THE COURT:   ALL RIGHT. YOU ARE APPOINTED.  NOW LET'S

SET SOME DATES.

     MR. PAINTER:   YOUR HONOR, I HAVE SPOKEN WITH MR.

RANDOLPH AND MR. SHERMAN.   MR. RANDOLPH'S POSITION IS AT

THIS TIME HE IS NOT FAMILIAR WITH WHAT THE CASE ENTAILS

EITHER FOR THE SENTENCING ON THE PROBATION OR THE

SUPERVISED RELEASE REVOCATION AND THE NORTH CAROLINA RULE

20 CASE OR ON THE PENDING INDICTMENT, AND WHAT WE WOULD

LIKE TO DO TO GIVE HIM SOME TIME TO FAMILIARIZE HIMSELF

WITH ALL OF THOSE THINGS AND DECIDE WHEN THE SENTENCING



                                                      (4)


SHOULD GO FORWARD AND TO SET A STATUS CONFERENCE IN EARLY 

NOVEMBER WHERE THE COURT CAN FIRST AT THAT TIME SET A 

SENTENCING DATE ON THE FIRST TWO MATTERS, AND SECOND, SET A 

TRIAL DATE WITH RESPECT TO THE PENDING INDICTMENT.

     THE COURT:   I CAN'T DO THAT.  THE REASON I CAN'T DO 

IT THAT WAY IS THAT IF WE AREN'T CAREFUL WE ARE GOING TO 

MISS THE SPEEDY TRIAL DATE ON THE THIRD CASE.

     MR. PAINTER:   I UNDERSTAND THAT, YOUR HONOR.  MY

BELIEF IS THE SPEEDY TRIAL ACT ON THE THIRD DATE RUNS

ESSENTIALLY DECEMBER 6TH IS THE DATE I GAVE MR. DEPAYNE.

     THE COURT:   YES.

     MR. PAINTER:   IF WE SET A STATUS CONFERENCE

NOVEMBER 4TH THAT STILL LEAVES TIME TO SET A TRIAL WITHIN

THAT PERIOD. MY UNDERSTANDING ALSO IS THAT -- AND MR.

RANDOLPH CAN SPEAK TO THIS -- HE FEELS THE CASE IS

COMPLICATED ENOUGH THAT HE IS NOT GOING TO -- HE DOES

BELIEVE THAT THE TRIAL CAN BE SET WITHIN THE SPEEDY TRIAL

ACT FOR HIM TO BE PREPARED ADEQUATELY.

     MR. SHERMAN:   I WOULD JOIN, YOUR HONOR.  I DON'T

THINK THIS IS GOING TO BE A SPEEDY TRIAL CASE.

     THE COURT:   I DON'T KNOW YET.

     MR. RANDOLPH:   THAT IS THE PROBLEM.  IT APPEARS FROM

WHAT LITTLE I KNOW WITHIN THE LAST WEEK HAVING TALKED WITH

CO-COUNSEL AND GOVERNMENT COUNSEL THAT THAT APPEARS TO BE

THE CASE.  INASMUCH AS MY CLIENT IS IN CUSTODY AND I



                                                      (5)


HAVEN'T HAD A CHANCE TO ADDRESS THAT ISSUE WITH THE COURT

YET, THAT IS WHY I WAS HOPING THAT WE COULD SET IT FOR THE

NOVEMBER 4TH DATE.  IF FOR SOME REASON IT IS NOT GOING TO

BE A TRIAL MATTER WHICH WON'T MAKE ANY DIFFERENCE IF

SOMEHOW THE TRIAL ISSUES WOULD BE SUFFICIENTLY RESTRICTED

THROUGH PRETRIAL MOTIONS SUCH THAT IT WOULDN'T BECOME A

COMPLEX CASE, IT WILL REMAIN A COMPLEX CASE, THEN I SUPPOSE

WE MIGHT BE ABLE TO REMAIN WITHIN THE STATUTORY MAXIMUM,

BUT IT DOES APPEAR AT THIS POINT IN TIME IT IS A COMPLEX

CASE, AND NOTWITHSTANDING THE FACT THAT MY CLIENT IS IN

CUSTODY WE HAVE DISCUSSED SOME FUTURE DATES THAT WE WOULD

BE PREPARED TO PROPOSE TO THE COURT.  I AM HESITANT TO DO

THAT YET.  IF THE COURT WILL ALLOW US TO SET THE TRIAL

SETTING DATE ON NOVEMBER 4TH --

     THE COURT:   WHAT IS THE THIRD CASE ABOUT?

     MR. PAINTER:   THE CASE THAT WAS JUST INDICTED LAST

WEEK, YOUR HONOR?

     THE COURT:   YES.

     MR. PAINTER:   THE THIRD CASE IS A CASE WHERE THE

INDICTMENT ALLEGES --

     THE COURT:   I KNOW WHAT THE INDICTMENT ALLEGES. 

WHAT I AM ASKING IS GIVE ME A CAPSULIZED VERSION OF WHAT IS 

IN THERE.

     MR. PAINTER:   A CAPSULIZED VERSION IS THAT DURING

 THE TIME DEFENDANT MITNICK WAS A FUGITIVE OVER THE COURSE



                                                      (6)


OF APPROXIMATELY TWO AND A HALF YEARS HE ENGAGED IN A

SYSTEMATIC BREAK-IN INTO COMPUTER SYSTEMS THROUGHOUT THE

UNITED STATES AND IN FOREIGN COUNTRIES, AND AMONG OTHER

THINGS, CAUSED DAMAGE TO THOSE COMPUTER SYSTEMS, TOOK PASS

WORD AND OTHER FILES FROM THOSE COMPUTER SYSTEMS AND STOLE

VALUABLE PROPRIETARY SOFTWARE FROM NUMEROUS DIFFERENT

COMPANIES ALLEGED IN THE INDICTMENT THAT WAS WORTH WELL

OVER MILLIONS OF DOLLARS FROM MANY DIFFERENT COMPANIES -

SEVERAL COMPANIES THAT ARE ALLEGED THERE.  THIS COURSE OF

CONDUCT AGAIN TOOK PLACE OVER A 2, 2 AND A HALF YEAR

PERIOD.  MR. DEPAYNE IS -- 

     THE COURT:   WHERE DO YOU ALLEGE THE DEFENDANT WAS 

WHEN THIS TOOK PLACE?

     MR. PAINTER:   IN VARIOUS LOCATIONS; IN COLORADO, IN

SEATTLE AND IN NORTH CAROLINA.  WELL, I THINK COLORADO AND

SEATTLE ARE THE TWO FOR THIS INDICTMENT, YOUR HONOR.

     THE COURT:   WHAT IS THE PARTICIPATION OF THE OTHER 

DEFENDANT?

     MR. PAINTER:   THE PARTICIPATION OF DEFENDANT IS

AIDING AND ABETTING OF WIRE FRAUD COUNTS RELATING TO THE

COMPANY'S PROPRIETARY SOFTWARE AND SCHEME TO DEFRAUD;

PLACING ONE OF THE PRETEXT OR SOCIAL ENGINEERING CALLS TO

ONE OF THE VICTIM COMPANIES TO OBTAIN PROPRIETARY SOFTWARE.

     THE COURT:   WHAT IS A SOCIAL ENGINEERING CALL?

     MR. PAINTER:   A SOCIAL ENGINEERING CALL, YOUR



                                                      (7)


HONOR, IS A PRETEXT CALL.  IT IS WHEN A PERSON CALLS UP A 

COMPANY AND TRIES TO CONVINCE THEM THAT THEY ARE A 

LEGITIMATE EMPLOYEE OR COMPUTER USERS IN ORDER TO GET 

INFORMATION FROM THEM SUCH AS PASS WORDS, COMPUTER ACCOUNTS 

AND SOFTWARE IN THIS INSTANCE.

     THE COURT:   MR. RANDOLPH, I AM GOING TO EXPRESS THIS 

FEAR TO YOU.  I DON'T KNOW WHAT YOU ARE GOING TO DO IN THIS 

CASE, BUT I DON'T WANT YOU TO COME IN ON THE 4TH OF 

NOVEMBER AND SAY THAT YOU HAVE DECIDED TO GO TO TRIAL ON 

THE DATE INSIDE OF THE SPEEDY TRIAL ACT ON THAT SET OF 

FACTS.  THAT WOULD PRESENT A CRAM COURSE FOR YOU, AND 

THEREFORE, I THINK WE SHOULD SET THAT STATUS CONFERENCE 

DATE SOONER.

     MR. RANDOLPH:   MAY I HAVE A MOMENT, PLEASE, YOUR

HONOR, IN LIGHT OF WHAT THE COURT SAID.

     THE COURT:   MR. PAINTER, PEOPLE CHANGE THEIR MINDS.

     MR. PAINTER:   YES, THEY DO, YOUR HONOR.  I AM WELL

AWARE OF THAT.

     THE COURT:   WHILE I AM PREPARED TO TRY IT I JUST 

WANT TO BE SURE THAT MR. RANDOLPH IS PREPARED TO TRY IT.

     MR. RANDOLPH:   I AM COGNIZANT OF WHAT THE COURT

SAID, YOUR HONOR.

     THE COURT:   WHAT I SAID IS I DON'T WANT YOU TO COME 

ON THE 4TH OF NOVEMBER AND SAY YOUR CLIENT IS NOT WILLING 

TO WAIVE OR EXTEND THE SPEEDY TRIAL ACT DATE AND THEN YOU



                                                      (8)


WILL BE FACED WITH THE PROBLEM OF GETTING TO TRIAL WITHIN 

30 DAYS ON THAT SET OF FACTS.

     MR. RANDOLPH:   I APPRECIATE THAT, YOUR HONOR.  IN

LIGHT OF THAT AND MY CLIENT AND I HAD DISCUSSED IT LAST

WEEK, WE HAD DISCUSSED THE SITUATION, WE BELIEVE THAT IT IS 

A COMPLEX MATTER, AND WE WOULD ASK THE COURT IF YOU CAN

GIVE US A REALISTIC TRIAL DATE IN FEBRUARY MY CLIENT WOULD 

BE WILLING TO ENTER INTO A STIPULATION REGARDING THE

COMPLEXITY OF THE CASE FOR PURPOSES OF WAIVER OF THE SPEED 

TRIAL ACT AND THE ONLY OTHER ADDITIONAL POINT I WOULD LIKE 

TO RAISE, WE WOULD LIKE TO KEEP THE NOVEMBER 4TH DATE FOR

THE COURT TO CONSIDER THE ISSUE OF BAIL.  OBVIOUSLY I WILL 

FILE MY PAPERS ON THAT ISSUE IN THE PROPER METHOD, BUT AT

LEAST WE HAVE THE ABILITY TO GIVE US 4 WEEKS FOR ME TO GET 

UP TO SPEED IN TERMS OF ALL THREE MATTERS TO MAKE A PROPER 

PRESENTATION ON THE ISSUE OF BAIL AND THE COURT CAN

CONSIDER THAT ON NOVEMBER 4TH, AND EITHER WAY WE WILL BE 

COMMITTED TO A FEBRUARY TRIAL DATE.

     THE COURT:   THERE IS NO PROBLEM ABOUT YOUR GETTING A 

TRIAL DATE IN THE AREA THAT -- IN THE TIMEFRAME THAT YOU 

AND MR. SHERMAN AGREE TO.

     MR. SHERMAN:   THANK YOU.

     THE COURT:   THERE IS NO PROBLEM ABOUT THAT.

     MR. SHERMAN:   THANK YOU.

     THE COURT:   I HAVE NOW EXPRESSED MY APPREHENSION



                                                      (9)


ABOUT WHAT COULD HAPPEN SO I AM CHARGING YOU AS COUNSEL 

THAT IF YOU SEE THAT COMING TOWARDS YOU YOU SHOULD CALL MR. 

FLORES AND TELL HIM THAT ALL OF YOU SHOULD COME IN AND 

DISCUSS THIS WITH ME.

     MR. RANDOLPH:   I WILL DO SO, YOUR HONOR.

     THE COURT:   ALL RIGHT.  YOU ARE APPOINTED AND YOU SET 

NOVEMBER 4TH AT 1:30 AS THE TIME WHEN WE HAVE THE NEXT 

CONFERENCE.

     MR. PAINTER:   YOUR HONOR, SOME ADDITIONAL MATTERS.

ONE IS MR. RANDOLPH ALLUDED TO -- MR. RANDOLPH INFORMED THE

GOVERNMENT THAT FOR THE TIME BEING THE DEFENDANT, MR.

MITNICK, IS IN CUSTODY AND FOR THE TIME BEING HE IS WILLING

TO STIPULATE TO THE DETENTION ORDER OR REQUEST THAT WAS

FILED BY THE GOVERNMENT UNTIL HE HAS HAD A CHANCE TO

FAMILIARIZE HIMSELF WITH THE CASE AND PERHAPS CHALLENGE

THAT LATER ON.

     THE COURT:   THAT'S FINE.

     MR. RANDOLPH:   THAT'S CORRECT, YOUR HONOR. I TOLD

HIM AS THE COURT MAY ASSUME I AM GOING TO BRING THAT UP ON

THE NOVEMBER 4TH DATE.

     THE COURT:   THE BAIL.

     MR. RANDOLPH:   WITH RESPECT TO THE ISSUE OF BAIL

AND THE CONTINUED VIABILITY OF THE DETENTION ORDER.

     THE COURT:   LET'S JUST ASSUME THAT WE ALL AGREE ON 

THE 4TH YOU WILL RAISE THE ISSUE OF BAIL.



                                                      (10)


     MR. PAINTER:   YOUR HONOR, THE OTHER MATTER IS THAT

AS YOUR HONOR RECALLS THE GOVERNMENT BROUGHT A MOTION WITH

RESPECT TO A CONFLICT OF INTEREST ON THE PART OF MR.

SHERMAN WHEN HE REPRESENTED MR. MITNICK.  MR. SHERMAN

REPRESENTED MR. MITNICK FOR ABOUT A 4 MONTH PERIOD PRIOR TO

THIS INDICTMENT AND IS NOW REPRESENTING HIS CODEFENDANT,

MR. DEPAYNE.  THE GOVERNMENT AGAIN BELIEVES THERE IS A

CONFLICT WITH THIS.  THE GOVERNMENT BELIEVES THAT THIS HAS

TO BE BROUGHT TO THE COURT'S ATTENTION AND WHAT THE

GOVERNMENT WOULD PROPOSE AT THIS POINT AGAIN SINCE MR.

RANDOLPH IS NEWLY APPOINTED TO THE CASE ON THAT NOVEMBER

4TH HEARING -- WE WILL IN THE INTERIM DISCUSS WITH COUNSEL

A BRIEFING SCHEDULE FOR THAT MATTER AND INFORM THE COURT OF

THAT ON NOVEMBER 4TH.

     THE COURT:   YOU WILL INFORM THE COURT OF THAT? 

WHAT IS "THAT"?

     MR. PAINTER:   I AM SORRY, YOUR HONOR.  WE WILL

ADVISE THE COURT AS TO A BRIEFING SCHEDULE THAT THE PARTIES

FEEL IS APPROPRIATE, AND IF THE COURT AGREES THE COURT

COULD ORDER THAT BRIEFING SCHEDULE FOR THE ISSUE OF THE

POSSIBLE DISQUALIFICATION OF MR. SHERMAN WITH RESPECT TO

MR. DEPAYNE.

     THE COURT:   YOU ARE GOING TO MAKE A MOTION NOW TO

DISQUALIFY HIM?

     MR. PAINTER:   WELL, YOUR HONOR, THE PROBLEM IS THAT



                                                      (11)


MR. SHERMAN -- 

     THE COURT:   DON'T DO IT UNLESS YOU HAVE GOT A GOOD 

GROUND FOR IT.

     MR. PAINTER:   WE BELIEVE WE DO, YOUR HONOR.  WE

BELIEVE NO MATTER WHAT HAPPENS IT IS AN ISSUE THAT WE HAVE

TO PUT BEFORE THE COURT.  MR. SHERMAN REPRESENTED MR.

MITNICK FOR 4 MONTHS, 4 AND A HALF MONTHS AND IS NOW

REPRESENTING A CODEFENDANT.  THAT RAISES A HOST OF

PROBLEMS.

     THE COURT:   THE GROUND WAS THAT HE WAS REPRESENTING

THE CODEFENDANT.  NOW HE IS REPRESENTING THE CODEFENDANT.

     MR. PAINTER:   THAT STILL CAUSES A PROBLEM.  IN

BRIEF, SOME OF THE PROBLEMS ARE THAT MR. SHERMAN CANNOT

ADEQUATELY ADVISE HIS CLIENT WITHOUT POSSIBLY BREACHING

CLIENT CONFIDENCES THAT HE LEARNED WHILE HE REPRESENTED MR.

MITNICK.  HE CAN'T ADVISE HIS CLIENT BECAUSE HE REPRESENTED

MR. MITNICK.  IF THE CASE GOES TO TRIAL AND MR. MITNICK

TAKES THE STAND, HE IS PLACED IN A REAL PROBLEM IN TERMS OF

CROSS EXAMINING MR. MITNICK OR ADEQUATELY BRINGING OUT

FACTS THAT MIGHT FAVOR MR. DEPAYNE BUT HURT MR. MITNICK.

THOSE ARE LOYALTY PROBLEMS.

     THE COURT:   THE GOVERNMENT IS CONCERNED THAT MR.

SHERMAN FOUND OUT SOME THINGS WHEN HE WAS REPRESENTING MR.

MITNICK AND HE WOULD NOW BE IN A VERY DIFFICULT POSITION TO

CROSS-EXAMINE MR. MITNICK.



                                                      (12)


     MR. PAINTER:   THAT'S CORRECT, YOUR HONOR.  I THINK 

THAT IS ONE OF SEVERAL CONCERNS THAT ARE RAISED.  NOW THERE 

ARE A COUPLE OF ISSUES.

     THE COURT:   YOU SAID THAT WAS IT.

     MR. PAINTER:   NO.  THAT IS ONE ISSUE.  ANOTHER ONE IS

STRATEGY SORT OF DECISIONS, WHETHER HE PUTS MR. DEPAYNE ON

THE STAND OR DOES NOT PUT HIM ON THE STAND NOW KNOWING WHAT

HE MIGHT KNOW FROM MR. MITNICK, THAT IS SOMETHING WE CAN'T

INQUIRY INTO BECAUSE OF THE ATTORNEY/CLIENT PRIVILEGE WHEN

HE WAS REPRESENTING MR. MITNICK SO WE DON'T KNOW.  THERE IS

THE ISSUE IN TERMS OF CLIENT LOYALTY, WHETHER HE CAN

ADEQUATELY EITHER CROSS-EXAMINE MR. MITNICK, ADVISE HIS

CLIENT WITH RESPECT TO ANY POSSIBLE TESTIMONY THAT INVOLVES

MR. MITNICK OR REALLY ADEQUATELY REPRESENT HIS CLIENT IN

TERMS OF PLEA NEGOTIATIONS.

     THE COURT:   WELL, I AM GOING TO TELL YOU THIS.  I

HAVE ALREADY BEEN THROUGH THIS MOTION, AND I WOULD NOT

CONSIDER IT TO BE VERY WISE ON THE PART OF THE GOVERNMENT

TO PUT ME THROUGH IT AGAIN UNLESS YOU HAVE GOT A VERY GOOD

GROUND FOR IT.

     MR. PAINTER:   WELL, YOUR HONOR, THOSE ARE THE

ISSUES WE RAISED.

     THE COURT:   REMEMBER HOW BIG THAT MOTION WAS.

     MR. PAINTER:   YES, I DO.

     THE COURT:   THAT IS A LOT OF PAGES, AND THEY HAVE TO



                                                      (13)


RESPOND TO THAT.

     MR. PAINTER:   I UNDERSTAND, YOUR HONOR, AND IT

OBVIOUSLY IS MORE STREAM-LINED NOW THAT MR. SHERMAN

REPRESENTS SIMPLY ONE CLIENT.

     THE COURT:   I WOULDN'T SAY IT IS STREAM-LINED.  IT IS 

THE SAME SITUATION.

     MR. PAINTER:   IT IS, YOUR HONOR.

     THE COURT:   YOU SAID HE REPRESENTED MR. DEPAYNE.

     MR. PAINTER:   THAT'S CORRECT.

     THE COURT:   NOW HE REPRESENTS MR. DEPAYNE.  I AM 

MAKING A POINT TO YOU.  I HOPE YOU RECOGNIZE THAT I DON'T 

WANT TO HAVE TO READ THE SAME MOTION AGAIN.

     MR. PAINTER:   I UNDERSTAND THAT, TOO, YOUR HONOR,

BUT AGAIN THE CASES ARE FAIRLY CLEAR.  THIS IS SOMETHING WE

NEED TO BRING TO THE COURT'S ATTENTION, AND EVEN IF THE

COURT DISAGREES WITH US AND DECIDES THAT A WAIVER, FOR

INSTANCE, IS APPROPRIATE AND THE GOVERNMENT DOES NOT

BELIEVE THAT IS APPROPRIATE, THAT IS SOMETHING MR. DEPAYNE

AND MR. MITNICK HAVE TO DECIDE ABOUT AND AT THE VERY LEAST

WE WOULD HAVE TO ENTER INTO VERY EXTENSIVE WAIVERS IN THIS

CASE SO THAT ISSUE HAS TO BE BROUGHT TO THE COURT'S

ATTENTION, YOUR HONOR.  I DON'T THINK WE HAVE A CHOICE IN

THAT.

     MR. RANDOLPH:   YOUR HONOR, WHEN MR. PAINTER WALKED

OVER TO ME THIS MORNING I TOLD HIM RESPECTFULLY IF YOU HAVE



                                                      (14)


GOT A MOTION, FILE IT.  IF YOU WANT TO BRING IT UP DO SO.  I 

MEAN NO DISREGARD TO THE COURT BY MY RESPONSE TO YOU.  I 

THINK THESE ARE FRIVOLOUS MOTIONS, AND I HAVE NEVER SEEN 

THE GOVERNMENT MAKE A MOTION OF THIS TYPE WHERE THERE IS AN 

ATTORNEY WHO COOPERATES WITH THEM ON A SOMETIMES BASIS.

     THE COURT:   WELL, I DON'T WANT TO READ THE SAME 

THINGS AGAIN.  I CAN FIGURE OUT ALL OF THIS AS WELL AS YOU 

CAN.

     MR. PAINTER:   I UNDERSTAND THAT.

     THE COURT:   I DON'T WANT THEM SPENDING A LOT OF TIME 

AND MONEY FOR THINGS WHICH ARE MERELY STRATEGIC.

     I AM GRAPPLING FOR A WORD.

     MR. PAINTER:   IT IS NOT STRATEGIC, YOUR HONOR.

     THE COURT:   DON'T DO IT IF IT IS PURELY STRATEGIC.

     MR. PAINTER:   YOUR HONOR, WE DON'T, AND I DON'T

BELIEVE I EVER HAVE, AND I WOULDN'T ASK YOUR HONOR IN THIS

CASE.

     THE PROBLEM IS THE NINTH CIRCUIT HAS SAID ON MANY 

OCCASIONS THAT A CONFLICT CREATES PROBLEMS -- THAT IT CAN 

CAUSE PROBLEMS AFTER A VERDICT OR RESOLUTION IS REACHED AND 

THE GOVERNMENT WANTS TO MAKE SURE THAT THAT DOESN'T COME 

BACK.  WE WANT TO DO THIS CASE ONCE.

     THE COURT:   BUT YOU, MR. PAINTER, DO NOT KNOW WHAT 

THE CONFLICT IS, AND YOU WILL FILE THE MOTION, AND YOU 

STILL WILL NOT.



                                                      (15)


     MR. PAINTER:   WHAT THE CASES HAVE SAID IS IT IS THE

POTENTIAL FOR CONFLICT.  THE FACT THAT HE HAS REPRESENTED

ANOTHER PARTY WITH RESPECT TO THE SAME MATTER CREATES THE

CONFLICT.

     WE ADVISED MR. SHERMAN IN JUNE WHEN HE SIGNED ON 

WITH THIS DEFENDANT THAT THAT WAS A PROBLEM, AND WE ADVISED 

THE COURT AT THAT TIME, AND HE CONTINUED TO REPRESENT MR. 

MITNICK.

     THE COURT:   WE WILL SEE WHAT EVERYBODY SAYS ABOUT 

THIS.  BEAR IN MIND WHAT I SAID.

     MR. PAINTER:   I DO, YOUR HONOR.

     THE COURT:   TAKE IT SERIOUSLY.

     MR. PAINTER:   I DO, YOUR HONOR, AND I BELIEVE WHAT

YOU HAD STATED IN AN EARLIER TIME.  YOU BELIEVE AT THE VERY

LEAST THAT WAIVERS WOULD BE NECESSARY.  IS THAT STILL THE

COURT'S SORT OF TENTATIVE POSITION?

     THE COURT:   YOU DIDN'T COME IN TO QUESTION THE 

COURT; DID YOU?

     MR. PAINTER:   NO, I DID NOT.

     MR. SHERMAN:   MAY I ADDRESS A DIFFERENT SUBJECT?

I WOULD LIKE YOUR PERMISSION TO FILE A WAIVER.  YOU

INDICATED YOU MIGHT CONSIDER SUCH A WAIVER OF MR. DEPAYNE'S

PRESENCE.  MAY I APPROACH THE CLERK?

     THE COURT:   THAT'S FINE.

     THE DEFENDANT:   THANK YOU, YOUR HONOR.



                                                      (16)


     MR. SHERMAN:   AS A SECONDARY MATTER I WOULD LIKE TO

KNOW YOUR POSITION.  I UNDERSTAND WE DO HAVE SOME DISCOVERY

COMING FROM THE GOVERNMENT BUT IN THE EVENT THERE IS MORE

DISCOVERY NECESSARY, AND I AM CERTAIN IN THIS CASE THERE

WILL BE, I WOULD LIKE YOUR  PERMISSION TO FILE SUCH

DISCOVERY-TYPE MOTIONS AND SET THEM FOR A DATE CONVENIENT

FOR THE COURT AND COUNSEL.

     THE COURT:   WELL, MR. RANDOLPH IS GOING TO WANT TO 

DO THE SAME THING SO YOU SHOULD COORDINATE THAT.  I DON'T 

MIND YOUR FILING THE DISCOVERY MOTIONS BUT YOU NO DOUBT 

WILL DO THAT BEFORE YOU GET ALL THE DISCOVERY FROM THE 

GOVERNMENT.  YOU WORK IT OUT HOWEVER YOU WANT TO.  YOU CAN 

FILE THE MOTIONS WHENEVER YOU WISH, BOTH OF YOU.

     MR. RANDOLPH:   THANK YOU, YOUR HONOR. I HAVE TWO

MINOR MATTERS, YOUR HONOR.  I HAVE BEEN COMMUNICATING WITH

GOVERNMENT COUNSEL AT THE END OF LAST WEEK, AND I WILL BE

FILING A REQUEST FOR A TAPE LISTENING DEVICE SO THAT -- THE

GOVERNMENT HAS ALREADY INDICATED THEY HAVE 15 CASSETTE

TAPES THAT WE HAVE AS PART OF THE DISCOVERY.  I SUSPECT

THERE MAY BE MORE.

     THE COURT:   THOSE ARE TELEPHONE CALLS?

     MR. RANDOLPH:   YES, YOUR HONOR.

     THE COURT:   ARE THEY PERSONAL, ONE ON ONE?

     MR. RANDOLPH:   I DON'T KNOW THE NATURE OF THE

CASSETTE TAPE RECORDINGS.



                                                      (17)


     MR. PAINTER:   THEY ARE TELEPHONE CALLS, YOUR HONOR,

AND THEY ARE PERSONAL ONE ON ONE OR ONE TO SEVERAL

DIFFERENT PARTIES.

     THE COURT:   BUT THEY ARE TELEPHONE CALLS.

     MR. PAINTER:   THEY ARE ALL TELEPHONE CALLS.  THIS

INITIAL GROUP OF TAPES AT LEAST ARE ALL TELEPHONE CALLS.  I

THINK THEY ARE ALL TELEPHONE CALLS.

     THE COURT:   WHAT DO YOU MEAN A COUPLE OF OTHERS?

     MR. PAINTER:   THERE ARE A COUPLE IN THE PROCESS OF

BEING TRANSCRIBED.  I AM TURNING OVER THE 15 CONVERSATIONS

TODAY, AND THERE ARE A COUPLE OF ADDITIONAL ONES THAT WE

WILL BE TURNING OVER WITHIN THE NEXT WEEK OR WEEK AND A

HALF.  I THINK MR. RANDOLPH HAD REQUESTED HIS CLIENT HAVE

THE ABILITY TO LISTEN TO THOSE.

     THE COURT:   THAT IS WHAT HE IS TALKING ABOUT, BUT

IT IS NOT AS SIMPLE AS IT SOUNDS BECAUSE YOU HAVE TO DO

THIS.  I HAVE TO HAVE THE INSTITUTION MAKE THIS POSSIBLE,

AND IF HE WANTS TO HEAR THEM OVER AND OVER AGAIN THAT

PRESENTS A PROBLEM.

     MR. PAINTER:   YOUR HONOR, THAT IS WHAT WE TOLD MR.

RANDOLPH LAST WEEK ABOUT M.D.C., AND I UNDERSTAND HE WILL

CHECK WITH THE INSTITUTION ABOUT THAT.  WE WOULD NOT AGREE

WITH THIS BECAUSE M.D.C. POSES PROBLEMS WITH ARRANGING THE

LOGISTICS. IF M.D.C. WOULD ALLOW IT AND HAD NO OBJECTION -- 

     MR. RANDOLPH:   IN MY EXPERIENCE THIS IS THE FOURTH



                                                      (18)


CASE WHEN THERE IS MORE THAN ONE OR TWO TAPES SUCH THAT 

THEY CAN BE EASILY LISTENED TO IN A SESSION WITH COUNSEL. 

UPON RECEIPT OF AN ORDER FROM THE COURT THE M.D.C. IS VERY 

ACCOMMODATING.  THEY ALLOW YOU TO BRING IN A TAPE LISTENING 

DEVICE, ONE THE CLIENTS CAN LISTEN TO.  THEY CAN MAINTAIN 

IT ON THEIR PERSON IN THEIR OWN AREA.  THEN THEY CAN LISTEN 

TO THE TAPES AS MANY TIMES AS THEY WISH.

     THE COURT:   BEFORE YOU SEND ME AN ORDER I SUGGEST 

YOU TALK TO THEM ABOUT HOW THIS IS TO BE WORKED OUT.  IF 

THEY SAY THEY CAN DO IT THEN I WILL ORDER IT.

     MR. RANDOLPH:   ABSOLUTELY, YOUR HONOR.  THAT IS THE

THING I AM WORKING OUT THIS WEEK.

     THE COURT:   OKAY.  THANK YOU.  NOVEMBER THE 4TH AT 

1:30.

     MR. RANDOLPH:   THANK YOU.

     MR. SHERMAN:   THANK YOU, YOUR HONOR.

     MR. PAINTER:   THANK YOU.