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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
HONORABLE MARIANA R. PFAELZER, JUDGE PRESIDING
UNITED STATES OF AMERICA, )
PLAINTIFF. )
)
VS. ) CR. 96-881 MRP
)
KEVIN DAVID MITNICK,
LEWIS DEPAYNE. )
DEFENDANTS.
REPORTER'S TRANSCRIPT OF PROCEEDINGS
LOS ANGELES, CALIFORNIA
WEDNESDAY, DECEMBER 2, 1998
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BETH E. ZACCARO
OFFICIAL COURT REPORTER
C.S.R. 2489, R.P.R.
414 UNITED STATES COURTHOUSE
312 NORTH SPRING STREET
LOS ANGELES, CALIFORNIA 90012
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APPEARANCES:
FOR THE PLAINTIFF:
DAVID J. SCHINDLER, ASSISTANT UNITED STATES ATTORNEY
FOR DEFENDANT MITNICK: DONALD C. RANDOLPH, ESQ.
FOR DEFENDANT DEPAYNE: RICHARD SHERMAN, ESQ.
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LOS ANGELES, CALIFORNIA, ON WEDNESDAY, DECEMBER 2, 1998
BEGINNING AT APPROXIMATELY 3:00 P.M.
THE CLERK: ITEM NUMBER 2, CRIMINAL 96-881. UNITED
STATES OF AMERICA VERSUS KEVIN MITNICK AND LEWIS DEPAYNE.
COUNSEL, PLEASE MAKE YOUR APPEARANCE.
MR. SCHINDLER: GOOD AFTERNOON, YOUR HONOR, DAVID
SCHINDLER. I DON'T HAVE A VOICE TODAY.
MR. RANDOLPH: DONALD RANDOLPH ON BEHALF OF KEVIN
MITNICK WHO IS PRESENT WITH COUNSEL.
MR. SHERMAN: GOOD AFTERNOON, YOUR HONOR, RICHARD
SHERMAN FOR LEWIS DEPAYNE WHO IS ABSENT.
THE COURT: DON'T MOVE ANY OF THE THINGS ON THE
TABLE.
WHY WOULD YOU GIVE ME 22 PAGES OR SOMETHING OF
MATERIAL FOR ME TO READ IN ONE MINUTE?
MR. RANDOLPH: YOUR HONOR, I FILED --
THE COURT: I TOOK IT HOME LAST NIGHT TO READ IT
BECAUSE I AM IN THE MIDDLE OF A TRIAL.
MR. RANDOLPH: I UNDERSTAND. YOUR HONOR, LAST
TUESDAY I FILED MY MOTIONS.
YESTERDAY AT ABOUT 5:00 O'CLOCK I RECEIVED THE
GOVERNMENT'S FAXED OPPOSITION TO THE MOTIONS SO I SPENT
LAST NIGHT AND ALL MORNING PUTTING TOGETHER MY REPLY AND
THAT IS WHAT I GAVE YOU TODAY. WE DID IT AS FAST AS WE
CAN. MY SECRETARY WAS TYPING AS FAST AS SHE COULD BUT WE
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COULDN'T GET IT HERE BEFORE LUNCH.
THE COURT: I CAN'T READ IT.
MR. RANDOLPH: I UNDERSTAND, YOUR HONOR. I THOUGHT
IT WAS IMPORTANT FOR US TO REPLY RATHER THAN TAKE THE TIME
TO ORALLY ARGUE. I TRIED TO PUT IN AS CONCISE A FASHION AS
I COULD.
THE COURT: YOU HAVE TO ARGUE BECAUSE I HAVE NO
TIME TO READ IT.
MR. RANDOLPH: RATHER THAN TAKE UP THE COURT'S TIME
IN ORAL ARGUMENT --
THE COURT: MAY I ASK IF IT IS THE POSITION OF THE
GOVERNMENT THAT YOU DON'T WANT HIM TO HAVE ANY MORE TIME
BECAUSE I AM VERY, VERY ANXIOUS TO TRY THIS CASE. WHEN I
SAY I AM ANXIOUS, I MEAN I REALLY AM VERY ANXIOUS TO TRY
IT.
MR. SCHINDLER: LET ME APOLOGIZE TO THE COURT. I
AM APOLOGIZING THAT WE ARE ALL HERE AT THIS POINT WITH THIS
MOTION BEFORE THE COURT, AND I KNOW THE COURT IS
FRUSTRATED, AND IT IS UNDERSTANDABLE. WHERE WE ARE IS AS
THE COURT KNOWS FROM THE FILINGS AT LEAST THERE WAS A
PROTRACTED AMOUNT OF TIME SPENT ON NEGOTIATIONS.
THE COURT: I HAVE NOTHING TO DO WITH NEGOTIATIONS.
MR. SCHINDLER: ABSOLUTELY UNDERSTOOD, YOUR HONOR.
THAT IS WHY I APOLOGIZE TO THE COURT. FROM THE
GOVERNMENT'S PERSPECTIVE, WHETHER WE GO TO TRIAL JANUARY
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19TH OR FEBRUARY 19TH OR MARCH 19TH DOESN'T MATTER. WHAT WE
WOULD OBJECT TO IS A 6 MONTH CONTINUANCE. WE WOULD OBJECT
TO A 5 MONTH CONTINUANCE.
THE COURT: PLEASE DON'T BE SILLY. I WOULDN'T EVEN
CONSIDER IT.
MR. SCHINDLER: IF WE ARE TALKING ABOUT 2 MONTHS IT
DOESN'T MAKE ANY DIFFERENCE TO US. IF THE QUESTION THE
COURT IS ASKING IS WOULD THE GOVERNMENT OBJECT TO GOING
FORWARD MARCH 19TH INSTEAD OF FEBRUARY 19TH, NO. IT IS THE
PRACTICAL EQUIVALENT. IF THAT WILL RESOLVE THINGS, THAT IS
FINE FROM THE GOVERNMENT'S PERSPECTIVE. I THINK THAT IS THE
SHORTEST ANSWER I CAN GIVE YOU BECAUSE I THINK THAT IS
ASKING ME --
MR. RANDOLPH: YOUR HONOR, WE ASKED FOR APRIL 15TH,
MID-APRIL I GUESS, AND THE REASON I ASKED FOR THAT IS
TWO-FOLD.
THE COURT: IF I GAVE YOU MID-APRIL, THE BEGINNING
OF APRIL, YOU WOULD ASK FOR MID-JULY.
NOW LET'S NOT KEEP KIDDING EACH OTHER.
MR. RANDOLPH: I UNDERSTAND. IF I CAN TAKE A MINUTE,
YOUR HONOR, THERE ARE TWO THINGS I THINK THAT CAN BE
ACCOMPLISHED IF YOU GRANT ME AN APRIL CONTINUANCE. THE FIRST
IS AND I TOLD COUNSEL BEFOREHAND DESPITE THE FACT THAT
THINGS BROKE DOWN I THINK --
THE COURT: I AM NOT PUTTING ANY PRESSURE ON MR.
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MITNICK TO PLEAD TO ANYTHING.
MR. RANDOLPH: I UNDERSTAND.
THE COURT: YOU MISUNDERSTAND MY FEELINGS ABOUT THIS
ALL TOGETHER. WHAT I WANT TO DO IS TRY THE CASE.
MR. RANDOLPH: I UNDERSTAND. IF THE COURT SETS IT
IN MID-APRIL AND I WOULD WANT -- WE DON'T HAVE TO TAKE THE
REST OF IT UP AT THIS MINUTE -- BUT I WOULD ASK THIS
COURT'S RESOLUTION OF THE OUTSTANDING DISCOVERY MATTERS
THAT HAVE BEEN BROUGHT UP.
THE COURT: I THOUGHT I RESOLVED THE OUTSTANDING
DISCOVERY MATTERS ON AT LEAST 2 OR 3 OTHER OCCASIONS.
MR. RANDOLPH: INSTEAD, YOUR HONOR, AS SET FORTH IN
MY MOTION FOR DISCOVERY IN THE REPLY WHICH YOU HAVE NOT HAD
A CHANCE TO REVIEW, THERE ARE A NUMBER OF DISCOVERY MATTERS
THAT ARE STILL OUTSTANDING.
THE GOVERNMENT HAS NOT KEPT PACE WITH YOUR ORDER,
AND THE GOVERNMENT HAS THEIR EXPLANATIONS FOR THAT BUT WE
THINK IF THE MATTER IS TO GO TO TRIAL I HAVE ASKED FOR MID-
APRIL, AND I HAVE ASKED THE COURT TO INTERVENE IN MAKING
CERTAIN THE GOVERNMENT IS IN COMPLIANCE WITH THE ORDER YOU
ALREADY SET.
I AM NOT ASKING YOU TO MODIFY YOUR ORDER IN ANY
GREAT RESPECT BUT JUST TO ENFORCE IT SO THAT IS WHAT
ESSENTIALLY -- IF YOU PEEL EVERYTHING BACK FROM THE MOTIONS
THAT WE HAVE PRESENTED TO YOU, THAT IS WHAT WE ARE ASKING
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THE COURT TO DO.
THE COURT: ALL RIGHT. THEN YOU COME BACK TOMORROW
AT 3:00 O'CLOCK. NOW MAY I ASK YOU IS THERE A PROBLEM --
IS THERE SOME PROBLEM THAT MR. MITNICK HAS WHICH IS BEING
ADVANCED BY THIS FRIEND OF HIS?
MR. RANDOLPH: YOUR HONOR, THE CLERK PRESENTED ME A
DOCUMENT SIGNED APPARENTLY BY KERRI *** ENTITLED
REQUEST OF EXAMINATION OF REPORT, AND THERE IS A FINANCIAL
DISCLOSURE REPORT.
THE COURT: JUSTICE O'CONNOR'S REPORT.
MR. RANDOLPH: I DON'T KNOW KERRI ***. THIS
DOCUMENT IS DATED 10-1-98.
THE COURT: YOU SEE THE STATEMENT THAT IS IN THERE.
MR. RANDOLPH: I DID. IT SAYS THIS PERSON, KERRI
*** INDICATES SHE IS REQUESTING THIS REPORT FOR HER OWN
RESEARCH. I DON'T KNOW WHO THAT PERSON IS.
THE COURT: I DON'T, EITHER.
MR. RANDOLPH: I DON'T KNOW HOW ELSE TO ANSWER THE
QUESTION.
THE COURT: WELL, THE GOVERNMENT IS ON NOTICE ABOUT
THIS SO IF ANYTHING UNTOWARD HAPPENS I WANT THE GOVERNMENT
TO BE AWARE OF THIS.
MR. SCHINDLER: YES, YOUR HONOR, WE ARE.
MR. RANDOLPH: I AM NOT AWARE OF ANYTHING UNTOWARD
MYSELF, YOUR HONOR, AND I DON'T KNOW HOW TO DECIPHER THIS
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DOCUMENT OTHER THAN IT APPEARS TO BE SOMEONE REQUESTING A
REPORT.
THE COURT: GIVE IT BACK TO MR. FLORES.
MR. SCHINDLER: YOUR HONOR, MAY I HAVE A COPY,
THOUGH?
THE COURT: YES.
MR. RANDOLPH: I WOULD OBVIOUSLY REQUEST A COPY,
TOO, THEN.
THE COURT: I HOPE I AM MAKING MYSELF CLEAR. AM I
MAKING MYSELF CLEAR?
MR. SCHINDLER: ABSOLUTELY, YOUR HONOR.
MR. RANDOLPH: I AM NOT EXACTLY SURE WHAT THE COURT
MEANS.
THE COURT: ANYONE CAN MAKE THAT KIND OF REQUEST,
AND I WOULD LIKE TO BE OF RECORD IN SAYING THAT THERE WAS
NO OBJECTION FILED BY THE COURT TO THE DISCLOSURE, BUT I
JUST DON'T WANT TO HAVE THE GOVERNMENT NOT BE ON NOTICE
THAT THAT REQUEST WAS MADE.
MR. RANDOLPH: DOES THE COURT HAVE SOME FEELING THAT
THE DEFENSE IS BEHIND THIS REQUEST?
THE COURT: I HAVE NOTHING TO SAY OTHER THAN WHAT I
SAID.
MR. RANDOLPH: ALL RIGHT.
BECAUSE I CAN REPRESENT TO THE COURT --
THE COURT: NOTHING TO SAY OTHER THAN WHAT I SAID.
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I HAVE TOLD YOU NOW -- MADE A COMPLETE DISCLOSURE TO YOU
THAT I HAVE NO OBJECTION WHATSOEVER TO THE DISCLOSURE TO
WHOEVER THIS IS IN NORTH CAROLINA.
MR. RANDOLPH: I WASN'T AWARE OF THAT, EITHER, YOUR
HONOR, SO I AM HARD PRESSED TO RESPOND OTHER THAN I READ
WHAT THE CLERK PRESENTED TO ME, AND I CAN REPRESENT THAT
THIS PERSON HAS NO CONNECTION WITH THE DEFENSE. IT APPEARS
THAT PERSON IS REPRESENTING THEMSELVES TO BE AN INDEPENDENT
INVESTIGATOR.
THE COURT: IN NORTH CAROLINA.
MR. RANDOLPH: I DIDN'T KNOW THE SIGNIFICANCE OF
THAT, EITHER, YOUR HONOR.
THE COURT: WELL, IF YOU HEAR ANYTHING ABOUT IT YOU
CAN DO WHATEVER IS NECESSARY, SO COME BACK TOMORROW AT
3:00, AND I WILL SEE WHAT I CAN DO ABOUT THE DATE.
MR. RANDOLPH: ALL RIGHT, THANK YOU VERY MUCH.
MR. SHERMAN: YOUR HONOR, RICHARD SHERMAN FOR THE
RECORD.
WHEN WE COME BACK --
THE COURT: I DON'T KNOW WHAT ALL THIS IS ABOUT WITH
RESPECT TO AUSTIN.
MR. SHERMAN: I AM NOT GOING TO TALK ABOUT THAT.
ALL I WANT TO ASK, YOUR HONOR, IF YOU WOULD HAVE A
LITTLE WHILE FOR US TO ADDRESS THE COURT, MAYBE 15 MINUTES
OR SO --
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THE COURT: I WILL TRY TO DO THAT, BUT I CAN'T VERY
WELL ADDRESS SOMETHING I HAVE NOT READ, AND IT IS 22 PAGES
LONG.
MR. SHERMAN: OF COURSE YOU WILL NOTE I HAVE NOT
SUBMITTED A PAPER IN THIS MATTER NOR DO I INTEND TO. I WANT
TO THANK YOU IN ADVANCE FOR GIVING US SOME TIME IF YOU HAVE
IT TOMORROW.
THE COURT: ALL RIGHT. SEE YOU TOMORROW.
MR. SCHINDLER: WHAT TIME TOMORROW?
THE COURT: I SAY TO THE GOVERNMENT LET'S GO TO
TRIAL. LET'S GO TO TRIAL. I AM NOT KEEPING MR. MITNICK
FROM GOING TO TRIAL, AND THAT IS WHAT I WANT TO DO.
MR. SCHINDLER: I AGREE, YOUR HONOR.