DONALD C. RANDOLPH, ESQ. RANDOLPH & LEVANAS A Professional Corporation 1717 Fourth Street, Third Floor Santa Monica, California 90401-3319 Telephone: 310/395-7900 Attorneys for Defendant KEVIN DAVID MITNICK UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA UNITED STATES OF AMERICA, ) CASE NO. CR 96-881-MRP ) Plaintiff, ) OPPOSITION TO GOVERNMENT'S ) PROPOSED FINDINGS OF FACT ) AND CONCLUSION OF LAW RE: ) DEFENDANT'S APPLICATION FOR ) RELEASE PENDING TRIAL v. ) ) KEVIN DAVID MITNICK, et al., ) ) Defendants. ) Date: April 27, 1998 ) Time: 1:30 p.m. ) Ctrm: 12 ) ) ) _________________________________ TO NORA M. MANELLA, UNITED STATES ATTORNEY, AND TO HER ASSISTANT, CHRIS PAINTER: The defendant, KEVIN DAVID MINTICK, by and through his attorney of record, Donald C. Randolph, hereby brings this Opposition to the Government's Proposed Findings of Fact and Conclusion of Law Re: Defendant's Application for Release Pending Trial. /// /// /// /// This opposition is based upon the attached memorandum of points and authorities, declaration of Donald C. Randolph, the files and pleadings in this case, and any oral or documentary evidence which may be adduced at hearing on this matter. DATED: April 27, 1998 Respectfully submitted, RANDOLPH & LEVANAS By: __________________________ Donald C. Randolph Attorneys of Defendant KEVIN DAVID MITNICK MEMORANDUM OF POINTS AND AUTHORITIES I. STATEMENT OF FACTS A statement of relevant facts is set forth in chronological order in the attached declaration of Donald C. Randolph. II. ARGUMENT 1. The District Court is Divested of Jurisdiction over this Matter. The defendant has filed an appeal of the district court's denial of the defendant's application for release pending trial entered into the docket on April 7, 1998. As such, jurisdiction over this issue is currently vested with the United States Court of Appeals for the Ninth Circuit. 2. It is Improper to Delegate the Drafting of Findings of Fact to the Government. 18 U.S.C. § 3142 mandates that the judicial officer shall issue a detention order. At the hearing on March 30, 1998, this Court directed the government to prepare a formal order which it would sign. [Exhibit A]. The defendant submits that it is improper for the court to defer drafting of the findings of fact and the detention order to the government. See, U.S. v. El Paso Natural Gas Co., 376 U.S. 651, 656 n.4 (1964) (adopting verbatim one party's proposed findings of fact is "an abandonment of the duty and trust that has been placed in a judge..."). To the extent that the government has drafted proposed findings of fact, the government has exceeded the Court's instructions. Moreover, the government's submission is procedurally improper pursuant to section 3142. 3. The Government's Proposed Findings are Fictitious. The proposed findings of fact submitted by the government are an improper attempt to rectify the substantive and procedural defects surrounding the denial of the defendant's application for release on bail. Adoption of these findings would create the improper appearance that a detention hearing pursuant to 3142(f) was held in this case when, in fact, no such hearing occurred at which the issues included in the government's submission were discussed nor findings of fact were made. The government cannot legitimately cure deficiencies in this procedure by retroactively submitting factual "findings" which were never addressed before the Court in support of its Order. DATED: April 27, 1998 Respectfully submitted, RANDOLPH & LEVANAS By: __________________________ Donald C. Randolph Attorneys of Defendant KEVIN DAVID MITNICK DECLARATION OF DONALD C. RANDOLPH 1. I am an attorney at law, a member in good standing of the bar of this Court, and appointed counsel of record for defendant KEVIN DAVID MITNICK, in the above-entitled case. 2. On March 25, 1998, the defense file an Application for Release Pending Trial for Mr. Mitnick. 3. On March 27, 1998, the defense filed an application for review of order setting conditions of detention pending trial, despite the fact that no such order was reflected in the record, in an abundance of caution in order to ensure the Court's procedural jurisdiction over this matter. 4. On March 27, 1998, the defense was advised by Court Clerk Robert Flores that the defendant's application for release on bail would be heard on April 6, 1998 before the Court. 5. On March 30, 1998, the defendant appeared in Court for hearing on various pending motions. At this time, the Court stated that the defendant's application for release on bail was denied. 6. On April 7, 1998, the courts denial of the defendant's application for release pending trial was entered into the record. 7. On April 9, 1998, the defendant filed a Notice of Appeal with respect to the denial of his application for release on bail. 8. This appeal is currently pending before the United States Court of Appeals for the Ninth Circuit. The opening brief is scheduled to be filed on May 7, 1998. (1) 9. On April 24, 1998, the defense received by facsimile, a copy of the document entitled [Proposed] Findings of Fact and Conclusion of Law Re: Defendant's Application for Release Pending Trial. [Exhibit B]. I swear under penalty off perjury that the foregoing is true and correct. Executed this 27th day of April, 1998, at Los Angeles, California. ___________________________ Donald C. Randolph ___________________ (1) This date is based upon the defendant's requested briefing schedule. As of the date of this filing, the defense has not received notice that this schedule has been confirmed. 6