IN THE SUPREME COURT OF THE UNITED STATES
OCTOBER TERM 1998
CA No. 97-50365
D.C. No. CR-95-00603-MRP-1
KEVIN DAVID MITNICK,
PETITIONER,
-VS.-
UNITED STATES OF AMERICA,
RESPONDENT.
PETITION FOR WRIT OF CERTIORARI
FROM THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
Donald C. Randolph
1717 Fourth Street, Third Floor
Santa Monica, CA 90401
(310)395-7900
Attorneys for Applicant
Kevin David Mitnick
TABLE OF CONTENTS
I. QUESTIONS PRESENTED FOR REVIEW 1
II. OPINION BELOW 2
III. JURISDICTION 2
IV. CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED 3
V. STATEMENT OF THE CASE 3
VI. REASONS FOR GRANTING THE WRIT 5
VII. CONCLUSION 9
TABLE OF AUTHORITIES
CONSTITUTIONAL PROVISIONS
United States Constitution amendment I 1, 3, 5, 6, 8
CASES
Reno v. American Civil Liberties Union, __U.S.__; 117 S.Ct. 2329 (1997) 8, 9
United States v. Bolinger, 940 F.2d 478 (9th Cir. 1991) 8
United States v. Holloway, 740 F.2d 1372 (6th Cir. 1984) 6
STATUTES
18 U.S.C. § 1029 3
18 U.S.C. § 1029 3
18 U.S.C. § 3553 3, 6
18 U.S.C. § 3583 3, 6
28 U.S.C. § 1254(1) 2
RULES
Rules of Supreme Court 10(a) 5
Rules of Supreme Court 10(c) 7
SENTENCING GUIDELINES
U.S.S.G. § 5F1.5 7
IN THE SUPREME COURT OF THE UNITED STATES
OCTOBER TERM 1998
KEVIN DAVID MITNICK,
PETITIONER,
-VS.-
UNITED STATES OF AMERICA,
RESPONDENT.
PETITION FOR WRIT OF CERTIORARI
THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
The Petitioner, Kevin David Mitnick, by and through his appointed counsel of record, Donald C. Randolph, respectfully prays that a writ of certiorari issue to review the judgment of the United States Court of Appeals for the Ninth Circuit entered on the 20th day of May, 1998.
I. QUESTIONS PRESENTED FOR REVIEW
A. Whether conditions of supervised release which prohibit the petitioner's access to computer hardware, computer software, computer-related equipment,
data encryption devices, and certain telecommunications devices, including
cellular telephones, without the prior approval of the petitioner's probation
officer are permissible under the First Amendment of the United States
Constitution and are reasonably related to legitimate sentencing goals and no
more restrictive than necessary.
B. Whether occupational conditions of supervised release which prohibit the petitioner from being employed or performing any services for any entity
engaged in the computer, computer software, or telecommunications business,
and from acting as a consultant or advisor to individuals or groups engaged in
any computer related activity, and from being employed in any capacity wherein
he has access to computers or computer related equipment or software, bear a
reasonably direct relationship to the offense of conviction, are reasonably
necessary to protect the public from similar unlawful conduct in the future,
and were imposed to the minimum extent necessary to protect the public.
II. OPINION BELOW
On May 20, 1998, the Court of Appeals for the Ninth Circuit entered an
opinion affirming the conditions of supervised release imposed by the United
States District Court for the Central District of California. A copy of the
opinion is attached in as Exhibit C.
III. JURISDICTION
Jurisdiction of this Court is invoked under Title 28, United States Code §
1254(1).
IV. CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
A. Constitutional Provisions:
1. United States Constitution amendment I
B. Statutory Provisions:
1. 18 U.S.C. § 3553
2. 18 U.S.C. § 3583
3. Federal Sentencing Guideline §5F1.5
See Exhibit A for full text of statutes.
V. STATEMENT OF THE CASE
On March 9, 1995, the Petitioner was charged in a multi-count indictment with
unauthorized possession and use of access codes in order to unlawfully obtain
telecommunications services in violation of Title 18 U.S.C. § 1029.
On July 5, 1995, the Petitioner entered into a plea agreement with the
government whereby he agreed to plead guilty to Count two of the indictment
charging possession of fifteen or more unauthorized access devices. Under the
terms of this agreement, relevant conduct for the purposes of sentencing for
this Count was limited to that occurring or resulting in effects within the
Eastern District of North Carolina.
On April 22, 1996, the Petitioner pleaded guilty to count two of the
indictment.
On June 27, 1997, the Petitioner was sentenced, receiving eight months in
custody, followed by three years of supervised release pursuant to the
following conditions [See Judgment and Commitment Order, Exhibit B]:
A. Absent prior express written approval from the Probation Officer, the
Petitioner shall not possess or use, for any purpose, the following:
1. any computer hardware equipment;
2. any computer software programs;
3. modems;
4. any computer related peripheral or support equipment;
5. portable laptop computer, 'personal information assistants,' and
derivatives;
6. cellular telephones;
7. televisions or other instruments of communication equipped with on-line,
internet, world-wide web or other computer network access;
8. any other electronic equipment, presently available or new technology that
becomes available, that can be converted to or has as its function the ability
to act as a computer system or to access a computer system, computer network
or telecommunications network (except defendant may possess a 'land line'
telephone);
B. The defendant shall not be employed in or perform services for any entity
engaged in the computer, computer software, or telecommunications business and
shall not be employed in any capacity wherein he has access to computers or
computer related equipment or software;
C. The defendant shall not access computers, computer networks or other forms
of wireless communications himself or through third parties;
D. The defendant shall not acts as a consultant or advisor to individuals or
groups engaged in any computer related activity;
E. The defendant shall not acquire or possess any computer codes (including
computer passwords), cellular phone access codes or other access devices that
enable the defendant to use, acquire, exchange or alter information in a
computer or telecommunications database system;
F. The defendant shall not use any data encryption device, program or
technique for computers;
G. The defendant shall not alter or possess any altered telephone, telephone
equipment or any other communications related equipment.
On July 15, 1997, Petitioner filed a timely notice of appeal contesting the
foregoing conditions of supervised release.
On May 20, 1998, the United States Court of Appeals for the Ninth Circuit
entered an order affirming the conditions of supervised release imposed by the
district court. See Exhibit C.
VI. REASONS FOR GRANTING THE WRIT
A. The Court of Appeals for the Ninth Circuit has sanctioned an order
involving an important federal question which so far departs from the accepted
and usual course of judicial proceedings as to call for an exercise of this
Court's supervisory power. Rules of Supreme Court 10(a).
The conditions affirmed by the Court of Appeals in this matter prohibit the
Petitioner from engaging in a vast range of expressive and associational
conduct protected by the First Amendment of the Constitution where such
conduct involves the use of modern communications technology. The ban imposed
upon the Petitioner will cripple the Petitioner's ability to exercise
fundamental freedoms protected by the First Amendment of the Constitution even
where entirely unrelated to the offense of conviction. The Sixth Circuit has
held that similar restrictions prohibiting a defendant's use of the mails
could not be considered reasonably related to legitimate sentencing purposes
due to the fact that it would prohibit communications with persons having
nothing to do with her criminal conduct. See United States v. Holloway, 740
F.2d 1372, 1383 (6th Cir. 1984). The Court concluded that, because of its
breadth, the restriction, "does not bear a logical relationship to the
criminal conduct in which [the defendant] has engaged." Id. The same is true
of the instant restrictions.
The imposed restrictions are so expansive as to be essentially arbitrary and,
therefore, cannot be considered reasonably related to the purposes of imposing
conditions of supervised release. See 18 U.S.C. §§ 3583(d)(1); 3553(a)(1)
(consideration of nature and circumstances of offense and history and
characteristics of the defendant); (a)(2)(B) (to afford adequate deterrence to
criminal conduct) (a)(2)(C) (to protect the public from further crimes of the
defendant); (a)(2)(D) (to provide the defendant with needed training, medical
care, or other correctional treatment in the most effective manner).
Moreover, the conditions involve exceedingly greater deprivations of liberty
than are reasonably necessary. 18 U.S.C. §§ 3583(d)(2); 3553(a)(2)(B),
(a)(2)(C), (a)(2)(D).
In addition, the wide-ranging occupational restrictions are flagrantly
inappropriate. For one, there was no competent evidence that the Petitioner's
occupation bore a reasonably direct relationship to the conduct relevant to
the offense of conviction. Secondly, the occupational restrictions were
clearly not imposed to the minimum extent necessary to protect the public. In
fact, they are so austere as to effectively preclude the Petitioner from
maintaining virtually any type of employment in today's modern economy. His
livelihood cannot, in accordance with law, be universally curtailed in the
manner affirmed by the Court of Appeals. U.S.S.G. § 5F1.5.
The conditions here at issue are the modern day equivalent to prohibiting an
individual convicted of check forgery from using a pen. As computer networks
and related technology assume an ever-increasing role in modern society, the
conditions affirmed by the Court of Appeals will effectively, and
unnecessarily, serve to excommunicate the Petitioner. The restrictions
evidence an irrational fear of technology itself which, if unaddressed by this
Court, will serve as a dangerous precedent for the future exercise of First
Amendment rights. In short, the restrictions affirmed by the Court of Appeals
so far depart from the accepted and usual deference afforded these fundamental
rights that this Court is beckoned to exercise its supervisory powers.
B. The United States Court of Appeals for the Ninth Circuit has decided an
important question of federal law that has not been, but should be, settled by
this Court. Rules of Supreme Court 10(c). Under the affirmed conditions, the
Petitioner is prohibited from participating, both personally and through third
parties, in all types of communication, expression, association, and commerce
via computers systems and their networks, including the Internet. As the
"most participatory form of mass speech yet developed" the Internet is
entitled to the highest level of protection from governmental intrusion. Reno
v. American Civil Liberties Union, __U.S.__; 117 S.Ct. 2329, 2340-44 (1997).
This Court has noted that the content on this medium is "as diverse as human
thought." Id. Despite the immeasurable utility of this medium, the Court of
Appeals decided that it could properly prohibit the Petitioner's ability to
use any computer system or network for personal, occupational, or even
educational purposes, in order to protect against the possibility of a
particular misuse.
The Court of Appeals relied upon United States v. Bolinger, 940 F.2d 478,
480-81 (9th Cir. 1991) in support of its conclusion that the restriction of
this Petitioner's First Amendment rights was permissible. The defendant in
Bolinger was prohibited from "participating in the activities or to be a
member of a motorcycle club, including but not limited to the Dirty Dozen."
Id. at 480. The narrow restrictions prohibiting the defendant from
associating with specific individuals who the court determined were likely to
induce the defendant to engage in illegal activity, are not analogous to the
instant case. The restrictions here at issue prohibit the Petitioner from
engaging in any communicative or associational activities based upon the mode
of communication used, a vastly overbroad and essentially arbitrary standard.
Among the activities in which the Petitioner is prohibited from engaging are:
-sending a letter a Senator via e-mail or using a word processor;
-playing a video arcade game;
-calling his family on a cellular telephone;
-working as a computer printer repairman;
-writing any type of computer software program (even using merely a pen and paper)
-accessing a public library's computerized card catalog.
Because computer networks are a "unique" media, "capable of a wide variety of
communication and information retrieval methods," it cannot accurately be said
that a substitute or alternative to communications using these tools truly
exists. Reno v. ACLU, 117 S.Ct. 2329, 2334.
Due to the ever-increasing role of computers in business and commerce, it
will be virtually impossible for the Petitioner to secure any type of
employment other than simple manual labor under these conditions of supervised
release. This case involves an unprecedented restriction on the most
fundamental communicative, associational, and occupational liberties protected
by the Constitution and, therefore, should be reviewed by this Court.
VII. CONCLUSION
For all the foregoing reasons, Petitioner respectfully submits that the
petition for writ of certiorari should be granted.
DATED: August 18, 1998
Respectfully submitted,
By: | RANDOLPH & LEVANAS ___________________________ Donald C. Randolph |
Attorneys for Petitioner Kevin David Mitnick |