DONALD C. RANDOLPH, ESQ., California State Bar Number: 62468 RANDOLPH & LEVANAS A Professional Corporation 1717 Fourth Street, Third Floor Santa Monica, California 90401-3319 Telephone: (310) 395-7900 Attorney for Defendant KEVIN DAVID MITNICK UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA UNITED STATES OF AMERICA, ) CASE NO. 96-881-MRP ) ) SUPPLEMENTAL MEMORANDUM RE: ) PETITION FOR RECONSIDERATION; Plaintiff, ) [PROPOSED] ORDER ) vs. ) ) KEVIN DAVID MITNICK, ) ) ) Defendant. ) ______________________________) TO THE UNITED STATES OF AMERICA AND TO THEIR ATTORNEYS OF RECORD HEREIN: Defendant KEVIN DAVID MITNICK by and through his attorney, Donald C. Randolph, hereby files this Supplemental Memorandum Re: Petition for Reconsideration or, Alternatively, for Permission to Appeal. This supplemental memorandum seeks to clarify points of law applicable only to the defendant's request for permission to appeal this matter should the Court decline to grant the relief sought in the defendant's Petition for Reconsideration. After further investigation, the defense has concluded that the provisions of Rule 5 Fed.R.App.Proc. concerning permissive appeals which were cited in its previous petition do not apply in the criminal context. Nonetheless, should the Court deny the defendant's petition for reconsideration of its order, an immediate appeal of this matter would be appropriate pursuant to the collateral order doctrine. United States v. Yellow Freight System, Inc., 637 F.2d 1248 (9th Cir. 1980). As applied to criminal pretrial orders, this doctrine confers appellate jurisdiction as of right when: 1. The pretrial order fully disposed of the appellant's claim of right; 2. The appellant's claim is collateral to and separable from, the principal issue of guilt or innocence (in this case, the defendant's right to be free from penalties due to exercise of privilege against self-incrimination and his right to a fair trial); and 3. The order involves an important right that would be lost if review had to await final judgment. 637 F.2d at 1250-1251. Accordingly, the proposed order accompanying the defendant's Petition for Reconsideration or, in the alternative, permission to appeal reflects the appropriate considerations mentioned herein. DATED: June 17, 1998 Respectfully submitted, RANDOLPH & LEVANAS By: _________________________ Donald C. Randolph Attorneys for Defendant KEVIN DAVID MINTICK [PROPOSED] ORDER The defendant's Petition and Supplement thereto having been duly considered, and good cause having been found, IT IS HEREBY ORDERED: 1. That the parties shall propose an order whereby the defense shall be provided with a copy of all encrypted discovery in the government's possession subject to the conditions of an appropriate non-disclosure agreement. DATED: _________________ _____________________________ Honorable Mariana R. Pfaelzer United States District Judge ALTERNATIVELY, THIS COURT FINDS: 1. That its Order denying the defendant access to encrypted discovery, unless the defendant decrypts the evidence, is final; 2. That the issue of the defendant's right to the encrypted discovery is collateral to the principal issue of guilt or innocence; and 3. The issue involves important rights which would be lost if review had to await final judgment. DATED: _________________ _____________________________ Honorable Mariana R. Pfaelzer United States District Judge