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, Plaintiff, v. KEVIN DAVID MITNICK, et. al, Defendants. CASE NO. CR 96-881-MRP MOTION FOR COURT ORDER RE: DISCOVERY; REQUEST FOR SANCTIONS DATE: March 15, 1999 TIME: COURT: 12 TO ALEJANDRO MAYORKAS, UNITED STATES ATTORNEY, AND TO HIS ASSISTANTS DAVID SCHINDLER AND CHRISTOPHER PAINTER: Defendant, KEVIN DAVID MITNICK, by and through his attorney of record, Donald C. Randolph, hereby brings this Motion for Discovery and Request for Sanctions. This Motion is based upon the attached memorandum of points and authorities, the files and pleadings, and any oral or documentary evidence which may be adduced at hearing on this matter. DATED: February 22, 1999 Respectfully submitted, RANDOLPH & LEVANAS By: ________________________ Donald C. Randolph Attorneys for Defendant Kevin David Mitnick MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION The government has failed to comply with its constitutional and statutory discovery obligations. The defense respectfully requests that this Court sanction the government by granting a reasonable continuance of the trial date and ordering Mr. Mitnick be released on bond. Furthermore, Mr. Mitnick respectfully requests that this Court order the government to produce forthwith the following: 1. All Rule 16 evidence; 2. All exculpatory evidence as defined by Brady v. Maryland 373 U.S. 83 (1963) and its progeny; 3. All evidence of promises made to potential witnesses pursuant to Giglio v. United States, 405 U.S. 150 (1972) and its progeny. 4. An Exhibit list which conforms with the Court's June 3, 1998 Pretrial Discovery Order. II. STATEMENT OF FACTS In October, 1996, the defense requested a copy of all discovery within the scope of Rule 16 Fed.R.Crim.P., Brady v. Maryland, 373 U.S. 83 (1963) and Giglio v. United States, 405 U.S. 150 (1972), and their progeny. Exhibit A. On October 8, 1997, the government represented that it had complied with all of its discovery obligations as required by Rule 16, Brady, and Giglio. See Reporter's Transcript 10/8/97 at 7; Exhibit B. On November 17, 1998, the government produced its Witness Statements. Included within these statements was Brady material not previously disclosed to the defense, as well as information indicating the existence of additional Giglio material. The defense immediately renewed its request for full disclosure of all Brady and Giglio information. Exhibit C. On December 8, 1998, in response to the defendant's renewed discovery demands and in contradiction to its previous representations to this Court that it had fully complied with all of its discovery obligations, the government claimed that it had no obligation to produce Giglio information to the defense at this point in time. Exhibit D. On January 20, 1999, the government produced a copy of the plea agreement entered by Ronald Austin on February 27, 1992. Government counsel confirmed that the plea agreement allowed Mr. Austin to receive a more lenient sentence based upon his assistance in the prosecution of Kevin Mitnick. Exhibit E. The government offered no explanation regarding its failure to provide this Giglio material in a timely manner. On January 20, 1999, the government produced a copy of its tentative Exhibit List. Exhibit F. The Exhibit List referred to information falling within the scope of Rule 16 which, it appears, has yet to be provided to the defense. For example, Exhibits 1 14, 253, 463, and 716 of the government's tentative Exhibit List are computer files allegedly seized from a laptop computer owned by Mr. Mitnick in Seattle, Washington. These files were not included in the copies of the electronic evidence previously provided to the defense. On February 8, 1999, the defense inquired as to the apparent discrepancies between the evidence it had been provided and the government's tentative Exhibit List. Exhibit G. To date, the government has not responded to this inquiry. III. ARGUMENT A. THE GOVERNMENT HAS FAILED TO PRODUCE EVIDENCE AS REQUIRED BY THE CONSTITUTION, STATUTORY LAW, THIS COURT'S ORDER, AND CONSISTENT WITH ITS OWN REPRESENTATIONS. Disclosure of relevant materials promotes the proper administration of criminal justice. In our adversary system for determining guilt or innocence, it is rarely justifiable for the prosecution to have exclusive access to relevant facts. See Dennis v. United States, 384 U.S. 855, 870-71 (1966). As set forth herein, the government misrepresented the nature of its compliance with its discovery obligations. In fact, the government has failed to comply with its discovery obligations as defined by the constitution, statutory law, and this Court's express Order. 1. Giglio Information The government has been delinquent with respect to the disclosure of Giglio information, as evidenced by its failure to produce information relating to its dealings with Mr. Austin. The government now acknowledges that in 1992 it made promises of leniency to Mr. Austin, an individual who the government is considering calling as a witness in this case, in exchange for information relating to the prosecution of Mr. Mitnick. Given its failure to disclose the above information until specifically requested by the defense, there is good reason to believe that additional Giglio information may be outstanding. *1 For this reason, the defense respectfully requests that this Court order the government to review its records and produce all information falling within the purview of Giglio forthwith. 2. Brady Information The government has been derelict in its duties to produce all exculpatory evidence relevant to either guilt or sentencing pursuant to Brady v. Maryland. The government's disclosure of the witness statements revealed evidence that numerous "hacking" incidents were reported at some of the victim companies in this case during the relevant time period. These reports, prepared as far back as 1994, further indicate that the crimes alleged against Mr. Mitnick may have been caused by another individual. Exhibit H. It is hard to conceive of evidence which could be considered more exculpatory than statements which tend to demonstrate that an individual other than the defendant may have committed the alleged crime. Nonetheless, the government failed to produce these statements during its disclosure of Brady material. *2 3. Rule 16 Materials The government has failed to comply with its discovery obligations pursuant to Fed.R.Crim.P. 16. The government has produced a tentative exhibit list indicating some 1,708 items which it intends to introduce at trial. Included within this exhibit list is evidence which, to date, has never been provided o the defense. *3 On February 8, 1999, the defense requested that the government verify whether it had provided all of the data listed in its Exhibit List to the defense. Exhibit G. The government's reply to this question was non-responsive. Exhibit I. 4. June 3, 1998 Discovery and Pretrial Management Order In violation of this Court's June 3, 1998 Order, the government has failed to identify and/or produce to the defense those exhibits it actually intends to introduce at trial. a. Encrypted Files On June 3, 1998, this Court ordered that the government was not obligated to provide encrypted computer files to the defense which the government has been unable to decrypt. Thereafter, the government provided the defense with a copy of evidence seized from computers allegedly owned by Mr. Mitnick. The government indicated that this evidence did not include encrypted computer files which it had been unable to decrypt. Exhibit J. Nonetheless, included in the evidence provided to the defense are files stored in encrypted format. *4 It must be deduced, therefore, that the government had successfully deciphered these files prior to producing them to the defense. The government did not, however, provide the defense with any deciphered (or "plain-text"), version of these files. *5 Presumably, the government does not intend to introduce encrypted files at trial given that these files are entirely unintelligible. Indeed, the government previously argued that, for this very reason, it should have no obligation to produce any encrypted files which it could not decrypt to the defense. Assuming that the government only intends to introduce the plain-text version of any encrypted files at trial, the data provided to the defense does not constitute an accurate representation of the evidence the government will seek to introduce as evidence. The government has, therefore, withheld from the defense data which it intends to introduce at trial in violation of the Court's Order. The Court should sanction the government for its withholding of evidence it intends to introduce at trial by excluding the introduction of any data, including the "plain-text" version of any encrypted file it seeks to introduce, which was not previously provided to the defense in accordance with this Court's Order. b. Over-Inclusive Computer "Folders" The government is in further violation of this Court's June 3, 1998 Order in that it has failed to describe, with any reasonable degree of particularity, which exhibits which it actually intends to introduce at trial. Pursuant to the Court's Order, the government was required to produce "a tentative list of exhibits the government intends to introduce at trail during its case-in-chief." The Exhibit List of 1,708 items which was actually produced is deficient in that it lists certain computer files which are actually folders containing hundreds of additional files. Taking one example, Exhibit 156 does not refer to a single computer file, but rather a folder containing 82 separate files. Each of these 82 individual files consists of the equivalent of numerous written pages of information. The government has provided no indication as to which of the 82 individual files contained within this particular folder, nor any portions thereof, it intends to introduce at trial. There are numerous folders like Exhibit 156 which are included in the government's Exhibit List. The government's reference to folders of information in this manner contravenes the letter and spirit of the Court's Order which was intended to identify those items of evidence the government actually intends to introduce at trial. IV. CONCLUSION Mr. Mitnick respectfully requests that this Court order the government to immediately produce all evidence according to its legal obligations. Specifically, the defense requests that the Court Order the government to produce the following: 1. All evidence described pursuant to Fed.R.Crim.P. 16; 2. All exculpatory evidence as defined by Brady v. Maryland, 373 U.S. 83 and its progeny; 3. All evidence of promises made to potential witnesses pursuant to Giglio v. United States, 405 U.S. 150; 4. An Exhibit List in conformance with the Court's June 3, 1998 Discovery and Pretrial Management Order; 5. All exculpatory evidence in the possession of the United States government, regardless of office or judicial district, which in any way relates to these charges. In the alternative, Mr. Mitnick requests that this Court require the prosecution to declare that no such evidence exists. In addition, Mr. Mitnick respectfully requests that the Court sanction the government by excluding from introduction into evidence: 1. Any information or other material which the government has not provided to the defense as of the date of this filing, or according to its obligations as defined by this Court's June 3, 1998 Order. In particular, Mr. Mitnick requests that the government be precluded from introducing any "plain-text" version of any encrypted computer files which have not been produced to the defense as of this date; and 2. Any exhibit which has not been identified with reasonable particularity in the government's tentative Exhibit List. Finally, Mr. Mitnick respectfully requests that this Court remedy the government's delays in complying with its discovery obligations by granting a reasonable continuance of the trial date in this matter and ordering Mr. Mitnick released on bond. DATED: February 22, 1999 Respectfully submitted, RANDOLPH & LEVANAS By: __________________________ Donald C. Randolph Attorneys for Defendant KEVIN DAVID MITNICK *1 Mr. Mitnick will move for an order requiring the government to produce all information relating to the scope of Mr. Austin's participation in the investigation of Mr. Mitnick, his contact with Mr. Mitnick's prior attorney, and the government's knowledge thereof under separate cover. *2 The defense is further aware of investigations of Mr. Mitnick which have occurred in both the Northern and Southern Districts of California. The defense respectfully requests that this Court order the government to produce all exculpatory evidence in t he possession of the United States government, regardless of office or judicial district, which in any way relates to these charges. In the alternative, Mr. Mitnick requests that this Court require the prosecution to declare that no such evidence exists. *3 For example, Exhibits 114, 253, 463, and 716 of the government's tentative Exhibit List refer to electronic files which are not included in any of the evidence provided to the defense. 4Among numerous others, Exhibits 147, 148 and 160 have been provided to the defense in their encrypted format only. 5According to the government and pursuant to the Court's Order, only those encrypted files which had been decrypted were provided to the defense.