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
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, ) DECLARATION OF DONALD C.
) RANDOLPH IN SUPPORT OF
v. ) MOTION FOR DISCOVERY AND
) MOTION TO CONTINUE
KEVIN DAVID MITNICK, et. al, )
) DATE: December 2, 1998
Defendants. ) TIME: 3:00 p.m.
) CTRM: 12
)
)
)
_________________________________)
DECLARATION OF DONALD C. RANDOLPH
I, DONALD C. RANDOLPH do declare as follows:
1. I am an attorney at law, a member in good standing of the
bar of this Court, and attorney of record appointed to represent Kevin
David Mitnick in the above-entitled case.
2. On November 17, 1998, my office received 1,395 pages of
discovery in this matter, consisting of witness statements and related
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documents. This discovery contains significant amounts of Rule 16,
Brady, and Giglio material that should have been disclosed to the
defense over two years ago in response to the defense formal request
for such materials. (See Exhibit A, Correspondence dated October 29,
1996). These matters are discussed below.
3. This declaration is not intended to be a comprehensive
analysis of the witness statements recently disclosed to the defense.
Due to the volume of the material, and its belated disclosure by the
Government, insufficient time is available for a detailed analysis of
these materials. The purpose of this declaration is to provide the
Court with some examples of discovery violations by the Government in
order to provide further good cause for the defense Motion to Continue
the matter so these issues may be presented to the Court in a more
comprehensive fashion and resolved prior to trial.
I.
DISCOVERY REGARDING GOVERNMENT WITNESS/
INFORMANT RON AUSTIN
4. In the discovery, numerous references are made to evidence
which constitutes Brady/Giglio material in that it demonstrates that
government witness, Austin, who was personally engaging in illegal
activity, was trying to "fool" defendant Mitnick regarding his status
as a government witness, and was conducting these activities while
awaiting sentencing and/or on supervised release to the United States
District Court.
5. On or about August 28, 1995, Ronald Austin was sentenced in
the United States District Court for a violation of 18 U.S.C. § 2511
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(Interception of Wire or Electronic Communications) and was placed on
supervised release for a period of 2 years/1.
6. According to the new discovery, Austin began having
telephone conversations with defendant Kevin Mitnick sometime in late
August or early September, 1994. (Exhibit B at 1342) Austin
acknowledges that he surreptitiously tape recorded these conversations
with Mitnick, without authorization from the Government, claiming it
was "necessary to protect himself and corroborate any statements he
may be asked to give [to the Government]" (Exhibit B at 1343).
_________________________
/1 Austin was indicted in 1991.
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7. Thereafter, in September or October, 1994, Austin called
Special Agent McGuire because "he realized he was possibly violating
the terms of his supervised release and talking to a fugitive."
(Exhibit B at 1342)/2. In November, 1994, Austin was interviewed by
Special Agent McGuire and AUSA David J. Schindler (Exhibit B at 1343).
8. On November 4, 1994, Austin provided the illegally taped
conversations with Mitnick to the Government. (Exhibit B at 1291).
After hearing the tapes, AUSA David J. Schindler "authorized" Austin
to continue to surreptitiously record his telephone conversations with
Mitnick "to facilitate the investigation." (Exhibit B at 1300).
II.
EVIDENCE OF BRADY/GIGLIO VIOLATIONS
9. Austin admitted that in the late summer or early fall of
1994, he sent a document to Kevin Mitnick which essentially
constituted a "hacking tool, to wit, information which would allow the
user to engage in unlawful computer activities". (Exhibit B at 1330).
Austin stated that his purpose in sending this communication to Mr.
Mitnick was "to make it look as if he [Austin] were still dabbling in
unlawful computer activities. If he did not give this impression to
Mitnick, Mitnick may think that he was an informant for law
________________________________
/2 It should be noted that Austin was not placed on supervised
release until August, 1995.
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enforcement authorities". (Exhibit B at 1330). It should be noted
that at the time this information was sent, Austin was not yet acting
as an informant for the Government. Additionally, Austin apparently
withheld this information from the Government during his debriefing in
November, 1994, and did not admit to it until being confronted with
the document by the Government in July, 1996. Id.
10. At an unspecified time, but apparently while cooperating
with the Government, Austin provided information to Mitnick that
Austin believed would assist Mitnick in the "cloning" of a cellular
phone.(Exhibit B at 1345).
11. Throughout the reports, Austin admits that he had numerous
conversations with co-defendant Lewis DePayne while the latter was
under investigation by the Government and represented by Attorney
Richard Sherman. At no time did Austin admit to DePayne or Sherman
that he was acting as an informant for the Government.
12. In the defense pleading entitled Motion for Discovery, with
attached exhibits, the subject matter and timing of Austin's
employment by Attorney Richard Sherman are discussed. As discussed
therein, during the course of his employment, Austin admits that he
was told of the substance of communications between Sherman and his
client, Kevin Mitnick. In the discovery attached hereto, Austin also
admits that he had several conversations with Sherman regarding
Mitnick's "situation", and in one of those conversations, "Sherman
discussed his defense strategy". (Exhibit B at 1333).
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III.
OTHER DISCOVERY VIOLATIONS
12. Numerous other instances are present of matters which should
have previously been disclosed to the defense as part of the
Government's discovery obligations. Examples include the following:
a. The evidence discloses the existence of other persons,
previously unknown to the defense, who apparently
participated in illegal "hacking" activities themselves.
This evidence supports the defense theory that some of the
"proprietary material" allegedly contained on Mr. Mitnick's
personal computer came from a source other than the named
victims in the indictment, and under circumstances which
would not immediately indicate the proprietary nature of the
materials. Examples of this type of evidence include the
following:
i. In 1996, the Government investigated and
documented its knowledge of the computer hacking
activities of persons known as Michael Hamilton
and Natalie DuPont. (Exhibit C at 1273);
ii. Victim, Motorola, acknowledges that there
might have been more than one person engaging in
misleading phone calls in order to get unwarranted
computer access (Exhibit C at 880);
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iii. Victim, Nokia, acknowledges that they possess
a tape recording of a person seeking improper
access to computer information that is not the
voice of Kevin Mitnick (Exhibit C at 896).
I declare under penalty of perjury that the above information is
true and correct.
Executed this 2nd day of December, 1998 at Santa Monica,
California.
________________________________
DONALD C. RANDOLPH
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PROOF OF SERVICE
STATE OF CALIFORNIA, COUNTY OF LOS ANGELES
I am employed in the County of Los Angeles, State of California.
I am over the age of 18 years and not a party to the within action.
My business address is:
1717 Fourth Street, Third Floor
Santa Monica, CA 90401-3319
On December 2, 1998, I served the foregoing document described as:
DECLARATION OF DONALD C. RANDOLPH IN SUPPORT OF MOTION FOR
DISCOVERY AND MOTION TO CONTINUE
on interested parties in this action by personal delivery at the
addresses as follows:
Richard G. Sherman
16000 Ventura Boulevard, Fifth Floor
Encino, CA 91436
Christopher Painter
Assistant United States Attorney
312 N. Spring Street, 11th Floor
Los Angeles, CA 90012
I delivered such envelope by hand to the addressee(s) listed
above.
I declare under penalty of perjury under the laws of the State of
California that the above is true and correct.
EXECUTED on December 2, 1998, at Santa Monica, California.
__________________________________
Gregory L. Vinson, Esq.
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Attachments