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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 3, 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 DECEMBER 3, 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: DAVID SCHINDLER ON BEHALF OF THE
UNITED STATES.
MR. RANDOLPH: GOOD AFTERNOON, YOUR HONOR, DONALD
RANDOLPH ON BEHALF OF KEVIN MITNICK WHO IS PRESENT IN
COURT.
MR. SHERMAN: GOOD AFTERNOON, YOUR HONOR, RICHARD
SHERMAN FOR LEWIS DEPAYNE WHO IS ABSENT WITH THE COURT'S
PERMISSION.
THE COURT: HAVE YOU AGREED ON A TRIAL DATE?
MR. RANDOLPH: WELL, I HAD PROPOSED A DTAE.
THE COURT: IN APRIL.
MR. RANDOLPH: IN APRIL, YOUR HONOR, APRIL -- I
THINK TUESDAY IS APRIL THE 20TH, YOUR HONOR. I THINK MR.
SHERMAN WANTS TO ADDRESS THE COURT WITH RESPECT TO THAT
DATE, AND I GOT THE IMPRESSION THAT I WANT TO CONFIRM WITH
GOVERNMENT COUNSEL THAT IT'S AVAILABLE TO COUNSEL.
MR. SCHINDLER: AS WE INDICATED YESTERDAY,
OBVIOUSLY WE WOULD LIKE TO GO SOONER THAN LATER IN APRIL.
THAT DATE IS FINE. AS I SAID, OUR PREFERENCE WOULD HAVE
BEEN TO GO IN MARCH. I UNDERSTAND THERE ARE SCHEDULING
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CONFLICTS. ULTIMATELY THERE IS NOT GOING TO BE MUCH OF A
DIFFERENCE IN THAT REGARD SO I DEFER TO THE COURT IN THAT
RESPECT.
THE COURT: ALL RIGHT. THEN WE ARE GOING TO HAVE TO
TAKE UP THE MATTER OF DISCOVERY. I DON'T LIKE THE WAY
YOU WRITE AT ALL, MR. RANDOLPH. WHAT DO YOU MEAN ABOUT THE
LACK OF UNDERSTANDING HERE? WHAT DOES THAT MEAN?
MR. RANDOLPH: MAYBE THE COURT COULD TELL ME WHAT IT
IS REFERRING TO.
THE COURT: THE COURT'S PRESUMED LACK OF EXPERTISE
IN SOPHISTICATED COMPUTER TECHNOLOGY.
MR. RANDOLPH: WHAT I MEAN BY THAT IS THE FOLLOWING,
YOUR HONOR. IN ITS OPPOSITION, THE GOVERNMENT ARGUED THAT A
DELETED FILE THAT IS FROM A SET OF COMPUTER FILES IS
IDENTICAL TO A PIECE OF PAPER THAT HAS ITEMS ERASED FROM
IT, AND THE GOVERNMENT COULD NOT MAKE SUCH AN ARGUMENT --
THE COURT: THAT IS WHAT YOU ARE REFERRING TO?
MR. RANDOLPH: I AM REFERRING TO THE GOVERNMENT'S
ARGUMENT. THEY WOULD NOT MAKE THAT UNLESS THEY ASSUME THE
COURT WOULD NOT UNDERSTAND THAT A DELETED FILE IN COMPUTER
LANGUAGE IS COMPLETELY DIFFERENT FROM SOMETHING THAT IS
ERASED OFF A PIECE OF PAPER.
OBVIOUSLY, A DELETED COMPUTER FILE IS NOT ERASED
LIKE ITEMS OFF OF A PIECE OF PAPER BUT SIMPLY REMAINS IN
THE COMPUTER UNTIL IT IS OVERRIDEN BY SOMETHING ELSE.
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THE COURT: I GATHER THAT IS WHAT WE ARE ARGUING
ABOUT, RIGHT?
MR. RANDOLPH: WITH RESPECT TO THE DISCOVERY ITEMS
THAT WERE BEFORE THE COURT, SINCE YESTERDAY MR. SCHINDLER
AND I HAVE SAT DOWN AND HAD A LONG CONVERSATION AND AT THIS
POINT IN TIME I THINK WE CAN WORK IT OUT.
THE COURT: I AM ASSUMING SO.
MR. RANDOLPH: IF THERE IS A PROBLEM WE WILL COME
BACK, BUT AT THIS POINT IN TIME WE SEEM TO HAVE RESOLVED
MOST, IF NOT ALL, OF THE ISSUES.
THE COURT: MR. SHERMAN, I WANT TO HEAR IT IN
CAPSULIZED FORM.
MR. SHERMAN: I WILL BE QUITE BRIEF WITH THE COURT.
YOUR HONOR, I WOULD SAY NOTHING EXCEPT FOR THE TRIAL
DATE, BUT I KNOW THE COURT HAS A GOOD GRASP OF FACTS WITH
MY PREVIOUS EXPERIENCE WITH THIS COURT, AND I HAVE BEEN
WAITING TO SEE WHAT THE EVIDENCE WAS AGAINST DEPAYNE.
YOU KNOW I HAVE BEEN SAYING THERE IS NO EVIDENCE
THAT WOULD -- FACT SPECIFIC EVIDENCE WHICH WOULD TIE HIM
INTO THE INDICTMENT IN THIS CASE, AND HE SHOULD BE SEVERED
BECAUSE THERE IS ONLY REALLY EVIDENCE SUPPORTING THE GRAND
JURY INDICTMENT ON ONE COUNT.
THE COURT: I AM GOING TO SEVER HIM.
I THINK I AM.
MR. SHERMAN: WELL, DOES THE COURT WANT TO DO IT
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NOW OR DO YOU WANT ME TO FILE A MOTION?
THE COURT: YES.
MR. SHERMAN: ALL RIGHT. FINE. THEN IN THAT CASE,
YOUR HONOR, I WOULD JUST ADVISE YOU --
THE COURT: I WASN'T GOING TO DO THAT BUT THE MORE
THAT GOES ON IN THIS CASE THE MORE I THINK THAT IS
APPROPRIATE.
MR. SHERMAN: ALL RIGHT, YOUR HONOR. I HOPE I DON'T
DO ANYTHING TO DISSUADE YOU WITH MY MEMORANDUM.
THE COURT: I WAS REALLY OPPOSED TO DOING THAT KIND
OF THING, BUT I HAVE BEEN THINKING IT OVER.
MR. SHERMAN: ALL RIGHT. YOUR HONOR, THEN I JUST
WOULD LIKE TO SAY ONE THING IF I MAY. I HAVEN'T FILED A
MOTION BECAUSE I HAVEN'T HAD THE DISCOVERY UPON WHICH TO,
YOU KNOW, COME IN WITH THE FACTS, AND I AM NOT CRITICIZING
ANYBODY. IT JUST HASN'T BEEN THERE YET. I JUST HAVE THE
JENCKS ACT STATEMENT, AND THERE IS NOTHING IN THERE THAT I
CAN SEE, AND PERHAPS WHEN I GET THE EXHIBIT LIST I WILL --
AND MR. SCHINDLER HAS VERY KINDLY OFFERED TO WALK ME
THROUGH THE EVIDENCE AGAINST DEPAYNE SO I WILL BE IN A MUCH
BETTER POSITION TO DO THAT.
THE COURT: WHY DON'T YOU DO THAT.
MR. SHERMAN: HE IS GOING TO -- HE AND I ARE GOING
TO DO THAT, YOUR HONOR. I DO HAVE A TRIAL SET ON APRIL
27TH. IT IS A RICO PROSECUTION IN WHICH THERE IS ONE OTHER
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DEFENDANT. IF FOR SOME REASON I AM GOING TO BE IN THIS CASE
AND THE CASE IS GOING TO BE SET SHORTLY BEFORE THAT, I JUST
WONDERED IF THERE IS A CHANCE YOUR HONOR COULD INTERVENE
WITH THE JUDGE AND EXPLAIN THE SITUATION.
THE COURT: YOU MEAN CALL HIM? I WILL.
MR. SHERMAN: THEN I HAVE NOTHING FURTHER TO SAY.
THANK YOU, YOUR HONOR.
THE COURT: ALL RIGHT. YOU MUST PUT TOGETHER A
STIPULATION THAT PROPERLY REFLECTS WHAT YOU ASKED FOR.
OH, MR. MITNICK, YOU WANT A CONTINUANCE, DO YOU?
THE DEFENDANT: YES, YES, YOUR HONOR.
THE COURT: ASKING FOR A DATE IN APRIL, RIGHT?
THE DEFENDANT: WHATEVER MY ATTORNEY FEELS
APPROPRIATE.
THE COURT: HE SAID APRIL 20TH.
MR. RANDOLPH: YOUR HONOR, I CAN REPRESENT --
THE COURT: DO NOT REPRESENT ANYTHING. I AM ASKING
HIM IS THAT WHAT YOU WANT?
THE DEFENDANT: WHATEVER DATE MY ATTORNEY THINKS HE
COULD BE PREPARED.
THE COURT: YOU JUST SAID APRIL 20TH.
THE DEFENDANT: OKAY.
THE COURT: I HAVE TO HAVE A REQUEST SIGNED BY HIM
IN THE STIPULATION.
MR. SCHINDLER: WE AGREE, YOUR HONOR.
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MR. RANDOLPH: YOUR HONOR, WHAT I WAS GOING TO SAY
WAS THE REASON I SELECTED APRIL 20TH IS BECAUSE MR. MITNICK
ACTUALLY WOULD LIKE ME TO ASK FOR A DATE IN MAY. I DIDN'T
FOR TWO REASONS. ONE, BECAUSE I WAS CONCERNED -- IN LIGHT
OF THE CONVERSATION YESTERDAY, I DIDN'T WANT TO ASK FOR
MORE.
THE COURT: THE COURT WANTS TO GO TO TRIAL.
MR. RANDOLPH: I UNDERSTAND THAT, YOUR HONOR. I
DIDN'T ASK FOR THE DATE IN MAY BECAUSE I WAS CONCERNED
ABOUT BEING CONSCIOUS OF CO-COUNSEL'S CALENDAR AS WELL. MR.
MITNICK DOES WANT ME TO ASK FOR A DATE IN MAY, AND THAT IS
WHAT I WANTED TO ARTICULATE TO THE COURT. THE EXTRA 30 DAYS
WOULD BE A NICE BUFFER SO WE DON'T HAVE TO STAND BEFORE
YOUR HONOR AGAIN LIKE THIS --
THE COURT: IT ISN'T GOING TO DO ANY GOOD TO STAND
IN FRONT OF YOUR HONOR LIKE THIS AGAIN.
MR. RANDOLPH: I UNDERSTAND.
THE COURT: SO YOU GIVE ME THE STIPULATION. LET'S
STOP ARGUING ABOUT THIS AND GO TO TRIAL.
MR. RANDOLPH: COULD THE COURT CONSIDER A DATE IN
MAY IN LIGHT OF WHAT I JUST SAID?
THE COURT: I WOULD CONSIDER THE DATE YOU SUGGESTED.
MR. RANDOLPH: THE APRIL DATE, ALL RIGHT. THERE IS
ONE OTHER MATTER ASIDE FROM THE DISCOVERY ITEMS THAT WAS
LISTED IN MY PAPERS. I WONDER IF I COULD TAKE THAT UP
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BRIEFLY, YOUR HONOR.
THE COURT: WHAT IS IT?
MR. RANDOLPH: IN THE OMNIBUS DISCOVERY ORDER WITH
REPSECT TO MR. MITNICK'S REVIEW OF THE ELECTRONIC
DISCOVERY, THE ORDER FROM LAST SUMMER STATES EITHER MYSELF
OR AN ASSOCIATE FROM MY FIRM MUST BE PRESENT AT THE M.D.C.
WHEN MR. MITNICK IS REVIEWING THE DISCOVERY. ONE OF THE
PROBLEMS WE HAVE RUN INTO IS IF WE ARE THERE WITH HIM THEN
WE CAN'T BE PREPARING THIS CASE FOR TRIAL AND --
THE COURT: THEN HAVE AN ASSOCIATE BE THERE.
MR. RANDOLPH: WELL, I ONLY HAVE TWO ATTORNEYS.
THERE IS ONLY TWO PEOPLE IN MY FIRM THAT ARE AVAILABLE TO
WORK ON THIS CASE, MYSELF AND MY ASSOCIATE.
THE COURT: SOMEBODY IS GOING TO HAVE TO BE THERE.
MR. RANDOLPH: I UNDERSTAND. I SPOKE WITH CAROLYN
SAPPER WHO IS THE ATTORNEY FOR THE M.D.C. TODAY AND MR.
SCHINDLER YESTERDAY.
THE COURT: WORK IT OUT WITH MR. SCHINDLER.
SOMEBODY HAS TO BE THERE.
MR. RANDOLPH: I UNDERSTAND.
THE COURT: SOMEONE WHO IS ACCOUNTABLE.
MR. RANDOLPH: I UNDERSTAND. THE M.D.C. INDICATED
THEY WOULD CONSIDER ALLOWING THE PARALEGAL TO SIT THERE
RATHER THAN AN ATTORNEY.
THE COURT: TALK IT OVER WITH MR. SCHINDLER. A
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PARALEGAL WILL BE ALL RIGHT WITH ME AS LONG AS I KNOW THE
IDENTITY OF THE PARALEGAL AND IT IS ALWAYS THE SAME PERSON.
MR. RANDOLPH: I WILL WORK IT OUT. THAT WAS THE
ONLY OTHER ITEM.
MR. SHERMAN: THANK YOU, YOUR HONOR.
MR. SCHINDLER: IN TERMS OF THE SEVERANCE MOTION ON
MR. DEPAYNE --
THE COURT: HE HASN'T FILED IT.
MR. SCHINDLER: I WANT TO MAKE SURE. WE WILL TAKE
UP THAT IN THE FUTURE. THANK YOU, YOUR HONOR.