IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, ) No. ) DC# CR-96-881-MRP Plaintiff-Appellee, ) ) vs. ) EMERGENCY MOTION UNDER ) CIRCUIT RULE 27-3 KEVIN DAVID MITNICK, ) ) Defendant-Appellant ) ___________________________________) DONALD C. RANDOLPH RANDOLPH & LEVANAS 1717 Fourth Street, Third Floor Santa Monica, California 90401 Telephone: 310/395-7900 Defendant-Appellant KEVIN DAVID MITNICK CIRCUIT RULE 27-3 CERTIFICATE Counsel for Appeellant Donald C. Randolph 1717 Fourth Street, Third Floor Santa Monica, CA 90401 Telephone: (310)395-7900 Counsel for Appellee Mr. Christopher Painter Mr. David Schindler Assistant United States Attorneys 1100 U.S. Courthouse 312 N. Spring Street Los Angeles, CA 90012 I. FACTS SHOWING EXISTENCE AND NATURE OF EMERGENCY On August 9, 1999, Kevin David Mitnick was sentenced to a term of 46 months in the matter of United States v. Kevin David Mitnick, CR 96-881-MRP, before the U.S. District Court for the Central District of California. According to his religious beliefs, Mr. Mitnick eats only kosher foods which are prepared in accordance with kashruth, Orthodox Jewish dietary law. Followers of this religious doctrine may only eat certain types of foods, prepared in a certain manner. Kosher food must remain physically separate from non-kosher food, as must utensils and plates. Disposable utensils may be used in accordance with kosher requirements. On August 11, 1999, Mr. Mitnick was transferred to the San Bernardino Central Detention Center ("CDC") by the U.S. Marshal Service. This institution is a county contract facility which houses some federal inmates pending designation by the Bureau of Prisons ("BOP"). The San Bernardino CDC does not serve kosher foods. San Bernardino CDC offers a choice of standard or vegetarian meals only. The vegetarian meals are not considered kosher due to the fact that they are prepared in the same kitchen, with the same utensils as all non-kosher food. On August 16, 1999 defendant Kevin David Mitnick filed an Ex Parte Application with the district court seeking an order to be transferred to the Metropolitan Detention Center, Los Angeles, or to some other federal facility which serves kosher food to its inmates. On August 19, 1999, the defense received a copy of the district court's order dated August 17, 1999 which denied Mr. Mitnick's Ex Parte Application. On August 20, 1999 counsel for Mr. Mitnick contacted Assistant U.S. Attorney Christopher Painter to notify him of this action. Mr. Painter was served a copy of this Emergency Motion by fax and U.S. mail. I. INTRODUCTION Mr. Kevin Mitnick is being detained under conditions which violate his First Amendment rights to free exercise of religion. This Court should remedy this immediate and continuing violation of Mr. Mitnick's rights by ordering that he be temporarily transferred to a federal facility which provides kosher meals in accordance with his religious beliefs. II. STATEMENT OF FACTS On August 9, 1999, Mr. Mitnick was sentenced to a term of 46 months in the matter of United States v. Kevin David Mitnick, CR 96-881-MRP, before the U.S. District Court for the Central District of California. According to his religious beliefs, Mr. Mitnick eats only kosher foods which are prepared in accordance with kashruth, Orthodox Jewish dietary law. Followers of this religious doctrine may only eat certain types of foods, prepared in a certain manner. Kosher food must remain physically separate from non-kosher food, as must utensils and plates. Disposable utensils may be used in accordance with kosher requirements. On August 11, 1999, Mr. Mitnick was transferred to the San Bernardino Central Detention Center ("CDC") by the U.S. Marshal Service. This institution is a county contract facility which houses some federal inmates pending designation by the Bureau of Prisons ("BOP"). The San Bernardino CDC does not serve kosher foods. See, Declaration of Donald C. Randolph. San Bernardino CDC offers a choice of standard or vegetarian meals only. The vegetarian meals are not considered kosher due to the fact that they are prepared in the same kitchen, with the same utensils as all non-kosher food. On August 16, defendant Kevin David Mitnick filed an Ex Parte Application with the district court seeking an order to be transferred to the Metropolitan Detention Center, Los Angeles, or to some other federal facility which serves kosher food to its inmates. On August 19, 1999, the defense received a copy of the district court's order dated August 17, 1999 which denied Mr. Mitnick's Ex Parte Application. III. ARGUMENT This Circuit recognizes that "[i]nmates . . . have the right to be provided with food sufficient to sustain them in good health that satisfies the dietary laws of their religion." Ashelman v. Wawrzaszek, 111 F.3d 674, 677 (9th Cir. 1997), citing, McElyea v. Babbitt, 833 F.2d 196 (9th Cir. 1987). Nonetheless, prison regulations which infringe upon the free exercise of religion may be permissible where there is no reasonable alternative to such regulations. Ashelman, at 677, ("the absence of ready alternatives is evidence of the reasonableness of a prison regulation"), (internal citations omitted). Significantly, in both Ashelman and McElvea, the petitioners sought to modify prison operations in order to accommodate their religious beliefs and practices. Mr. Mitnick does not ask this Court to issue an order modifying the internal operations of the San Bernardino CDC, or any other prison. Rather, he merely requests that he be temporarily transferred to one of the numerous federal correctional institutions in this region which already provide kosher food services to their inmates pending his designation by the Bureau of Prisons to a permanent facility.1 In the alternative, Mr. Mitnick requests that he be immediately designated by the Bureau of Prisons and transferred to that facility in order to serve the remainder of his sentence. These entirely reasonable alternatives to housing Mr. Mitnick at the San Bernardino CDC are readily available at little expense. DATED: August 20, 1999 Respectfully submitted, RANDOLPH & LEVANAS By: ____________________________ Donald C. Randolph Attorneys for Defendant KEVIN DAVID MITNICK DECLARATION OF DONALD C. RANDOLPH I, Donald C. Randolph, declare as follows, 1. I am an attorney at law, a member in good standing of the Bar of this Court and all the courts of California, and appointed counsel of record for inmate Kevin David Mitnick in the above-entitled matter. 2. On August 11, 1999, Mr. Mitnick was transferred from the Metropolitan Detention Center ("MDC") to the San Bernardino Central Detention Center ("SBCDC"), a contract facility operated by the County of San Bernardino, where he is to be housed pending designation. 3. Based upon my experience, the designation process ordinarily takes between 30-45 days. 4. On August 12, 1999, Mr. Mitnick advised our office that the SBCDC did not have a kosher diet available, therefore, he was unable to eat without violating the tenets of his religious beliefs. 5. On August 13, 1999, I personally spoke with Rabbi Hillel Cohn who is the rabbi with responsibility for inmates at the San Bernardino CDC. Rabbi Cohn confirmed that that facility does not offer kosher meals. He is aware of instances in which federal detainees of the Jewish faith have been transferred from the facility because of this problem. 6. On Aug 13, 1999 I spoke with Rabbi Aaron Kriegel who oversees the Jewish inmates at the MDC. Rabbi Kriegel confirmed that the MDC does comply with rabbinical standards and offers kosher meals to Jewish inmates. He further confirmed that San Bernardino CDC does not offer kosher food. Rabbi Kriegal stated that even a vegetarian plate at San Bernardino CDC does not comply with rabbinical standards for kosher food in that the vegetables are prepared in the central kitchen and at the same time as all non-kosher foods for the general inmate population. 7. I am informed and believe that most, if not all federal institutions offer kosher meals. However, as a county facility contracted to house federal detainees, the San Bernardino CDC does not offer kosher meals. 8. Mr. Mitnick is a member of the Jewish faith, and has been an active participant in the practice of that faith while housed at the MDC. In compliance with his religious beliefs, Mr. Mitnick has maintained a kosher diet during his detention at the MDC. By virtue of his abrupt transfer and placement at San Bernardino CDC, he is unable to eat in accordance with his religious beliefs. 9. On August 20, 1999, at approximately 12:20 p.m., I contacted Assistant U.S. Attorney Christopher Painter to inform him that my office would be filing this Emergency Motion today. Also on this date, I faxed a copy of this motion to Mr. Painter. I declare under penalty of perjury that the foregoing is true and correct. Executed this 20th day of August, 1999, at Santa Monica, California. _______________________ Donald C. Randolph /1 All correctional facilities operated by the Bureau of Prisons provide kosher meals to those inmates who request them. Furthermore, federal facilities offer kosher foods for sale in the commissary, such as canned fish and vegetables, to supplement standard meal service. 8