MR. RANDOLPH: MAY I SUGGEST ONE -- IF THE COURT
AGREES WITH THIS, ONE OF THE THINGS IN OUR DEFINITION OF A
COMPUTER, WE WERE GOING TO URGE THE COURT TO EXCLUDE
ELECTRONIC DEVICES OR SYSTEMS WHICH CONTAIN COMPUTER
CONTROLLED OR MICRO-PROCESSOR FUNCTIONS SUCH AS
AUTOMOBILES, APPLIANCES, FAX MACHINES, COPY MACHINES.
THE COURT: I KNOW YOU, MR. RANDOLPH. YOU DID NOT
THINK OF THAT YOURSELF; DID YOU?
MR. RANDOLPH: ACTUALLY I DID, YOUR HONOR, BECAUSE
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THE DEFINITION IN THE -- IN ORDER TO DEFINE COMPUTER --
THE COURT: DO YOU THINK ANYBODY IS GOING -- DO YOU
THINK THERE IS ANY POSSIBILITY THAT HE COULD BE BROUGHT UP
ON A VIOLATION OF THE CONDITIONS OF SUPERVISED RELEASE IF
HE WERE DOING ONE OF THOSE THINGS -- DEALING WITH ONE OF
THOSE OBJECTS?
MR. RANDOLPH: WELL, TO TELL YOU THE TRUTH, YOUR
HONOR, I SEE A FAX MACHINE AS POTENTIALLY MORE DANGEROUS,
FOR EXAMPLE, THAN A COMPUTER WITHOUT A MODUM BECAUSE A FAX
MACHINE CAN --
THE COURT: I CAN'T -- MR. RANDOLPH, I CAN'T FORCE
MYSELF TO IMAGINE WHAT YOUR CLIENT MIGHT DO.
I WANT TO DO SOMETHING WHICH IS REASONABLE AND WILL
NOT INFRINGE ON HIS RIGHTS BUT WILL ALSO PROTECT THE
PUBLIC.
NOW I HAVE BEEN THROUGH 5 DRAFTS OF THE CONDITIONS,
AND WE WILL NEVER BE ABLE TO AGREE ON EVERY SINGLE WORD OF
THEM, BUT I CAN TELL YOU THE INTENT IS TO BE FAIR TO YOUR
CLIENT AND ALSO PROTECT THE COMMUNITY AGAINST HACKING.
MR. RANDOLPH: ALL RIGHT. I UNDERSTAND. WELL,
GIVEN THAT, YOUR HONOR, MAY I JUST MAKE A FEW COMMENTS THEN
TO THE PROPOSED CONDITIONS THAT THE COURT HAS GIVEN US.
RESPECT TO PROPOSED CONDITION NUMBER ONE, IN ADDITION
TO THE OBJECTIONS THAT WE HAVE SET FORTH IN OUR PLEADINGS,
I WOULD URGE THE COURT THAT DEFENDANT'S CONDITIONS 3 AND 4
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ADEQUATELY MEET THE CONDITIONS IN ITEM NUMBER 1, BUT THEY
ARE NOT OVERBROAD SUCH AS THE CONDITIONS IN ITEM NUMBER 1
ARE, AND IN THAT REGARD, EVEN THOUGH I UNDERSTAND THE
COURT'S COMMENTS -- FOR EXAMPLE, IN 1(E) THE COURT COMMENTS
THAT THE COURT UNDERSTANDS THAT A COMPUTER STANDING ALONE
WITHOUT ACCESS TO A TELEPHONE LINE THROUGH A MODUM -- I
THINK THE COURT IS AGREEING THAT IS PROBABLY AN INERT
OBJECT, YET ITEM 1(E) SPECIFICALLY SEEMS TO REFER TO A
PORTABLE LAP-TOP COMPUTER.
THE COURT: IF MR. MITNICK IS NOT DOING ANYTHING
WRONG, HE WILL NOT HAVE TO COME IN THE COURTROOM, BECAUSE
THE SUPERVISOR IS NOT GOING TO REPORT TO THE COURT THAT HE
HAS VIOLATED THE CONDITIONS OF SUPERVISED RELEASE. THIS IS
NOT, YOU KNOW, A CONTRACT OVER A PATENT.
WHAT WE ARE TALKING ABOUT IS SOMETHING THAT WILL BE
SUFFICIENTLY INCLUSIVE SO WE DON'T HAVE THIS HAPPEN AGAIN.
MR. RANDOLPH: WELL --
THE COURT: ON THE OTHER HAND, IF HE IS NOT DOING
ANYTHING WRONG, THEN THE PROBATION OFFICER IS NOT GOING TO
HAVE ANY REASON TO REPORT HIM TO THE COURT.
MR. RANDOLPH: WELL, YOUR HONOR, AS I READ NUMBER
1(E) SITTING IN MR. MITNICK'S POSITION, AND I WON'T BE --
BY THE TIME HE IS ON SUPERVISED RELEASE I WON'T BE AROUND
TO ADVISE HIM, READING NUMBER 1(E), IF I WERE HIM I WOULD
READ IT AS I CANNOT GO TO THE STORE, PURCHASE A LAP-TOP
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COMPUTER AND SIT DOWN AND USE IT BECAUSE IT IS SPECIFICALLY
EXCLUDED.
THE COURT: WELL, LET'S FOLLOW THAT OUT. LET'S
ASSUME THAT HE DOES SOMETHING LIKE THAT AND THE PROBATION
OFFICER FINDS OUT ABOUT IT. WHAT I AM DOING IS I AM GIVING
THE PROBATION OFFICER SUFFICIENT DISCRETION TO DECIDE
WHETHER, IN HIS OPINION, ANYTHING HAS OCCURRED WHICH IS OR
COULD BECOME A VIOLATION OF A CONDITION OF SUPERVISED
RELEASE.
WE ARE NOT GOING TO BE UNREASONABLE ABOUT THIS.
MR. RANDOLPH: I UNDERSTAND, YOUR HONOR. I GUESS
THE COURT HAS -- I WOULD RATHER SEE THE CONDITIONS GO OUT
FROM THIS COURT MORE CLOSELY DEFINED THAN THEY ARE IN WHAT
HAS BEEN PROPOSED SUCH THAT MY CLIENT WHO HAS TO BE THE ONE
TO DECIDE -- HE IS THE FIRST LEVEL TO DECIDE HOW TO
INTERPRET IT, RATHER THAN TAKE A CHANCE, FOR EXAMPLE, AND
THEN HAVE THE PROBATION OFFICER DECIDE ONE WAY OR THE
OTHER.
THE COURT: BUT YOU ARE VASTLY OVERSTATING THE
CONCEPT OF TAKING A CHANCE. MR. MITNICK IS IN HERE BECAUSE
HE REALLY DID ENGAGE IN SOME CRIMINAL CONDUCT --
MR. RANDOLPH: I UNDERSTAND.
THE COURT: -- AFTER I SENTENCED HIM.
MR. RANDOLPH: I UNDERSTAND.
THE COURT: NOW ALL I SAY TO YOU, MR. MITNICK, IS
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DON'T ENGAGE IN ANYMORE AND WE WON'T HAVE ANY REASON TO GET
TOGETHER NO MATTER WHAT THE CONDITIONS SAY.
MR. RANDOLPH: WELL, YOUR HONOR, 1(F) REFERS TO
OTHER WIRELESS FORMS OF COMMUNICATION.
NOW, I THINK MR. MITNICK UNDERSTANDS, AS I AM SURE I
DO SITTING HERE IN COURT TODAY, THE SPIRIT OF WHAT THE
COURT IS PUTTING OUT. I GUESS MY OBJECTION IS --
THE COURT: WELL, I WILL ADMIT RIGHT THERE, THOUGH I
WILL LET THE GOVERNMENT SPEAK TO THIS, THAT I DON'T
NEED,"OR OTHER WIRELESS FORMS OF COMMUNICATION," SO IF YOU
WANT THAT STRICKEN, I WILL BE GLAD TO DO IT. PLEASE.
MR. RANDOLPH: GOING ON TO NUMBER 2, WE PROPOSED,
YOUR HONOR, IN OUR NUMBER 5 -- IN OUR PROPOSED CONDITION
NUMBER 5(A) LANGUAGE REGARDING WHAT HE COULD OR COULD NOT
BE EMPLOYED IN, AND I WOULD URGE THE COURT TO FOLLOW OURS.
I NOTE THAT THE COURT HAS LINED OUT IN THIS
PARTICULAR ONE "WITHOUT THE EXPRESS PRIOR APPROVAL OF THE
PROBATION OFFICER."
THE COURT: EVERY CONDITION BEGINS WITH THE WORDS
"WITHOUT THE PRIOR EXPRESS WRITTEN APPROVAL OF THE
PROBATION OFFICER."
MR. RANDOLPH: ALL RIGHT.
THE COURT: I HAVE LEFT THE PROBATION OFFICER WITH
THE ABILITY TO MODIFY ANY ONE OF THESE CONDITIONS, IF HE
FEELS THAT THAT IS APPROPRIATE.
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MR. RANDOLPH: ALL RIGHT. I MISUNDERSTOOD. I
UNDERSTAND NOW.
I THINK THAT GOING ON TO NUMBER 3, YOUR HONOR, WE
URGE AGAIN -- WE URGE THE COURT AND I WON'T REPEAT MYSELF
-- TO ACCEPT OUR CONDITION NUMBER 3, AND WE HAVE AGAIN THE
WORDS "OR OTHER FORMS OF WIRELESS COMMUNICATIONS."
FOR THE SAME REASONS THAT I WAS OBJECTING TO THAT
LANGUAGE IN 1(F), I WOULD ASK THE COURT TO DELETE THAT FROM
3 AS WELL.
THE COURT: NO. THIS ONE IS A DIFFERENT CONDITION.
THIS SAYS "ACCESS."
MR. RANDOLPH: WELL, OTHER THAN THE OTHER
OBJECTIONS I HAVE RAISED, I AM FOCUSING ON FORMS OF
WIRELESS COMMUNICATIONS WHICH INCLUDE INTERCOMS, CORDLESS
PHONES.
THE COURT: NO. THIS ONE I AM GOING TO LEAVE IN.
MR. RANDOLPH: I THINK THIS ONE IS IDENTICAL TO
1(F).
THE COURT: IT ISN'T. IT WASN'T INTENDED BY ME TO
BE, BUT I WILL LET THE GOVERNMENT SPEAK TO THAT.
MR. RANDOLPH: NUMBER 4. THE COURT HAS RENUMBERED
3(A) TO 4. I URGE THE COURT TO CONSIDER THAT THE LAST PART
OF THAT GROUPS "ENGAGED IN ANY COMPUTER-RELATED ACTIVITY."
I WOULD URGE THE COURT THAT NUMBER 4 IS VIOLATIVE OF THE
FIRST AMENDMENT RIGHTS OF FREEDOM OF SPEECH AND
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ASSOCIATION, AND IT IS VAGUE, PARTICULARLY WITH RESPECT TO
"COMPUTER-RELATED ACTIVITY."
THE COURT: WELL, YOU CAN TAKE THAT POSITION IF YOU
WANT TO.
MR. RANDOLPH: ALL RIGHT.
THIS WOULD BE RENUMBERED NUMBER 5.
AGAIN WE URGE THE COURT TO ACCEPT DEFENDANT
CONDITIONS 1 AND 2 WHICH WE THINK ADDRESS NUMBER 5. I SEE
THE COURT HAS DELETED THE CENTER PORTION OF THAT SO --
THE COURT: YES.
MR. RANDOLPH: ITEM NUMBER 6, WE HAD A SIMILAR ONE
AND OUR ITEMS 1 AND 2 ADDRESSED THAT. WE FELT, YOUR HONOR,
THE PROBLEM WITH NUMBER 6 IS TWO-FOLD. FIRST, I THINK THE
WORD "TECHNIQUE" IS VAGUE AND AMBIGUOUS, AND SECONDLY, THE
LANGUAGE THAT MAKES IT DIFFICULT -- "FOR ANY OTHER
PURPOSE," I AM NOT SURE THAT I UNDERSTAND, AND THEREFORE, I
AM UNABLE TO EXPLAIN TO MR. MITNICK HOW THE WORDS "FOR ANY
OTHER PURPOSE --" HOW THEY HAVE ANYTHING TO DO WITH THIS
CASE BECAUSE "FOR ANY OTHER PURPOSE" IS JUST TOO BROAD,
YOUR HONOR, AND I WOULD URGE THE COURT TO DELETE THE LAST 4
WORDS OF THAT PARTICULAR ITEM.
FINALLY, NUMBER 7.
THE COURT: ALL RIGHT. I AM SATISFIED THAT "FOR ANY
OTHER PURPOSE" SHOULD COME OUT.
MR. RANDOLPH: THANK YOU.
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FINALLY, NUMBER 7, YOUR HONOR, I BELIEVE THAT THAT
WAS SIMILAR, IF NOT IDENTICAL, TO ITEMS NUMBER 1 AND 2 THAT
WE PROPOSED TO THE COURT.
THE COURT: NO. I AM SATISFIED THAT ONE IS NOT TOO
BROAD.
MR. RANDOLPH: SO HAVING SAID THAT, YOUR HONOR, IF
I CAN, JUST AGAIN, I WOULD URGE THE COURT TO --
THE COURT: YOU HAVE GOT TO REMEMBER HOW WE GOT
HERE. REMEMBER HOW WE GOT HERE.
MR. RANDOLPH: I DO, YES, YOUR HONOR. THE THEME
THAT I AM URGING TO THE COURT, AND I UNDERSTAND THE SPIRIT
OF WHAT THE COURT IS SAYING, IT IS CLEAR TO ME AS I STAND
HERE BEFORE YOUR HONOR, I DON'T KNOW IF THAT SPIRIT WILL BE
CLEAR TO WHOEVER --
THE COURT: OH, YES, IT WILL, BECAUSE THE COURT IS
THE ULTIMATE DECISION-MAKER HERE, AND HE IS NOT GOING TO BE
FOUND IN VIOLATION OF SUPERVISED RELEASE IF HE IS NOT DOING
ANYTHING WRONG.
WHAT REASON WOULD THE COURT HAVE TO BE EXTREMELY
TECHNICAL ABOUT IT?
NO REASON WHATSOEVER. THERE IS NO DESIRE TO BE
PUNITIVE TOWARD HIM.
MR. RANDOLPH: I UNDERSTAND. I BELIEVE, YOUR
HONOR, THAT THE FIRST LINE OF DECISION AS TO WHETHER HE IS
DOING SOMETHING WRONG HAS TO BE WITH MR. MITNICK, AND HE
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MAY FEEL AS IF HE IS NOT DOING SOMETHING WRONG BUT
PROBATION MAY HAVE A DIFFERENT OPINION, NOT BECAUSE IT IS
INHERENTLY WRONG WHAT HE IS DOING BUT BECAUSE THEY FEEL
THAT IT VIOLATES THE LANGUAGE OF WHAT ULTIMATELY THE COURT
WILL ISSUE.
THE COURT: BUT THEY DON'T -- THE PROBATION OFFICER
REPORTS TO THE COURT, AND THE PROBATION OFFICER SIMPLY
WRITES A LETTER AND GIVES THE COURT THE PROBATION OFFICER'S
OPINION ABOUT SOMETHING WHICH IS IN THE OFFICER'S OPINION
QUESTIONABLE ACTIVITY. IN MANY, MANY INSTANCES -- IN MOST
INSTANCES WE DON'T DO ANYTHING ABOUT IT AT ALL, AND IN ONLY
A SMALL NUMBER OF THESE INSTANCES DOES THE OFFICER SUGGEST
THAT THERE BE A HEARING ON WHETHER THERE HAS BEEN A
VIOLATION. YOU AND I BOTH KNOW THAT, MR. RANDOLPH.
MR. RANDOLPH: I UNDERSTAND, YOUR HONOR, AND I
GUESS I HAVE MORE FAITH IN THE COURT'S ABILITY TO DISCERN
WHAT THE SPIRIT IS THAN THE PROBATION OFFICER, AND I GUESS
-- I THINK WE HAVE SEEN INSTANCES WHERE THE OPINION OF THE
PROBATION OFFICER EVEN IN THIS CASE ISN'T ALWAYS BORN OUT
BY THE FACTS.
THE COURT: WELL, I DO HAVE TO SAY ONE THING ABOUT
THE PROBATION OFFICER, MR. GULLA. I AM VERY SYMPATHETIC TO
HOW DIFFICULT IT IS TO SUPERVISE PEOPLE, AND I AM ALSO VERY
SYMPATHETIC TO WHAT HAPPENED TO HIM HERE IN THE COURTROOM
DURING THE EVIDENTIARY HEARING. IT IS HARD AS A PUBLIC
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SERVANT TO TRY TO DO THE BEST YOU CAN AND THEN BE ATTACKED
ON THE WITNESS STAND. THAT IS THE WAY WE CONDUCT HEARINGS,
THOUGH, AND THERE IS NOTHING THAT THE COURT CAN DO ABOUT
THAT, BUT MR. GULLA DIDN'T DO ANYTHING WRONG AND YET HE WAS
ATTACKED AT THE HEARING AS IF HE HAD.
NOW, THIS LANGUAGE IS AN ATTEMPT TO KEEP ANY FUTURE
HEARINGS FROM TAKING PLACE.
MR. PAINTER: VERY BRIEFLY, YOUR HONOR. THE
GOVERNMENT BELIEVES THE CONDITIONS PROPOSED BY THE COURT
ARE APPROPRIATE.
THE ONLY POINTS WE WOULD LIKE TO ADDRESS ARE JUST
WHAT WAS ADDRESSED BY MR. RANDOLPH.
" 1(F), CELLULAR PHONES OR OTHER WIRELESS FORMS OF
COMMUNICATION," THE ONLY CONCERN THERE, YOUR HONOR, I
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UNDERSTAND THERE ARE OTHER THINGS LIKE CELLULAR PHONES OR
CELLULAR PHONE NETWORKS.
I PROPOSE MAKING THAT "CELLULAR PHONES OR SIMILAR
DEVICES."
THE COURT: WE WILL NEVER BE ABLE TO WRITE IT IN A
SATISFACTORY --
MR. PAINTER: I UNDERSTAND. THE PROBATION OFFICER
IN RESPONSE TO DEFENSE COUNSEL'S STATEMENT, IF MR. MITNICK
HAS A QUESTION AS TO WHETHER OR NOT HE CAN OWN A COMPUTER,
AND I THINK THE COURT IS RIGHT IN STATING THE RISK OF
OWNING A LAP-TOP BECAUSE WE CAN WRITE CODES THAT MIGHT HELP
HIM BREAK INTO COMPUTERS WHICH IS SOMETHING THE COURT IS
CONCERNED WITH.
HE DOESN'T HAVE TO MAKE THAT DECISION WITH THE
COURT. HE CAN GO TO THE PROBATION OFFICER AND SAY," CAN I
GET THIS?" AND THAT, I THINK, RESOLVES THE PROBLEM.
I THINK THE COURT RESOLVES THAT BY MAKING EVERYTHING
SUBJECT TO THE EXPRESS APPROVAL OF THE PROBATION OFFICER,
AND WITH THAT, YOUR HONOR, THE GOVERNMENT HAS NO FURTHER
COMMENTS ON THE PROPOSED CONDITIONS AS AMENDED BY YOUR
HONOR AND WOULD ONLY ASK THAT, JUST FOR THE RECORD, SECTION
5(D)1.3 RELATING TO CONDITIONS OF SUPERVISED RELEASE --
JUST ASK THE COURT -- AND I THINK THE COURT HAS STATED
THIS --
THE COURT: WHAT ARE YOU REFERRING TO NOW?
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MR. PAINTER: GUIDELINE SECTION 5(D)1.3 SAYS WHEN
THE COURT IS IMPOSING CONDITIONS OF SUPERVISED RELEASE THAT
IT SHOULD TAKE INTO ACCOUNT THE NATURE AND CIRCUMSTANCES OF
THE OFFENSE AND THE CHARACTERISTICS OF THE DEFENDANT.
I BELIEVE THE COURT HAS, IN FACT, DONE THAT IN
STATING IT FOUND THE DEFENDANT POSED A DANGER TO THE
COMMUNITY FOR HIS PRIOR ACTIVITIES.
THE COURT: WELL, YOU CERTAINLY WOULD NOT DISAGREE
WITH THAT.
MR. PAINTER: NOT AT ALL, YOUR HONOR. I JUST WANTED
TO MAKE CLEAR THAT YOU MADE THAT FINDING, AND SECOND, THAT
THESE CONDITIONS THE COURT FINDS ARE NECESSARY --
REASONABLY NECESSARY TO EFFECTUATE THE GOAL OF PROTECTING
THE COMMUNITY.
THE COURT: I THINK YOU ARE CONCERNED ABOUT PROTECTING
THE RECORD.
MR. PAINTER: I AM, YOUR HONOR.
THE COURT: AND I THINK THAT IS APPROPRIATE ON YOUR
PART.
MR. PAINTER: SO I ASSUME YOU HAVE MADE THAT
FINDING AS WELL, YOUR HONOR.
THE COURT: I HAVE.
MR. PAINTER: THERE WAS ONE OTHER ISSUE UNRELATED
TO THE CONDITIONS OF SUPERVISED RELEASE WHICH WAS A FILING
THE DEFENSE COUNSEL MADE ASKING FOR CERTAIN SECTIONS OF THE
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PRESENTENCE REPORT TO BE STRUCK.
THE COURT: I WILL GET TO THAT.
MR. PAINTER: OKAY. WE WANTED A CHANCE TO SPEAK TO
THAT. THAT IS ALL I WANT TO SAY.
THE COURT: NOW DOES MR. MITNICK WANT TO BE HEARD?
MR. RANDOLPH: NO, HE DOESN'T, BECAUSE OF THE
PENDING INDICTMENT.
THE COURT: MR. MITNICK, DO YOU WISH TO BE HEARD?
THE DEFENDANT: NO, YOUR HONOR.
THE COURT: ALL RIGHT. NOW GOING OVER THOSE
CONDITIONS, WITHOUT THE PRIOR EXPRESS WRITTEN APPROVAL OF
THE PROBATION OFFICER, ONE, THE DEFENDANT SHALL NOT POSSESS
OR USE FOR ANY PURPOSE THE FOLLOWING (A), ANY COMPUTER
HARDWARE EQUIPMENT, (B) ANY COMPUTER SOFTWARE PROGRAMS, (C)
MODUM, (D), ANY COMPUTER-RELATED PERIPHERAL OR SUPPORT
EQUIPMENT, (E) PORTABLE LAP-TOP COMPUTERS, PERSONAL
INFORMATION ASSISTANCE AND DERIVATIVES, (F), CELLULAR
TELEPHONES, (G), TELEVISIONS OR OTHER INSTRUMENTS OF
COMMUNICATION EQUIPPED WITH ON-LINE INTERNET OR WORLDWIDE
WEB OR OTHER COMPUTER NETWORK ACCESS, (H), ANY OTHER
ELECTRONIC EQUIPMENT PRESENTLY AVAILABLE OR NEW TECHNOLOGY
THAT BECOMES AVAILABLE THAT CAN BE CONVERTED TO OR HAS AS
ITS FUNCTION THE ABILITY TO ACT AS A COMPUTER SYSTEM OR TO
ACCESS A COMPUTER SYSTEM, COMPUTER NETWORK OR
TELECOMMUNICATIONS NETWORK, EXCEPT THE DEFENDANT MAY
POSSESS A LAND-LINE TELEPHONE.
TWO, THE DEFENDANT SHALL NOT BE EMPLOYED IN OR
PERFORM SERVICES FOR ANY ENTITY ENGAGED IN THE COMPUTER
SOFTWARE OR TELECOMMUNICATIONS BUSINESS AND SHALL NOT BE
EMPLOYED IN ANY CAPACITY WHEREIN HE HAS ACCESS TO COMPUTERS
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OR COMPUTER-RELATED EQUIPMENT OR SOFTWARE.
THREE, THAT THE DEFENDANT SHALL NOT ACCESS
COMPUTERS, COMPUTER NETWORKS OR OTHER FORMS OF WIRELESS
COMMUNICATIONS HIMSELF OR THROUGH THIRD PARTIES.
FOUR, THE DEFENDANT SHALL NOT ACT AS CONSULTANT OR
ADVISER TO INDIVIDUALS OR GROUPS ENGAGED IN ANY COMPUTER-
RELATED ACTIVITY.
FIVE, THE DEFENDANT SHALL NOT ACQUIRE OR POSSESS ANY
COMPUTER CODES INCLUDING COMPUTER PASS-WORDS, CELLULAR
PHONE ACCESS CODES OR OTHER ACCESS DEVICES THAT ENABLE THE
DEFENDANT TO USE ACQUIRE, EXCHANGE OR ALTER INFORMATION IN
A COMPUTER OR TELECOMMUNICATIONS DATA BASE SYSTEM.
SIX, THE DEFENDANT SHALL NOT USE OR POSSESS ANY DATA
ENCRYPTION DEVICE, PROGRAM OR TECHNIQUE FOR COMPUTERS.
SEVEN, THE DEFENDANT SHALL NOT ALTER OR POSSESS ANY
ALTERED TELEPHONE, TELEPHONE EQUIPMENT OR ANY OTHER
COMMUNICATIONS-RELATED EQUIPMENT.
EIGHT, HE SHALL ONLY USE HIS TRUE NAME AND NOT USE
ANY ALIAS OR OTHER FALSE IDENTITY."
NOW I WANT TO JUST ADD THIS. THOSE CONDITIONS THAT
I JUST READ ARE IN ADDITION TO HIS COMPLYING WITH THE RULES
AND REGULATIONS OF THE U.S. PROBATION OFFICE IN GENERAL
ORDER 318. HE IS TO REFRAIN FROM THE USE OF ANY CONTROLLED
SUBSTANCE. IF THE AMOUNT OF ANY ASSESSMENT IMPOSED BY THE
JUDGMENT REMAINS UNPAID AT THE COMMENCEMENT OF THE TERM OF
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COMMUNITY SUPERVISION HE IS TO PAY THE REMAINDER AS
DIRECTED BY THE PROBATION OFFICER, AND AS I SAID BEFORE HE
IS NOT TO OBTAIN OR POSSESS ANY DRIVER'S LICENSE, SOCIAL
SECURITY NUMBER, BIRTH CERTIFICATE, PASSPORT OR ANY OTHER
FORM OF IDENTIFICATION WITHOUT THE PRIOR APPROVAL OF THE
PROBATION OFFICER, AND HE IS NOT TO USE FOR ANY PURPOSE OR
IN ANY MANNER ANY NAME OTHER THAN HIS TRUE AND LEGAL NAME.
HE IS NOT TO CHANGE HIS NAME DURING THE TERM OF COMMUNITY
SUPERVISION WITHOUT THE EXPRESS APPROVAL OF THE COURT. I
HAVE ALREADY SAID THAT ALL FINES ARE WAIVED AS IT IS FOUND
THAT HE DOESN'T HAVE THE ABILITY TO PAY, AND I AM NOT
ORDERING RESTITUTION ON THE SAME BASIS AND BASED ON HIS
LIMITED FUTURE EARNING ABILITY. HE IS TO PAY AS I SAID AT
THE LAST HEARING, A SPECIAL ASSESSMENT OF 50 DOLLARS. NOW,
WE WILL DO THE JUDGMENT AND COMMITTAL ORDER, AND SO LET'S
GO ON TO CHANGING THE REPORT.
MR. PAINTER: YOUR HONOR, I BELIEVE THE DEFENSE HAS
FILED THE PROPOSED ORDER SO IF IT PLEASES THE COURT CAN
COMMENT AND THE GOVERNMENT CAN COMMENT BRIEFLY ON THAT.
THE COURT: JUST LET ME GET THAT PART OF IT. NOW
YOU KNOW THAT THE SENTENCE, MR. FLORES, IS IMPOSED ON 1 AND
2.
MR. PAINTER: I THINK IT IS ONLY COUNT 2, YOUR
HONOR.
THE COURT: ONLY ON 2, YES. I AM JUST REMINDING HIM
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I SAID THAT AT THE PRIOR HEARING BUT I JUST WANT TO BE
SURE.
THE COURT: JUST A MINUTE.
MR. PAINTER: I AM SORRY. ALL RIGHT.
THE COURT: ALL RIGHT. STARTING WITH PARAGRAPH 12.
MR. PAINTER: YOUR HONOR, PARAGRAPHS 12, 13, 14 AND
15 IN THE PRESENTENCE REPORT DEAL WITH INFORMATION THAT WAS
PRESENTED IN THE AFFIDAVIT OF SPECIAL AGENT BURNS OF THE
F.B.I. THAT RESULTED IN DEFENDANT'S ARREST. NOW THE COURT
DID NOT RELY AND THE GOVERNMENT DID NOT RELY ON THE
DEFENDANT'S HACKING ACTIVITIES OUTSIDE OF NORTH CAROLINA IN
REACHING ITS SENTENCE. NEVERTHELESS, ALL OF THAT
INFORMATION IS ACCURATE. IT WAS DETAILED IN THAT AFFIDAVIT
AND THE GOVERNMENT DOESN'T SEE ANY REASON TO STRIKE THAT
INFORMATION, AND YOUR HONOR, SEVERAL PIECES OF INFORMATION
THE DEFENSE SEEKS TO STRIKE PARTICULARLY IN PARAGRAPHS 14
AND 15 DEAL EXPRESSLY WITH DEFENDANT'S CONDUCT IN NORTH
CAROLINA, PARTICULARLY THE FIRST 2 SENTENCES OF PARAGRAPH
14 DEALING WITH THE DEFENDANT'S ACCESS BY CELLULAR PHONE
THE NUMBERS FOR NET-COM IN NORTH CAROLINA. PARAGRAPH 15,
THE FIRST, I BELIEVE, 2 SENTENCES OF THAT DEAL WITH -- 3
SENTENCES OF THAT DEAL WITH THE DEFENDANT'S MODUM ACCESS
OVER CELLULAR PHONE LINES. THE DEFENSE HAS ACCESS TO ALL
THE CELLULAR RECORDS THAT SHOW THIS WHERE HE ACCESSES AGAIN
THE NET-COM DIAL UP IN NORTH CAROLINA, THAT EVEN IF THE
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DEFENSE PREVAILS ON ITS ARGUMENT THAT THE COURT SHOULD
EXCISE ANYTHING RELATING TO HACKING, THE GOVERNMENT
BELIEVES IT IS ACCURATE. EVEN THOUGH THE COURT DID NOT RELY
ON IT, THOSE PIECES OF INFORMATION ARE STILL RELEVANT.
THE COURT: THE COURT DID NOT RELY ON IT.
MR. PAINTER: THE COURT DID NOT RELY ON THE
INFORMATION RELATING TO HIS E-MAIL. OTHER THINGS THE COURT
FOUND IN THIS PROCEEDING WHICH DEFENDANT ADMITTED TO IS
USING THE CELLULAR PHONE TO ACCESS CELLULAR PHONE NETWORKS.
I THINK EVEN MR. RANDOLPH WOULD AGREE, AND WE HAVE
DISCUSSED THIS BRIEFLY BEFORE, IF HE WERE TO STRIKE -- HE
MAY HAVE BEEN TOO BROAD IN HIS STRIKING OF PARAGRAPHS 14
AND 15 AND WHAT HE REALLY OBJECTS TO IS THE STATEMENTS IN
PARAGRAPH 14 ABOUT ATTACKING OTHER PLATFORMS AND OTHER --
PARAGRAPH 15 IS ABOUT ATTACKS ON VARIOUS E-MAILS.
THE COURT: YES, THAT'S RIGHT.
MR. PAINTER: BUT I THINK HE ASKED THAT THE ENTIRE
14 AND 15 BE STRUCK. THAT IS OVERBROAD. I THINK THE FIRST
FEW SENTENCES OF EACH OF THOSE PARAGRAPHS ARE VERY RELEVANT
TO THE CONDUCT HERE AND DO NOT DEAL WITH CONDUCT OUTSIDE
NORTH CAROLINA, YOUR HONOR.
THE COURT: EVEN IF I STRUCK 12, 13, 14 AND 15, IT
WOULD BE MEANINGLESS IN TERMS OF HIS SENTENCE.
MR. PAINTER: I UNDERSTAND THAT, YOUR HONOR. THAT
IS THE OTHER POINT. I DON'T THINK THE COURT NEEDS TO STRIKE
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THAT INFORMATION. IT IS ACCURATE INFORMATION. THERE IS NO
REASON TO STRIKE IT IN TOTO, ANYWAY, BECAUSE THE COURT HAS
MADE THE FINDING THAT YOU ARE NOT RELYING ON THOSE
PARTICULAR PARAGRAPHS.
THE COURT: I DID THAT, AND I AM HAPPY TO STRIKE
THESE.
MR. PAINTER: WELL, YOUR HONOR, WHAT THE GOVERNMENT
WOULD ASK IN THAT CASE, AND I THINK THE DEFENSE COUNSEL MAY
AGREE WITH THIS, IF YOU ARE GOING TO STRIKE ANYTHING, TO
STRIKE ALL OF 12, ALL OF 13, JUST THE LAST SENTENCE OF 14
AND THE LAST 3 SENTENCES OF 15.
THE COURT: THAT'S ALL RIGHT. YOU CAN REDO THIS
ORDER --
MR. PAINTER: OKAY.
THE COURT: -- TO THAT EFFECT. NOW THERE IS ONE
OTHER THING.
MR. PAINTER: THERE ARE A NUMBER OF OTHER THINGS.
THE COURT: YES.
MR. PAINTER: PARAGRAPHS 39 THROUGH 44, THE
GOVERNMENT HAS CONSULTED THE PRIOR PRESENTENCE REPORT FROM
THE 1989 CASE.
THE COURT: IT IS IN THERE.
MR. PAINTER: IT IS IN THERE; THE SAME WITH
PARAGRAPH 47.
THE COURT: THAT'S RIGHT. IT IS IN THERE.
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MR. PAINTER: THE SAME WITH PARAGRAPH 49.
THE COURT: THAT'S RIGHT.
MR. PAINTER: THE GOVERNMENT SEES NO REASON TO
STRIKE THAT INFORMATION. THE GOVERNMENT HAS NO OBJECTION TO
THE REVISION OF PARAGRAPH 56.
THE COURT: WAIT JUST A MINUTE.
THAT'S RIGHT. I THINK 56 SHOULD BE.
MR. PAINTER: AND THAT IS ALL THE COMMENTS THE
GOVERNMENT HAS ON THAT, YOUR HONOR.
THE COURT: PLEASE.
MR. RANDOLPH: THANK YOU. COUNSEL IS CORRECT, YOUR
HONOR, AND I WILL CONCEDE TO THE POINT THAT HE RAISED ABOUT
PARAGRAPH 14. I BELIEVE WE SAID IN THE ALTERNATIVE WE
BELIEVE THAT THE WORD ATTACK SHOULD BE STRICKEN FOR THE
REASONS SET FORTH IN MY MEMORANDUM.
THE COURT: AND THAT MAY BE STRICKEN.
MR. RANDOLPH: THANK YOU.
FIFTEEN -- I WILL AGREE WITH COUNSEL THAT 15 IS THE
ONLY PORTION TO BE STRICKEN. I BELIEVE IT BEGINS WITH THE
WORDS," BY THE WAY OF THESE MODUM TRANSMISSIONS." COUNSEL
AND THE COURT AGREE. WITH RESPECT TO PARAGRAPHS 39 THROUGH
44, 47 AND 49, FIRST 39 THROUGH 44, I WAS NOT COUNSEL IN
THE 1989 CASE WHEN THESE MATTERS WERE SET FORTH IN THE
P.S.R. I BELIEVE THE OBJECTION SHOULD HAVE BEEN RAISED AT
THAT TIME BY HIS COUNSEL. FOR THE REASONS WE SET FORTH IN
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OUR MEMORANDUM WE ARE ASKING THAT THEY BE STRICKEN NOW,
YOUR HONOR. THE REASON IS THAT I HAVE FOUND THAT IT IS
IMPORTANT TO MAKE AN EFFORT TO STRIKE IRRELEVANT --
THE COURT: NOBODY USED THOSE.
MR. RANDOLPH: PARDON.
THE COURT: THE COURT DIDN'T USE THOSE.
MR. RANDOLPH: IT IS NOT SO MUCH THE CONCERN ABOUT
WHAT THE COURT USES BUT HOW A P.S.R. IS USED IN THE FUTURE
IF INFORMATION IS PRESENTED, AND I DON'T OBJECT TO IT ON
BEHALF OF MR. MITNICK. THEN IT BECOMES A FAIT ACOMPLI AND
THE TRUTH BEING UNASSAILED, THEREFORE, IS ACCEPTED.
MR. MITNICK -- WE DON'T CONCUR WITH THE ACCURACY OF
THOSE EVENTS THAT ARE SET FORTH IN THAT PARAGRAPH. WE HAVE
NEVER BEEN ABLE TO SEE THE DOCUMENTATION. IT IS NOT CLEAR
IF THE PERSON WHO I BELIEVE PENNED THE FIRST P.S.R. SAW ANY
DOCUMENTATION IN SUPPORT OF THESE ALLEGATIONS, AND WE DON'T
THINK IT SHOULD BE CONTAINED IN ANY DOCUMENT THAT COULD BE
USED BY THE BUREAU OF PRISONS AND, GOD FORBID, THAT THERE
IS ANOTHER P.S.R.
THE COURT: IF THERE IS ANOTHER P.S.R. WE ARE GOING
TO HAVE AN ENTIRELY DIFFERENT MATTER.
MR. RANDOLPH: I UNDERSTAND.
I AM JUST CONCERNED ABOUT THE PERPETUATION OF
INFORMATION THAT IS BOTH IRRELEVANT AND WE BELIEVE IS
INACCURATE AND THAT IS WHY WE OBJECTED TO 39 THROUGH 44, 47
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FOR THE SAME REASON, YOUR HONOR, AND 49 PARTICULARLY
BECAUSE THAT -
THE COURT: WELL, I AGREE WITH YOU ABOUT 49.
MR. RANDOLPH: ALL RIGHT. THANK YOU. I HAVE MADE
MY ARGUMENTS WITH RESPECT TO THE OTHERS AND I APPRECIATE
THE COURT'S TIME.
THE COURT: ALL RIGHT. YOU DO THE ORDER.
MR. PAINTER: WE WILL.
THE COURT: DO IT OVER AGAIN. SHOW IT TO MR.
RANDOLPH.
MR. PAINTER: I WILL CLEAR IT WITH MR. RANDOLPH
BEFORE WE SUBMIT IT.
THE COURT: ALL RIGHT. NOW HAVE I LEFT ANYTHING OUT
OF THIS VOLUMINOUS RECORD?
MR. PAINTER: I BELIEVE, YOUR HONOR, THAT WE SHOULD
MOVE AT THIS TIME IN THE INTERESTS OF JUSTICE TO DISMISS
COUNT 1 AND I BELIEVE 3 THROUGH 23 OF THE INDICTMENT IN
CR. 95-603 MRP.
THE COURT: YES.
MR. PAINTER: ALSO THE COURT NEEDS TO ADVISE THE
DEFENDANT OF HIS RIGHT TO APPEAL.
THE COURT: YOU HAVE A RIGHT TO APPEAL.
MR. RANDOLPH: YOUR HONOR, I HAVE A COUPLE MINOR
MATTERS. ONE, SINCE THERE HAS NEVER BEEN ANY ALLEGATION
THAT MY CLIENT HAS ANY INVOLVEMENT WITH DRUGS I WONDER IF
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THE COURT WOULD WAIVE ANY DRUG TESTING CONDITIONS.
THE COURT: THAT IS A STANDARD REQUIREMENT. IT IS
LIKE ADHERING TO AND OBEYING THE RULES AND REGULATIONS OF
THE COURT AND THE PROBATION OFFICE.
MR. RANDOLPH: I UNDERSTAND, YOUR HONOR. SECONDLY,
I WONDER IF THE COURT WOULD BECAUSE OF THE UNUSUAL TIMING
OF THIS SITUATION, AND PARTICULARLY IN LIGHT OF THE FACT
THAT WE STILL HAVE A PENDING INDICTMENT WHICH WE HAVE
ARGUED IS RELATED TO THE CONDUCT OF THE NORTH CAROLINA
CASE, NOTWITHSTANDING THE GOVERNMENT'S POSITION IN THAT
REGARD, AND THE COURT HAS SENTENCED MY CLIENT, WOULD THE
COURT CONSIDER STAYING EXECUTION OF THE SENTENCE IN THE
NORTH CAROLINA CASE UNTIL RESOLUTION OF THE PENDING
INDICTMENT? THE REASON FOR THAT IS VERY BASIC, YOUR HONOR.
IF THE COURT STAYS EXECUTION OF THE 8 MONTH SENTENCE THAT
IT HAS GIVEN, THIS COURT WILL MAINTAIN JURISDICTION SHOULD
THE CURRENT INDICTMENT END UP IN A SENTENCE OF
INCARCERATION. YOU WILL MAINTAIN JURISDICTION TO MAKE THAT
SENTENCE CONCURRENT WITH THE 8 MONTH SENTENCE FROM NORTH
CAROLINA. ON THE OTHER HAND, IF YOU DO NOT STAY EXECUTION
OF THAT SENTENCE THEN HE WILL NO LONGER BE UNDER AN
UNEXECUTED TERM OF IMPRISONMENT, AND THEREFORE, YOU WILL
NOT HAVE THE JURISDICTION TO MAKE THEM CONCURRENT IF YOU
SAW FIT.
THE COURT: I WILL NOT HAVE THE JURISDICTION TO
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MAKE THEM CONCURRENT?
MR. RANDOLPH: CORRECT, YOUR HONOR, BECAUSE HE HAS
ALREADY BEEN IN CUSTODY UNDER BOTH OF THESE 2 SENTENCES
BEYOND THE TIME THAT THE 2 SENTENCES COMBINED WOULD CREATE.
MR. PAINTER: YOUR HONOR, TO THE EXTENT THE COURT
FINDS IF THERE IS A CONVICTION ON THE NEW CHARGES OR AT THE
SENTENCING OF THE NEW CHARGES OR THE PENDING INDICTMENT IF
THE COURT FINDS, IN FACT, THE NORTH CAROLINA CONDUCT SHOULD
BE COUNTED AS RELEVANT CONDUCT, AT THAT TIME THE COURT CAN
REFLECT THAT IN THE SENTENCING IMPOSED IN THAT CASE AND
REFLECTS IT EITHER WITHIN THE RANGE AND CAN REFLECT IT BY
DEPARTING DOWNWARD -- THE COURT COULD DO A NUMBER OF THINGS
AT THAT POINT. THERE IS NO REASON TO STAY THE EXECUTION OF
THE SENTENCE HERE.
THE COURT: WELL, I AM NOT GOING TO.
MR. RANDOLPH: I AGREE THE COURT CAN DO OTHER
THINGS TO ACCOMPLISH THE SAME THING.
THE COURT: I CAN.
MR. RANDOLPH: FINALLY, YOUR HONOR, I HAD ASKED THE
COURT THE OTHER DAY BECAUSE OF THE LENGTHY EVIDENTIARY
HEARINGS WE HAVE HAD THAT THE COURT MAKE A FINDING THAT ON
OR ABOUT DECEMBER 7, 1992 THE EVIDENCE WAS INSUFFICIENT TO
ESTABLISH THAT MY CLIENT WAS EITHER A FUGITIVE OR AN
ABSCONDER FROM SUPERVISED RELEASE. THERE WILL NEVER BE
ANOTHER BODY OR TRIER OF FACT WHO HAS HEARD MORE EVIDENCE
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IN THIS REGARD THAN YOUR HONOR HAS AND THAT ALLEGATION HAS
BEEN MADE NUMEROUS TIMES BY BOTH PROBATION AND THE
GOVERNMENT. IT HAS AN IMPACT ON HIS SECURITY LEVEL WITH
THE BUREAU OF PRISONS AS WELL AS AN IMPACT IN OTHER WAYS
THAT MAY COME UP IN THE FUTURE, AND I BELIEVE THAT THE
GOVERNMENT HAS NOT SUSTAINED ITS BURDEN THAT ON OR BEFORE
THAT DATE -- NOT THE NEXT DAY OR THE NEXT WEEK BUT ON OR
BEFORE DECEMBER 7, 1992 I WOULD ASK THE COURT TO MAKE A
FINDING, AND I THINK THE COURT'S FINDINGS HAVE BEEN
CONSISTENT WITH THIS POINT, THAT THE EVIDENCE WAS
INSUFFICIENT TO ESTABLISH THAT HE WAS A FUGITIVE OR
ABSCONDER ON OR BEFORE THAT DATE.
MR. PAINTER: YOUR HONOR, BRIEFLY. I BELIEVE WHAT
THE COURT FOUND WAS," I DON'T NEED TO MAKE THAT DECISION. I
DON'T NEED TO GET INTO THAT BECAUSE I AM GOING TO FIND HIM
IN VIOLATION OF COUNTS 1 AND 2."
THE GOVERNMENT BELIEVES THE BURDEN WAS SUSTAINED TO
SHOW HE ABSENTED HIMSELF FROM THE JURISDICTION OF THE
PROBATION OFFICER. I WOULD ASK THE COURT NOT TO MAKE A
FINDING.
THE COURT: I AM NOT GOING TO MAKE A FINDING. I
DON'T HAVE TO MAKE A FINDING.
I HAVE MADE A FINDING ON WHAT I SENTENCED HIM ON.
MR. RANDOLPH: JUST A COUPLE OTHER MINOR MATTERS,
YOUR HONOR. WOULD THE COURT ISSUE AN ORDER THAT MY CLIENT
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MAY REMAIN AT THE METROPOLITAN DETENTION CENTER PENDING
DESIGNATION?
THE COURT: WELL, ARE THEY INTENDING TO TAKE HIM TO
ANOTHER LOCATION?
MR. RANDOLPH: YOUR HONOR, THE ONLY INFORMATION I
HAVE IS WHEN THE COURT HAS MADE AN ORDER THAT HE IS TO
REMAIN DURING THE 1988 CASE I BELIEVE THE WAY THE ORDER
READS IS "AND ANY RELATED MATTERS." I DON'T KNOW.
THE COURT: WHAT IS RELATED?
MR. RANDOLPH: WELL, I WOULD CERTAINLY ASSUME THAT
THE PENDING INDICTMENT IS RELATED.
THE COURT: WELL THAT IS ARGUABLY TRUE.
MR. RANDOLPH: IF THE COURT ORDERS HIM -- ACTUALLY
IF THE COURT -- BASED UPON THE COURT'S STATEMENT IN THAT
REGARD, THE PENDING MATTER IS STILL RELATED TO THE 1988
MATTER, THEN THE CURRENT ORDER KEEPING HIM THERE WOULD
REMAIN IN EFFECT WHICH IS ESSENTIALLY WHAT I AM ASKING FOR.
THE COURT: WELL THAT IS WHERE HE IS GOING TO BE.
ANYTHING MORE FROM THE GOVERNMENT?
MR. PAINTER: NOTHING, YOUR HONOR.
THE COURT: ALL RIGHT. THANK YOU.
MR. RANDOLPH: THANK YOU VERY MUCH.
MR. PAINTER: THANK YOU, YOUR HONOR.
THE COURT: MR. FLORES WILL SHOW THE GOVERNMENT AND
YOU, MR. RANDOLPH, THE JUDGMENT AND COMMITTAL ORDER WHEN IT
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IS TYPED UP SO THAT YOU CAN POINT OUT TO HIM ANYTHING THAT
HE HAS DONE THAT IS IN ERROR BASED ON ALL THESE LENGTHY
PROCEEDINGS.
MR. RANDOLPH: THANK YOU, YOUR HONOR.
MR. PAINTER: THANK YOU, YOUR HONOR.
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C E R T I F I C A T E
STATE OF CALIFORNIA :
: CR. 88-1031-B MRP
CR. 95-603 MRP
COUNTY OF LOS ANGELES :
I HEREBY CERTIFY THAT THE FOREGOING MATTER
ENTITLED UNITED STATES OF AMERICA VERSUS KEVIN MITNICK IS
TRANSCRIBED FROM THE STENOGRAPHIC NOTES TAKEN BY ME AND IS
A TRUE AND ACCURATE TRANSCRIPTION OF THE SAME.
_______________________________
BETH ESTHER ZACCARO DATED: 9-8-97
OFFICIAL COURT REPORTER