Mr. Mitnick's home phone number; correct?
A. Yes, sir.
Q. Did you call him and say," Mr. Mitnick, did you get my letter?"
Or "Mr. Mitnick, I would like you to come in and talk to me."
A. Not to the best of my knowledge, I didn't.
Q. We know that you had his pager number as of --
THE COURT: Mr. Randolph, who is the duty on here?
MR. RANDOLPH: I think the duty is on the government, your Honor, to
prove that my client has absconded from supervised
release, and so the issue is what evidence does the government
have to prove that he was not living in his approved
residence, and that is what I am trying to establish.
THE COURT: Well, don't do it by asking him "why didn't you call
him."
MR. RANDOLPH: All right.
Q. You didn't make an effort to page him, did you, sir?
A. To the best of my knowledge, no.
Q. You didn't -- you were aware that he had a phone answering machine at
his apartment; is that correct?
A. I believe so, yes.
Q. And you didn't leave a message on that machine, either?
A. No.
Q. On 11-9-92
you got a message from Mr. Mitnick that he was back in town; correct?
A. That's correct.
Q. But that is a message that was passed on to you by
someone else; correct?
A. Yes, sir.
Q. And you made a notation
in your notes. By the way, you don't know whether that was the entire
message. That is just the version of the message that you got; correct?
A. That is what the message said. It said quote "back in town"
unquote.
Q. Right. You don't know whether Mr. Mitnick gave a lot more
information to the person but that is all they wrote; correct?
A. Not having spoken to him directly, I don't know.
Q. Then you made a notation "at
new or same residence" in your notes; correct?
A. Yes.
Q. So at that point in time at least you wanted to confirm in your mind that
he was still at the same residence; correct?
A. Yes, sir.
Q. Did you
call him and ask him to clarify the message "back in town," like
"are you at the same residence"?
A. No, I did not.
Q. By the
way, did you get this message before or after you had sent out that form
requesting him to contact you?
A. Oh, I believe I got the message before.
Q. So the only thing that you did then was you sent out the note?
A. I sent the routine notice out, yes.
Q. In your letter to this court dated
April 11, 1997 where you advise this court that the U.S. marshals service
had advised you that it was clearly established that he was no longer
residing in his official residence -- are you familiar with the contents
of that letter?
A. Yes, sir.
Q. All right. Who was it in the
U.S. marshals service that you were referring to when you told the court
this information?
A. I was relying on information from deputy Brian Salt.
Q. When did you have this information that you were relying on from Mr.
Salt?
A. Well, it was sometime prior to composing that letter. I don't
remember the exact date. As I said, I later found out that Mr. Salt
indicated that he wasn't so sure about that date, so I wanted to bring it
to the attention of the court that I was relying on that, and that if that
is not the case, I don't know if Mr. Mitnick was there or not.
Q. This letter that you sent to the court is dated April 11, 1997, correct?
A. Yes, sir.
Q. When did you talk with Mr. Salt and get the information
that you put in this letter of April 11, 1997?
A. Some time prior to that date. I don't remember the exact date.
Q. Do you have notes before you, sir, that would tell you?
A. I don't have those notes here, I am sorry.
Q. There are notes that exist that would tell you --
A. I don't
know if I -- to tell you the truth, I don't know if I wrote that down or
not. It would just -- I may have just gotten the information, transposed
it to my letter without writing it down.
Q. And then sometime after
you wrote these words -- by the way, this statement that I have just
referred you to, you now understand that that is an incorrect statement?
A. Yes.
Q. All right. When did you clarify with Mr. Salt that what you
had put in your letter to this court was not correct information?
A. Well, I got that information in the last week or so that Mr. Salt wasn't
so sure about the date.
Q. Did you speak with Mr. Salt?
A. I had spoke
to him earlier when he confirmed -- or at least that is what I thought he
told me -- that he recalled it because it was his birthday, but I have
since learned that he wasn't so sure about that.
Q. About the date?
A. About the date of December 4th.
Q. So is it your testimony that the only thing that you are clarifying --
THE COURT: Mr. Randolph --
MR. RANDOLPH: I am sorry.
THE COURT: -- you are going to have to pick up the pace of this.
MR. RANDOLPH: All right.
Q. What you
telling us is that sometime after you sent this letter in Mr. Salt only
clarified the date but not the fact that it was clearly established by the
U.S. marshals service that he didn't reside at that residence. What are
you telling us?
THE COURT: Now just a minute. Just a minute.
MR. RANDOLPH: Yes, your Honor.
THE COURT: That tone will not do --
MR. RANDOLPH: I am sorry.
THE COURT: -- to the probation officer.
MR. RANDOLPH: I am sorry. I apologize.
MR. PAINTER: And, your Honor,
we would object. In the very beginning we tried to clarify
this. we are not relying on that statement.
THE COURT:
Mr. Randolph knows that which is why we are wasting a lot of
time here.
BY MR. RANDOLPH:
Q. You don't recall -- I
apologize, sir. You don't recall when Mr. Salt told you that this
information in your letter was not correct; is that your testimony?
A. He did not tell me directly that it was not correct.
Q. How did you get
the information that it was not correct?
MR. PAINTER: Again, your Honor,
I believe -- it also may be that the witness doesn't
understand the question. We talked about -- when he first took
the stand we talked with a discussion he had with Brian Salt
today. I am not sure that he understands that that is what
counsel may be referring to.
THE COURT: Well, we are
going to move along with this. Mr. RANDOLPH: All right. I will move on to
something else, your Honor.
Q. In your letter dated
August 25th, 1995, you stated that "the offender then made himself
unavailable with his whereabouts remaining unknown to the probation
officer," and you are referring to the time after November 6th, 1992.
Do you recall that letter?
A. I recall the letter, yes.
Q. All
right. You have it in front of you. It is Exhibit A and Exhibit C to
exhibit a, and that is the third paragraph.
THE COURT: What is the
question?
BY MR. RANDOLPH:
Q. Sir, what is the date --
when you say, "the offender then made himself unavailable," what
is the date that you are referring to in that letter dated August 25th,
1995?
A. Sometime subsequent to November 6th, but I don't know what date.
I never was able to clarify it.
MR. RANDOLPH: All right. Thank you.
nothing further, your Honor.
MR. PAINTER: Very briefly, your Honor.
R E D I R E C T E X A M I N A T I O N BY
MR. PAINTER.
Q. Mr. Gulla, defense counsel asked you if sometimes
supervision -- monthly supervision letters or reports were late; correct?
A. Yes.
Q. And sometimes they may be; is that right?
A. That's correct.
Q. But now in this case you never received any of these
supervision reports for September, October or November?
A. That's correct.
Q. You didn't receive them late. You just never received them; is
that right?
A. Never received.
Q. Now, he also asked you why --
he asked you if you called the defendant after -- in the later part of
November essentially -- called him or wrote him again, and you said you
did not; right?
A. That's correct.
Q. Now, is there a reason that you
did not call him because a warrant was issued? Does that have something to
do with that?
A. Yes.
Q. Could you explain.
A. Well, I was just
trying to maintain routine contact with him, and once the warrant had been
issued and I was notified, then there was no reason for me to contact him
at that point any longer. Then it is up to the Marshals and perhaps the
F.B.I. to search for him.
Q. He had been in fairly constant contact with
you at the end of October, beginning of November; is that right?
A. Absolutely, yes.
Q. Then that just suddenly stopped; is that right?
A. Yes, sir.
MR. PAINTER: Your Honor, I have no further questions.
THE
COURT: Nothing else?
MR. RANDOLPH: Just a couple questions in
response to that, your Honor.
R E C R O S S - E X A M I N A T I O N
BY MR. RANDOLPH.
Q. When you say he had been in
constant contact with you, you had been also calling him, correct --
picking up the phone and calling him in October 1992, correct?
A. I
don't remember calling him. Most of the calls I think he initiated.
Q. Can you look at your notes and tell us which of those calls he initiated
and which ones you initiated or you can't tell.
A. Yes. I should be able to
tell. Wherever it says "TFP" that means telephone call from the
probationer, and I don't see any calls to him. Usually most of our people
contact us.
MR. RANDOLPH: Thank you. Nothing further.
MR. PAINTER:
Your Honor, one more question, if I may.
R E D I R E C T E X A M I N A T I O N
BY MR. PAINTER.
Q. After you determined the warrant
had been issued for the defendant --
A. Yes, sir.
Q. -- is there
any question in your mind that if you had gotten a call from the defendant
asking for authorization to leave the district that you would have noted
that down?
MR. RANDOLPH: Objection; asked and answered; calls for
speculation.
THE COURT: He may ask the question.
THE WITNESS:
No. I don't have any question but that I would have made note
of it after the issuance of the warrant.
BY MR. PAINTER:
Q. And is there any question in your mind that he did not, in fact, ask
your authorization to leave the district?
A. No, sir, he didn't.
MR. PAINTER: No further questions, your Honor.
MR. RANDOLPH: Nothing further.
THE COURT: Thank you, Mr. Gulla. You may step down.
MR. PAINTER: Your Honor, there is one more witness but in the
interests of time I could proffer what that witness would say
and the court could rule on this.
THE COURT: Do it.
MR. PAINTER:
There is a witness who at the time was a DMV investigator.
There was an investigation of Mr. Mitnick for obtaining
information impersonating various law enforcement officers at
the DMV. She was surveilling the defendant on December 24th
when he was at a fax -- Kinko's fax copying establishment.
She approached him. He threw the fax he had got in her
face and then fled. the government would have her
establish simply that at that time which is after the period
of supervision according to the defense, the defendant was
again evading law enforcement officers. If the court doesn't
think that is necessary --
THE COURT: I am not going to pay any
attention to that.
MR. PAINTER: Thank you, your Honor.
THE COURT:
Now, what else?
MR. RANDOLPH: I have no further witnesses other than I
would offer the exhibits that I have marked into evidence,
your Honor.
THE COURT: Well, you have to straighten
that out now.
MR. PAINTER: I would -- straighten out between the two of
us, your Honor?
THE COURT: Yes.
MR. PAINTER:
We will.
THE COURT: Now, let me ask you; what next?
MR. RANDOLPH:
At this point in time, your Honor, I think we are ready for
oral arguments on what significance does this have to the
supervised release issue.
THE COURT: We are not going to do it this afternoon.
MR. RANDOLPH: I understand.
MR. PAINTER: Your Honor, I
would note that -- well, we can argue it later. there has been
no -- there has been no testimony from the defendant. There
has been nothing to indicate he did not receive these notices
from the probation officer. the proffer that the defense
counsel makes is not in any way evidence. The phone records, I
suppose, could come in if the defense counsel makes a
motion, but I don't see any other evidence.
THE COURT: You
will have to straighten out the record however you straighten
it out with Mr. Randolph. now, let us think about when you can
argue this. you can argue it next Monday if you want to at
1:00 o'clock.
MR. PAINTER: That is fine, your honor, but the government's
biggest concern is we don't want the sentencing in either of
these matters to be delayed even further.
THE COURT: I don't want to delay it, either.
MR. PAINTER: We can argue at 1:00 and
proceed to sentencing depending on the recommendation or the
court's decision right after that. my understanding, as I
think we have represented before, is the probation
officer believes that this is only one of two Grade B
violations, the other one being the break-in into the computer
system, the Pacific Bell computer system. Ultimately it may
not change the court's decision on that matter, but we would
like to expedite -- it wouldn't really be expediting at this
point but continue with the sentencing.
MR. RANDOLPH:
Well, we have -- with respect to the timing, your Honor, that
brings me back to the ex parte application re discovery which
I filed last Friday, because there is still discovery
outstanding from the government. The first 3 items that we
requested in our application deal with the supervised release.
the remaining items -- I think they are 3 through 12 or 4
through 12 deal with issues in the PSR that I am required to
respond to for the sentencing on the North Carolina case, so I
would ask the court to address the application re
discovery because as I put in my papers, I am having
difficulty responding without having the discovery.
MR. PAINTER: Your
Honor, we received this motion very late, and I was going to
try to put something in writing.
THE COURT: You are not in any different position than the court.
MR. PAINTER: I understand, your Honor.
We were trying to respond in writing this morning and it was
not possible. I didn't want to give you more paper to deal
with. Let me just tell you what our position is on this.
The letter that defense counsel sent on Friday, May
16th and that we received the next week requested a number
of items of discovery that really don't appear to have any
bearing to the North Carolina case. I think that is what he is
referring to. He goes through the affidavit for the arrest
warrant of Mitnick in North Carolina which deals with, among
other things, conduct in other jurisdictions. the
North Carolina indictment charged cell phone fraud, all 23
counts of it. He pled guilty to one count of cell phone fraud.
The plea agreement in that case limited the conduct to
the losses directly to the cell phone companies for
that cell phone fraud and an amount under two thousand
dollars. The government agreed to no upward departure. The
government agreed to exclude any other relevant conduct beyond
that, so it is hard to tell why any of this stuff which all
deals with conduct not charged in the pending indictment here,
either, your Honor, not charged anywhere is relevant.
nonetheless, for really a little over 6 months now the
government has been saying there is a lot of evidence in this
case that is in electronic form, that is computer evidence,
and we have encouraged defense counsel to review that
evidence. No request for review has ever come. They
have never done it. They have never asked for it. indeed, many
of the specific items that the defense counsel
requests are things that are electronic evidence. Again, we
don't think they are relevant.
THE COURT: So just write them a letter.
MR. PAINTER: We have. We said -- I did respond to them last week
-- early last week and said -- and orally two weeks
before that -- telling defense counsel," it is in that
electronic evidence. We will make it available to you on any
kind of reasonable notice. We will set up what is called a
sparks station so that it can be reviewed." There is a
lot of it. I don't think it is relevant. I am afraid it is
another attempt maybe to delay the sentencing because it
really has nothing to do with the case. I
think the defense -- the claim is they are afraid because the
court will notwithstanding the plea agreement upwardly depart
on the basis of conduct not charged in the North Carolina
case. I suppose that is their rationale, but it is hard for
me to see what that relevance is. again, we are making
it available to the defense, however, and they can
look at it, but I fear that the defense will come in at the
beginning of next week and say," we can't go to
sentencing because I haven't had a chance to really look at
all this stuff."
THE COURT: There are two things I want to tell
you, Mr. Randolph. One is we are not going to delay any of
this, and the second thing is that if anybody on your side,
the defendant, particularly, believes that the court is
going to become so confused about what is happening
that the court will have real doubts about what it is doing, I
want you to have a serious conversation with Mr. Mitnick and
tell him that is not going to happen, because the court can
get through all of this material without any trouble at all.
MR. RANDOLPH: Your Honor, counsel for the government has not
correctly set the record before your honor, and I have an
obligation to --
THE COURT: He is going to respond to whatever you put
in front of the court, and you go ahead and respond to it.
MR. RANDOLPH: Your Honor, I asked him last week in writing to make
these documents -- when he said -- the first time I
learned that the computer evidence had anything to do with the
items that were requested three weeks ago was last Wednesday
when the government counsel sent me his letter. Up to now I
have been under the good faith belief that all the computer
evidence had to do with items that were allegedly seized from
my client as a result of the various seizures. That is not the
type of evidence I requested in my letter.
The reason we asked for those items of evidence in the letter
was because when -- I am concerned when there is a reference
to a piece of evidence in the P.S.R. and I don't know what it
is, and I have not seen it and my client hasn't seen it, I
can't respond to it. There are oblique references to upward
departures in the P.S.R. and there -- each one of the items
that I requested was specifically referenced to a paragraph
in the P.S.R. that I can't respond to.
Government counsel is not giving you the correct picture with
respect to me just walking in and looking --
THE COURT:
So give me the correct picture.
MR. PAINTER: The correct picture, your Honor --
THE COURT: We are not going to delay things.
MR. PAINTER:
The correct picture, your Honor, is that we have had several
meetings with defense counsel where we have explained that all
this evidence included a whole lot of different kinds of
computer evidence. I saw defense counsel the day after
memorial day and informed him orally," I have your
letter. I have looked at some of this stuff. I think a lot of
that stuff is in the electronic evidence."
I told him that orally. I confirmed that in writing last
week. I have been diligently trying to find all the
information he asked for.
THE COURT: Make the record.
MR. RANDOLPH:
Your Honor, you ordered government counsel to turn over the
P.I.N. register documentation the last time we were here. He
has some P.I.N. register information, and he has not turned it
over to me yet. I don't know what to do, your Honor, other
than get the court to order him to do so.
THE COURT:
I am not having any trouble with this.
MR. PAINTER: Your Honor, just to
respond very briefly, what the court asked --
THE COURT:
You are not doing what I am asking you to do.
MR. PAINTER: All right, your Honor.
THE COURT: He keeps filing things at the last minute and
then you get up and respond to them orally. what kind of a
record is that for an appellate court?
MR. PAINTER: Your
Honor, I would be happy to respond in writing. I do have --
THE COURT: It is no good for an appellate court.
MR. PAINTER: I do
have a request, however. The court asked -- the defense
counsel asked if there was any voice intercepts or d and r
records relating to -- and I think the offer he made to the
court is to like the probation revocation matter because it
could show some contact with the probation officer in November
and December of 1992. I immediately at the
court's request and our own request went back and talked to
pacific bell, made sure that, in fact, there were no -- after
a search warrant was done in December of 1992 there were none
of those things. They didn't exist. They weren't there.
To the extent that any existed intermittently before
that, the government just got copies of them last week. They
are technically grand jury material, and if the court would
like me to turn those over, I have copies here, and I would be
happy to give them to defense counsel. There is no -- and I
informed defense counsel of this -- no calls on those records
to the probation office. Again the relevance seems to escape
me, but I am happy to turn those over.
THE COURT: Mr.
Painter, it is your record. You protect it.
MR. PAINTER: I will, your Honor.
THE COURT: I say that to you because in the appellate court you
need a record.
MR. PAINTER: I know, your Honor, and I will respond in writing.
THE COURT: If what you are worried about is
whether the court is going to act, the court is going to act.
MR. PAINTER: I understand, your Honor. The only thing I am
requesting now is that the court -- since it is grand jury
material -- authorize me to disclose to Mr. Randolph the D &
R records for the two numbers that were requested.
THE COURT: Yes.
MR. PAINTER: Again, I don't see the relevance of them
but I am happy to turn them over.
MR. RANDOLPH: I
appreciate that, your Honor. One final comment. The reason
that the papers were in your hands on Friday is I didn't get
the government's written response to my discovery letter until
wednesday of last week. I would have filed it sooner.
I am not aware as I stand here today, and I say this
in all good faith and honesty, what the court referenced --
that my client and I understand what is going on, and I don't,
your Honor. I am requesting this discovery because I am
concerned that I will be caught with my pants down on
sentencing in the supervised release and the rule 20 case, and
I have done everything I can to find out if that is the
case, and I don't know, so I am concerned at this point
and that is the only reason why I have asked for these
documents, and we have not been sitting on our hands at all
through this case. The computer evidence, your Honor, the
government counsel -- what he is not giving you the full
picture on -- is that I am advised by counsel --
THE COURT:
That's all.
MR. RANDOLPH: All right.
THE COURT: That's all.
You respond, and when are you going to respond?
MR. PAINTER: as soon as I can, your Honor. It will be a brief
response, but I will respond.
THE COURT: When are you going to respond?
MR. PAINTER: By Wednesday, your Honor.
THE COURT: All right.
C E R T I F I C A T E STATE OF
CALIFORNIA : : CR. 88-1031 MRP
COUNTY OF LOS ANGELES : I hereby certify that the foregoing matter
entitled United States of America versus Kevin David Mitnick is transcribed
from the stenographic notes taken by me and is a true and accurate
transcription of the same. BETH ESTHER ZACCARO DATED: 6-12-97
OFFICIAL COURT REPORTER BRIAN SALT, SWORN.
15
D I R E C T E X A M I N A T I O N 15
C R O S S - E X A M I N A T I O N 23
FRANK GULLA, SWORN. 25
D I R E C T E X A M I N A T I O N 25
C R O S S - E X A M I N A T I O N 43
R E D I R E C T E X A M I N A T I O N 72
R E C R O S S - E X A M I N A T I O N 73
R E D I R E C T E X A M I N A T I O N 74
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