I WOULD ASK THE COURT THAT INASMUCH AS I HAVE FILED
AND I BELIEVE THE CLERK HAS SET A MOTION TO HAVE BAIL SET
ON BEHALF OF MY CLIENT AND THAT IS SET --
THE COURT: I AM NOT GOING TO GIVE YOUR CLIENT BAIL.
(5)
MR. RANDOLPH: I THINK THE MATTER IS SET FOR NEXT
MONDAY, YOUR HONOR, AT 1:30.
THE COURT: WELL, I MAY TAKE IT UNDER SUBMISSION
WITHOUT ORAL ARGUMENT BECAUSE I AM NOT GOING TO GIVE HIM
BAIL.
MR. RANDOLPH: WELL, I WOULD URGE THE COURT AT ANY
RATE -- THE ISSUES IN THOSE 3 MOTIONS THAT I JUST RAISED
ARE INTERTWINED WITH THE BAIL ISSUE, AND I THINK IT WOULD
SAVE JUDICIAL ECONOMY AND MAKE MORE SENSE IF THEY COULD BE
HEARD ALL AT THE SAME TIME. THAT IS MY SUGGESTION.
FINALLY, YOUR HONOR, MR. SHERMAN HAS ASKED ME TO
REQUEST OF THE COURT THAT HE BE ALLOWED TO ADDRESS THE
COURT FIRST ON HIS DISCOVERY MOTIONS.
I HAVE NO OBJECTION TO THAT IF THAT IS ALL RIGHT.
THE COURT: THAT'S FINE. WHATEVER ORDER YOU WANT TO
DO THEM IS FINE. PLEASE.
MR. SHERMAN: IF IT PLEASE THE HONORABLE COURT AND
COUNSEL, MY REMARKS WILL BE BRIEF, YOUR HONOR, I THINK NO
MORE THAN FIVE MINUTES. I KNOW YOUR HONOR'S PRACTICES WITH
PLEADINGS THAT ARE FILED WITH THE COURT.
THE COURT: IT IS UP TO YOU, MR. SHERMAN.
MR. SHERMAN: WELL, I THINK I CAN SAY EVERYTHING I
HAVE TO SAY IN ABOUT 5 MINUTES.
I WOULD FIRST REQUEST THAT THE GOVERNMENT IN
RESPONDING TO THESE ORAL ARGUMENTS AND IN REGARD TO THEIR
(6)
RESPONSE RECALL THAT I REPRESENT MR. LEWIS DEPAYNE AND AT
THIS JUNCTURE I HAVE NO IDEA AT ALL OF WHAT ITEMS OF
PHYSICAL, TESTIMONIAL OR COMPUTER EVIDENCE THE GOVERNMENT
WILL SEEK TO INTRODUCE AGAINST HIM IN A TRIAL OF THIS
CASE. I AM AWARE OF ONE TAPE RECORDING. I THINK I
MENTIONED IT WITH REDUNDANCE, AND I WOULD CONCEDE FOR THE
PURPOSE OF THIS ARGUMENT BEFORE THE COURT THAT THAT TAPE
RECORDING JUSTIFIES ONE COUNT IN THE INDICTMENT BUT AS TO
EVERYTHING ELSE I AM IN THE DARK.
INSOFAR AS DEPAYNE IS CONCERNED, THIS TRIAL DOES NOT
PRESENT SIMPLE ISSUES BECAUSE I JUST DON'T KNOW WHAT THE
GOVERNMENT IS GOING TO DO.
THE GOVERNMENT COMPLAINS THAT MY MOTIONS ARE
BOILERPLATE. THAT IS NOT ENTIRELY TRUE. IT IS TRUE IN
GREAT PART. I WOULD BE THE FIRST ONE TO ADMIT IT, AND AS A
MATTER OF FACT, I THINK I DID THAT DISCOVERY MOTION MYSELF
ABOUT 20 YEARS AGO, BUT YOUR HONOR, THE REASON FOR THE
BOILERPLATE MOTIONS IS THAT I DON'T HAVE ANY BASIS UPON
WHICH TO GO FORWARD WITH SPECIFIC MOTIONS.
I HAVE BEEN FURNISHED NOTHING BY THE GOVERNMENT.
WHAT THE GOVERNMENT HAS DONE IN THIS CASE IS IGNORE
MY REQUESTS FOR DISCOVERY AND ALLEGE THAT THEY FURNISHED ME
WITH EVERYTHING THEY HAVE TO.
NOW I DO NOT WISH TO BE IMPERTINENT BUT MAY I
INQUIRE OF THE COURT IF IT HAS IN MIND THOSE LETTERS THAT I
(7)
ATTACHED -- THOSE 2 LETTERS. ALL RIGHT.
NOW IN THOSE LETTERS I THINK IT IS MADE VERY CLEAR.
I SAID PLEASE TELL ME WHAT THE EVIDENCE IS AGAINST DEPAYNE.
IN THE FIRST LETTER I SAID, "YOU HAVE MADE TWO VOLUNTARY
SUBMISSIONS. I CAN'T FIND ANYTHING RELATED TO DEPAYNE."
IN THE SECOND LETTER I SAY "YOU HAVE MADE ANOTHER
VOLUNTARY SUBMISSION. THERE IS NOTHING RELATED TO DEPAYNE.
I DON'T KNOW WHAT YOUR CASE IS ABOUT."
NOW I WAS AWARE, OF COURSE, THAT THERE WAS A LARGE
STORE OF COMPUTER EVIDENCE.
NOW, WHAT THEY DID FURNISH US, FOR EXAMPLE, WITH A
GREAT FLOURISH AND PRIDE WAS AN 187 PAGE INDEX OF MITNICK'S
COMPUTER FILES.
NOW THAT INDEX IS MEANINGLESS TO ME, YOUR HONOR,
BECAUSE IT IS NOT AN EXPLANATORY INDEX.
SUPPOSING I WERE TO WRITE A LETTER TO MR. FLORES.
THE WAY I DO THINGS I WOULD WRITE "FLR LTR
3. DATE," AND THAT IS HOW I WOULD DESCRIBE IT.
I FIND MITNICK'S INDEX HAS THE SAME PROBLEMS.
IT IS PERFECTLY INCOMPREHENSIBLE AND USELESS TO ME.
NOW MR. DEPAYNE AND I EXPLORED IN CONSIDERABLE DETAIL, AND
I TAKE IT IT WAS OBVIOUS FROM READING MY ACCOUNT OF WHAT
HAPPENED AT F.B.I. HEADQUARTERS THAT MR. DEPAYNE WHO I
THINK THE GOVERNMENT WILL ACKNOWLEDGE IS A COMPUTER EXPERT
HAD TO EXPLAIN EVERYTHING TO ME.
(8)
HE EXPLAINED IT THERE. HE EXPLAINED IT IN FRONT OF
THE AGENTS. WE FOUND A PIECE OF EVIDENCE THAT WAS VERY
EXCULPATORY AND YET THE GOVERNMENT AGENTS SAID THERE "WELL,
I HAVE LOOKED AT EVERY PIECE. I THINK SOMEBODY HAS LOOKED
AT EVERY FILE."
YOUR HONOR, THERE WERE THOUSANDS AND THOUSANDS OF
FILES CONTAINING THOUSANDS AND THOUSANDS OF PAGES.
NOW IF THE GOVERNMENT TELLS YOU THAT THERE ARE
CERTAIN FILES THAT ARE ENCRYPTED AND THAT THEY WON'T ALLOW
US TO DECRYPT BECAUSE OF ONE REASON OR ANOTHER, I CAN
UNDERSTAND THAT.
HOWEVER, THE FILES THAT THEY SHOWED US REQUIRED
CERTAIN SOFTWARE TO TRANSLATE. THEY DIDN'T HAVE THAT
SOFTWARE AVAILABLE.
MR. DEPAYNE SAYS THAT IT WOULD TAKE HIM SEVERAL
YEARS TO READ THOSE DOCUMENTS. NOW THAT IS WHY I PUT IN
SORT OF THAT LONG ARGUMENT AND I TALKED ABOUT THE DE LUNA
CASE. JUST BRINGING IT UP, ABOUT 10 OR 12 YEARS AGO I GOT
FROM EFREN MARGOLIN THE ACTUAL PLEADINGS IN THAT CASE. THEY
WERE QUITE INTERESTING BECAUSE HE HAD ALL SORTS OF EXPERTS
TALKING ABOUT HOW LONG IT WOULD BE.
NOW, AS I SAID IN MY MOTION, IF THEY WISH TO
CONTROVERT WHAT MR. DEPAYNE AND I HAD TO SAY ABOUT THAT
THAT WOULD BE THE SUBJECT OF AN EVIDENTIARY HEARING BUT
RIGHT AS WE STAND HERE TODAY THERE IS 4 YEARS OF
(9)
MATERIALS.
NOW YOUR HONOR, I HAVE 2 SUGGESTIONS.
MAY I MAKE THEM?
THE COURT: YES.
MR. SHERMAN: MY SUGGESTIONS ARE THIS: THE
GOVERNMENT EITHER GIVE ME A LIST OF EXHIBITS THEY INTEND TO
USE AT THE TRIAL -- I UNDERSTAND THINGS COME AND GO OUT OF
AN EXHIBIT LIST, BUT AT LEAST A TENTATIVE EXHIBIT LIST SO
THAT I CAN GO TO THOSE EXHIBITS AND SEE WHAT THEY HAVE GOT;
THAT THEY GIVE ME THE JENCKS ACT STATEMENTS. LET'S SEE
WHAT THIS CASE IS ABOUT. I WILL RECIPROCATE. I OFFERED TO
DO THAT IN MY PLEADINGS.
I DON'T WANT TO KID ANYBODY. I DON'T HAVE ANY RIGHT
NOW. I HAVEN'T TALKED TO ANY WITNESSES RIGHT NOW. I HAVE
BEEN DOING THIS A LONG TIME AS YOUR HONOR KNOWS, AND I WILL
TELL YOU, YOUR HONOR, THAT I FRANKLY DON'T KNOW WHAT THE
EVIDENCE IS GOING TO BE.
THE GOVERNMENT WRITES ME A LETTER -- AND I AM JUST
ABOUT DONE, YOUR HONOR -- THE GOVERNMENT WRITES ME A LETTER
AND SAYS, "WELL, YOU KNOW, MR. SHERMAN, DEPAYNE HELPED
MITNICK GET CREDIT CARD NUMBERS AND MITNICK USED DEPAYNE'S
ACCOUNT ON SOME INTERNET PROVIDER."
EVEN IF THAT WERE NOT RIDICULOUS ON ITS FACE BECAUSE
OF THE SURROUNDING FACTS, IT IS CERTAINLY NOT INCRIMINATORY
EVIDENCE.
(10)
LET'S ASSUME THAT WAS A VALID THING TO TELL ME.
WHAT EVIDENCE DO THEY HAVE TO SUPPORT THIS?
I AM NOT AN UNREASONABLE MAN.
WE ARE NOT GOING TO DO ANYTHING UNTOWARD, BUT I HAVE
A MAN THAT IS CHARGED IN 14 COUNTS.
THERE IS SERIOUS JEOPARDY. THE DOLLAR LOSSES MAY BE
VERY GREAT, AND I WOULD JUST LIKE TO KNOW WHAT THE
GOVERNMENT IS GOING TO DO.
IF THE GOVERNMENT DOESN'T WANT TO DO THAT, THEN LET
THEM RESPOND TO MY DISCOVERY MOTIONS IN DETAIL AND WITHOUT
OBJECTION. IF THEY FEEL THEY MUST OBJECT TO SOMETHING OR
THEY FEEL THEY MUST DISMISS SOMETHING TO THIS COURT IN
CAMERA -- I MEAN, GIVE SOMETHING TO THIS COURT IN CAMERA
WHICH THEY DON'T WANT TO GIVE ME, THAT IS FINE, YOUR HONOR,
BUT I ASK THIS COURT VERY HUMBLY JUST TO HAVE THE
GOVERNMENT TELL ME WHAT THIS CASE IS ABOUT.
THE COURT: NOW DO YOU WANT TO ADDRESS YOUR
MOTIONS?
MR. RANDOLPH: YES, I DO, YOUR HONOR.
THE COURT: NOW YOU WANT ME TO DO WHAT WITH RESPECT
TO THE COMPUTER? LET'S PUT IT ON THE RECORD.
MR. RANDOLPH: ALL RIGHT.
YOUR HONOR, HOPEFULLY WHAT I HAVE ADDRESSED IN MY
MOVING PAPERS WITH RESPECT TO COMPUTER ACCESS IS TO TRY TO
SET UP A PROCEDURE WHICH AT OUR LAST APPEARANCE THE COURT
(11)
THREW BACK AT THE GOVERNMENT AND DEFENSE COUNSEL TO WORK
OUT IF THEY COULD BETWEEN THE TWO OF US.
THE COURT: AND DID YOU DO THAT?
MR. RANDOLPH: WE HAVE BEEN UNABLE TO DO THAT, YOUR
HONOR.
THE COURT: YES.
MR. RANDOLPH: I HAVE TRIED TO ADDRESS, AND I WILL
TRY TO ADDRESS NOW PRECISELY WHAT HAPPENED.
IN ORDER FOR BOTH COUNSEL AND MY CLIENT TO BE ABLE
TO MEANINGFULLY ACCESS AND REVIEW THIS INFORMATION, I THINK
I HAVE TO ADDRESS TO THE COURT FIRST HOW IT IS TO BE DONE
AND WHERE IT IS TO BE DONE. THE "HOW" IS THE EASIEST ONE,
YOUR HONOR.
THE COURT: YOU HAVE NO ONE HELPING YOU?
MR. RANDOLPH: I DO, YOUR HONOR. YES, I DO.
THE COURT: BECAUSE I THOUGHT THAT WE HAD -- THE
COURT HAD AUTHORIZED A VERY LARGE AMOUNT OF MONEY.
MR. RANDOLPH: I DON'T THINK THAT'S CORRECT, YOUR
HONOR.
THE COURT: WELL, IT IS PRETTY LARGE FOR A CRIMINAL
CASE; ISN'T IT?
MR. RANDOLPH: I WOULD SAY THAT IS -- ACTUALLY FOR
THE LAST BILL THAT I SUBMITTED, YOUR HONOR, THAT WAS FOR
THE OTHER CASES. OTHER THAN THIS ONE, 2/3RDS OF IT WAS FOR
THE OTHER CASES, AND YES, I THINK THOSE PROCEEDINGS WERE
(12)
ELONGATED BEYOND ANYTHING THAT I ANTICIPATED.
THE COURT: DO YOU HAVE AN EXPERT IN THIS CASE?
MR. RANDOLPH: PARDON ME?
COURT: DO YOU HAVE AN EXPERT IN THIS CASE?
MR. RANDOLPH: I HAVE REQUESTED THAT THE COURT
APPOINT AN EXPERT IN THIS CASE, YES.
THE COURT: SO YOU NEED HIM TO HAVE A COMPUTER AND
YOU NEED AN EXPERT.
MR. RANDOLPH: WELL, I THINK BETWEEN THOSE TWO,
YOUR HONOR, THE MOST IMPORTANT BY FAR IS FOR MY CLIENT TO
ACCESS THE INFORMATION.
AS THE COURT NOTED IN THE LAST HEARING, AND I THINK
ACCURATELY, MY CLIENT IS ASTUTE IN COMPUTER MATTERS. HE IS
ALLEGEDLY THE ONE WHO COMPROMISED MANY OF THESE -
THE COURT: ASTUTE, YES.
MR. RANDOLPH: AND SO THE MOST HELPFUL PERSON TO ME
IN GOING THROUGH THIS EVIDENCE WOULD BE MY CLIENT. THERE IS
NO QUESTION ABOUT IT. I DO NEED -- AND I HAVE ASKED FOR A
VERY, I THINK, MODEST SUM OF MONEY FROM THE COURT FOR AN
EXPERT TO ASSIST, IF THE COURT AGREES, IN COMPILING THE
HARDWARE AND THE SOFTWARE FOR MY CLIENT TO BE ABLE TO
ACCESS THIS INFORMATION, AND I HAVE SUBMITTED THAT TO THE
COURT, BUT HOW MY CLIENT IS TO ACCESS IT -
THE COURT: NOW WHEN YOU SAY HOW, WHAT DO YOU WANT
THE COURT TO ORDER PHYSICALLY OVER THERE IN THE CENTER?
(13)
MR. RANDOLPH: WELL, I WOULD LIKE THE COURT TO
ALLOW DEFENSE COUNSEL --
THE COURT: A SPECIAL ROOM FOR HIM?
MR. RANDOLPH: NO. I THINK THE BEST THING IS TO DO
THE FOLLOWING, YOUR HONOR.
WE HAVE DETERMINED OVER THE LAST COUPLE OF MONTHS
THAT DISPITE THE FACT THAT THE INFORMATION IS IN VARIOUS
SYSTEMS, THE GOVERNMENT COUNSEL IS INCORRECT IN TELLING THE
COURT AT OUR LAST HEARING THAT THE DISCOVERY COULD NOT BE
PLACED ON DISC.
OUR COMPUTER EXPERTISE AND OUR INVESTIGATION TELLS
US THAT ALL THE DISCOVERY THAT THE GOVERNMENT HAS, ALL 5
MILLION PAGES OF IT CAN EASILY BE PLACED ON COMPUTER DISC
PROBABLY AT A COST IN THE HUNDREDS OF DOLLARS, THAT THE
GOVERNMENT GIVE TO THE DEFENSE - FIRST GIVE US A COPY OF
THE COMPUTER DISCOVERY, NUMBER ONE, ON DISC. THAT IS THE
FIRST THING.
THE SECOND THING WE HAVE DETERMINED, YOUR HONOR, IS
THAT WE CAN -- MY CLIENT CAN ACCESS THIS INFORMATION NOT
WITH A ROOM FULL OF COMPUTER HARDWARE BUT WITH TWO
ESSENTIALLY BRIEFCASE SIZED COMPUTERS AND RELATED POWER
SYSTEMS WHICH CAN EASILY BE TRANSPORTED BY SOMEONE FROM OUR
STAFF INTO THE M.D.C. AND REMOVED FROM THE M.D.C. UPON
COMPLETION OF HIS-REVIEW ON THAT PARTICULAR DAY.
THAT TO ME, YOUR HONOR, OBVIOUSLY THE FIRST -- I
(14)
THINK THE MOST COST EFFICIENT WOULD BE FOR THE COURT TO
CONSIDER MY CLIENT'S BAIL MOTION AND LET HIM COME TO MY
OFFICE AND REVIEW IT.
THE COURT: I AM NOT GOING TO GIVE HIM BAIL.
MR. RANDOLPH: I HEARD THAT, YOUR HONOR, AND SO
THAT IS -- I AM PASSING BY THAT ONE TO THE SECOND ONE, AND
THE OTHER POSSIBILITY IS FOR THE COURT -- IS FOR MY CLIENT
TO BE TRANSPORTED TO THE COURTHOUSE BUT AMONG OTHER
REASONS --
THE COURT: TRANSPORTED FROM M.D.C. TO THE
COURTHOUSE TO A ROOM WITH A COMPUTER?
MR. RANDOLPH: BUT YOU MADE THAT VERY CLEAR LAST
TIME THAT YOU WERE NOT INTERESTED IN THAT SO THAT ALLOWS
THE THIRD POSSIBILITY WHICH IS FOR MY CLIENT TO REVIEW IT
AT THE M.D.C.
IT CAN BE DONE IF WE GET A COPY OF THE DISKS, IF THE
COURT ISSUES AN ORDER THAT ALLOWS ME TO BRING IN
ESSENTIALLY THE COMPUTER HARDWARE WHICH INCIDENTALLY, YOUR
HONOR, WE HAVE AN ONGOING INVESTIGATION AS TO WHAT THE COST
IS, AND I HAVE TRIED TO LET YOUR HONOR KNOW, BUT I THINK
THAT THE COMPUTER HARDWARE COULD BE LEASED AT A COST OF
LESS THAN -- AGAIN IN THE HUNDREDS OF DOLLARS A MONTH, NOT
MORE THAN THAT, AND I AM STILL TRYING TO PIN THAT DOWN, BUT
THAT IS MY GOOD FAITH BELIEF, THAT IT WOULD PROBABLY BE IN
THE HUNDREDS OR THOUSAND3 OF DOLLARS A MONTH FOR HIM TO
(15)
REVIEW THAT INFORMATION, AND IF IT IS DONE AT M.D.C. THEN
THAT IS WHAT I AM PROPOSING THAT THE COURT ORDER.
THAT IS A DIFFERENT SUBJECT MATTER THAN WITH RESPECT
TO ACCESS TO THE INFORMATION BECAUSE AS THE COURT KNOWS,
THE GOVERNMENT HAS REFUSED TO MAKE AVAILABLE TO COUNSEL
ANYWHERE A PORTION OF THE COMPUTER DISCOVERY WHICH THE
GOVERNMENT DEEMS IN THEIR OWN MIND THAT WE SHOULD NOT HAVE
ACCESS TO.
THAT INCLUDES TWO DIFFERENT TYPES OF DISCOVERY.
THE FIRST IS WHAT THE GOVERNMENT CHARACTERIZES AS
PROPRIETARY SOFTWARE AND THE GOVERNMENT WITHOUT SEEKING A
PROTECTIVE ORDER FROM THIS COURT HAS SIMPLY DECIDED THAT
EVEN THOUGH IT FALLS WITHIN RULE 16 EVIDENCE, ITEMS THAT
THEY SEIZED AND THAT THEY INTEND TO USE SOME OR A PORTION
OF, IF NOT ALL, AS EVIDENCE IN THIS CASE, NONETHELESS THEY
HAVE ADVISED THE DEFENSE AND THIS COURT THAT THEY ARE NOT
GOING TO TURN IT OVER.
THE SECOND ITEM -- PIECE OF DISCOVERY WHICH FALLS IN
THE CATEGORY OF DISCOVERY THAT HAS NOT BEEN TURNED OVER IS
ENCRYPTED FILES.
THE GOVERNMENT HAS DETERMINED THAT SOME OF THE FILES
THAT THEY SEIZED ALLEGEDLY FROM MY CLIENT ARE ENCRYPTED.
THEY DON'T KNOW THE PASS WORD IN ORDER TO DECRYPT THOSE
FILES.
THE COURT: OF COURSE NOT.
(16)
MR. RANDOLPH: SO THE GOVERNMENT HAS UNILATERALLY
DECIDED THAT UNLESS MY CLIENT TELLS THEM WHAT THE PASS WORD
IS THAT THEY WILL NOT DISCLOSE THAT INFORMATION TO THE
DEFENSE.
AGAIN I THINK THAT IT IS THE GOVERNMENT'S OBLIGATION
TO COME TO THIS COURT AND SEEK A PROTECTIVE ORDER FROM
DISCLOSING THAT INFORMATION TO THE DEFENSE. RATHER THAN DO
THAT THE GOVERNMENT HAS DECIDED SIMPLY NOT TO DISCLOSE IT
AND PUT US IN A POSITION OF REQUESTING ACCESS TO THE
DISCOVERY, SO I KNOW THAT MR. SHERMAN HAS ASKED ACCESS TO
ALL THE DISCOVERY.
THE DEFENSE HAS ALSO REQUESTED ACCESS TO ALL THE
DISCOVERY IN WRITING IN NOVEMBER OF 1996 INCLUDING ALL
COMPUTER DISCOVERY THAT IS WITHHELD BY THE GOVERNMENT.
I WOULD ASK OBVIOUSLY FOR THIS COURT TO ORDER THAT
THEY GIVE US OUR COPY OF THE DISCOVERY DISKS -- ALL THE
DISKS.
MAY I JUST -- WHILE WE ARE ON THE SUBJECT MATTER,
YOUR HONOR, MAY I SUGGEST THAT IT IS SIMPLY -- THERE IS NO
LEGAL BASIS FOR THE GOVERNMENT TO WITHHOLD THE DISCOVERY IN
THE TWO CATEGORIES THAT I HAVE JUST ADDRESSED.
THE FIRST IS BECAUSE IT FALLS -- THE ONLY CASE THAT
WE'VE FOUND THAT FAIRLY TRACKS THIS TYPE OF A SITUATION
WHICH I WILL CONCEDE IS A UNIQUE ONE IS U.S. --
THE COURT: WHAT IS UNIQUE ABOUT IT?
(17)
MR. RANDOLPH: WELL, YOUR HONOR, THAT YOU HAVE
DISCOVERY THAT WAS SEIZED FROM THE CRIMINAL DEFENDANT, YET
THE GOVERNMENT IS REFUSING TO TURN OVER THE DISCOVERY TO
THE DEFENSE.
THE COURT: THERE IS NOTHING SO TERRIBLY UNIQUE
ABOUT THAT.
MR. RANDOLPH: WELL --
THE COURT: IT IS A PROBLEM LIKE ALL OTHER KINDS OF
PROBLEMS.
MR. RANDOLPH: WELL I GUESS WHAT IS UNIQUE, YOUR
HONOR, IS BECAUSE THE GOVERNMENT CLAIMS IT TO BE
PROPRIETARY SOFTWARE, SIMPLY BY SAYING THAT WORD IT ALLOWS
-- AT LEAST IN THE GOVERNMENT'S MIND IT ALLOWS THEM TO
THEN WITHHOLD IT FROM DISCLOSURE TO THE DEFENSE.
THIS ISSUE WAS ADDRESSED IN THE ONLY CASE THAT I AM
AWARE OF, U.S. VERSUS HSU. IT IS A DISTRICT COURT CASE IN
PENNSYLVANIA WHICH I HAVE CITED IN OUT PLEADINGS BEFORE
YOUR HONOR.
IN THAT CASE -- THAT WAS A CASE BROUGHT UNDER THE
ECONOMIC ESPIONAGE ACT IN WHICH THE GOVERNMENT CLAIMED I
WOULD THINK IN A DIRECT ANALOGY THAT TRADE SECRET
INFORMATION HAD BEEN COMPROMISED BY THE DEFENDANT IN THAT
CASE, AND IN RESPONSE THERETO THE COURT FOUND THAT THE
GOVERNMENT COULD NOT WITHHOLD THE DISCOVERY IN THE CASE
SIMPLY BECAUSE THE GOVERNMENT CLAIMED THAT IT WAS TRADE
(18)
SECRET INFORMATION.
NUMBER ONE, THE GOVERNMENT HAD ALLEGED THAT THE
DEFENDANT HAD STOLEN TRADE SECRET ITEMS AND THAT IT WAS
WORTH A CERTAIN DOLLAR VALUE AND THAT THE DEFENDANT,
THEREFORE, HAD A RIGHT TO SEE WHAT THE EVIDENCE WAS AND TO
BE ABLE TO CONFRONT IT AND DEFEND HIMSELF.
I THINK THE SAME IS TRUE HERE.
IN THE INDICTMENT, YOUR HONOR, THE GOVERNMENT HAS
ALLEGED THAT THE DEFENDANT HAD COMPROMISED PROPRIETARY
SOFTWARE, THAT THIS SOFTWARE HAS A VALUE OF MILLIONS OF
DOLLARS.
IN COUNT 15, I BELIEVE, IF MEMORY SERVES, THEY
SPECIFICALLY ALLEGE A DOLLAR VALUE -- A MINIMUM DOLLAR
VALUE OF SOME OF THE INFORMATION SEIZED AND YET THEY DON'T
WANT TO ALLOW THE DEFENDANT TO HAVE ACCESS TO THAT
INFORMATION, AND WHEN I SAY THE DEFENDANT I MEAN THE
DEFENSE, THE DEFENSE EXPERTS, WE CANNOT HAVE ACCESS TO
THAT, YOUR HONOR.
THE COURT: WELL, YOU ARE NOT -- LET'S SEE WHAT THEY
SAY.
MR. RANDOLPH: ALL RIGHT. I WAS GOING TO ADDRESS
THE MOTION RE BILL OF PARTICULARS FIRST IF I MAY TAKE A
MINUTE AND DO THAT.
THE COURT: I AM NOT GOING TO GRANT THAT MOTION.
MR. RANDOLPH: MAY I JUST BRING ONE IMPORTANT POINT
(19)
TO THE COURT'S ATTENTION AND THEN I WILL SUBMIT IT ON THE
PAPERS.
THE LAW IS OBVIOUSLY VERY CLEAR THAT ONE OF THE
REASONS WHY THE DEFENSE WOULD FILE SUCH A MOTION IS WHERE
THERE ARE DOUBLE JEOPARDY CONCERNS.
THE GOVERNMENT IN ITS PLEADINGS HAS ADVISED THE
COURT THAT CERTAINLY IN A CASE LIKE THIS EVEN THOUGH MY
CLIENT CAME INTO THIS COURT FACING SENTENCING IN THE NORTH
CAROLINA CASE, THAT THERE WAS SIMPLY NO OVERLAP WITH THE
NORTH CAROLINA CASE AND THE INSTANT CASE.
THEY ARGUED THAT, YOUR HONOR, AT PAGE 9, FOOTNOTE 3
OF THEIR OPPOSITION TO OUR MOTION FOR BILL OF PARTICULARS.
THAT INFORMATION IS WRONG, AND I THINK IT IS
IMPORTANT THAT THE COURT BE ADVISED OF THAT.
IN THE P.S.R. IN THE NORTH CAROLINA CASE WHICH WE'VE
ALREADY HAD SENTENCING ON, IT MAKES DIRECT REFERENCE TO MY
CLIENT'S ALLEGED HACKING INTO THE NET-COM ONLINE SERVER.
SECONDARILY, YOUR HONOR, AND SOMETHING THAT THE
GOVERNMENT OBVIOUSLY DIDN'T POINT OUT AND THE COURT WOULD
NOT BE AWARE OF, IN THEIR APPELLATE BRIEF IN THE APPEAL
FROM THE PRIOR SENTENCING FROM THE NORTH CAROLINA CASE THE
GOVERNMENT ARGUES AGAIN TO THE APPELLATE COURT THAT MY
CLIENT WAS INVOLVED IN A BREAK-IN TO THE NETCOM SERVER AND
IHAT THAT WAS PART OF THE REASON WHY FOR THE TYPES OF
CONDITIONS THAT THIS COURT PUT ON.
(20)
THE GOVERNMENT AS I JUST INDICATED TO THE COURT SAYS
THERE IS NO OVERLAP BETWEEN THE NORTH CAROLINA CASE, FOR
EXAMPLE, AND THE INSTANT CASE, YOUR HONOR, YET IF THE COURT
WILL VIEW THE INDICTMENT IN THIS CASE AND SPECIFICALLY --
MAY I HAVE ONE MOMENT, PLEASE -- I CAN REMEMBER, YOUR
HONOR, EVEN THOUGH I CAN'T PUT MY HANDS ON THE INDICTMENT
RIGHT NOW -- IN THE LIST OF VICTIMS IN THE INDICTMENT THE
GOVERNMENT LISTS NETCOM AS ONE OF THE VICTIMS THAT MY
CLIENT ALLEGEDLY HAD DURING THE PERIOD IN QUESTION.
THE PERIOD IN QUESTION INCLUDES FEBRUARY OF 1995 IN
BOTH CASES SO HAVE A DIRECT EXAMPLE OF WHERE THE GOVERNMENT
HAS -- WHERE MY CLIENT IS FACING CONCERNS OF DOUBLE
JEOPARDY BOTH EITHER IN SENTENCING OR IN PROSECUTION
INVOLVING THE SAME VICTIM, THE SAME SERIES OF EVENTS, AND
IT IS THAT -- THAT IS PRECISELY THE TYPE OF DAMAGE THAT THE
DEFENSE -- THAT RAISES A RED FLAG TO INDICATE TO THE
DEFENSE THAT WE HAVE TO MOVE AND PURSUE A BILL OF
PARTICULARS.
I HAVE A SITUATION WHERE MY CLIENT EITHER HAS
INVESTIGATIONS OR PENDING CHARGES IN OTHER JURISDICTIONS
THROUGHOUT THE UNITED STATES, AND ON HIS BEHALF I AM VERY
CONCERNED THAT UNLESS WE HAVE SPECIFICITY WITH RESPECT TO
WHO, WHAT, WHEN, WHERE AND WHY FROM THE GOVERNMENT MORE
TEIAN IS IN THE INDICTMENT, THAT WE WILL AGAIN BE PUT IN A
POSITION WHERE HE IS NOT PROTECTED FROM DOUBLE JEOPARDY
(21)
CONCERNS, SO HAVING SAID THAT, YOUR HONOR, I WILL SUBMIT
THE MOTION ON THE BILL OF PARTICULARS AND ASK THE COURT TO
TAKE THAT UNDER SUBMISSION.
I BELIEVE IN ADDRESSING THE COURT'S REQUEST WITH
RESPECT TO EXACTLY WHAT IT IS THE DEFENSE IS ASKING FOR
WITH RESPECT TO THE COMPUTER --
THE COURT: I THOUGHT YOU JUST TOLD ME.
MR. RANDOLPH: I WAS ABOUT TO SAY I THINK I HAVE
ADDRESSED THAT MOTION, YOUR HONOR, SO I AM PREPARED TO
SUBMIT THAT TO THE COURT.
I WOULD ASK THE COURT IN DETERMINING THAT MOTION TO
TAKE INTO CONSIDERATION THE DECLARATION OF ROBERT FRANCE
WHICH WAS SUBMITTED TO THE COURT. IT IS SUBMITTED FOR MORE
THAN ONE MOTION, BUT THE PORTION OF HIS DECLARATION WHICH I
THINK IS RELEVANT ADDRESSES THE ISSUE OF ANY SECURITY
CONCERNS WITH RESPECT TO A COMPUTER THAT DOESN'T HAVE A
MODUM OR A NETWORK CARD.
YOUR HONOR, MY CLIENT HAS REQUESTED SUPPLEMENTAL LAW
LIBRARY TIME, AND THIS IS -- I GUESS THIS CASE -- THE COURT
OFTEN ASKS ME WHAT MAKES THIS CASE UNIQUE, AND I THINK ONE
OF THE POINTS IS NOT NECESSARILY THE REQUEST BY THE DEFENSE
BUT THE OPPOSITION BY THE GOVERNMENT.
IN THIS CASE ORDINARILY, YOUR HONOR, MY EXPERIENCE
IF SOMEONE REQUESTED -- THE DEFENDANT REQUESTED
SUPPLEMENTAL LAW LIBRARY TIME THEY SUBMIT A 2 PAGE MOTION
(22)
TO THE COURT, THE COURT LOOKS AT IT AND EITHER GRANTS IT OR
DENIES IT.
IN THIS CASE WE GET WRITTEN OPPOSITION FROM THE
GOVERNMENT TO MY CLIENT'S ACCESS TO SUPPLEMENTAL LAW
LIBRARY TIME.
IT DOES MAKE THIS CASE UNIQUE.
THE SAME IS TRUE, YOUR HONOR, WITH RESPECT TO MY
CLIENT'S ACCESS TO A COMPUTER AT THE METROPOLITAN DETENTION
CENTER.
WE HAVE A MULTIPAGE OPPOSITION FROM THE GOVERNMENT.
THE COURT: I DON'T BLAME THEM.
MR. RANDOLPH: WELL, I AM JUST SUGGESTING, YOUR
HONOR, THAT THE MOTIVE OF THE GOVERNMENT -- I GUESS THE
QUESTION IS WHAT IS THE MOTIVE OF THE GOVERNMENT TO
PRECLUDE MY CLIENT, FOR EXAMPLE, FROM GETTING ACCESS TO
SUPPLEMENTAL LAW LIBRARY TIME?
WHY WOULD THE GOVERNMENT BE INTERESTED ONE WAY OR
THE OTHER? IT SHOULD BE BETWEEN THE COURT, THE DEFENSE AND
IF THE METROPOLITAN DETENTION CENTER WANTS TO WEIGH IN,
THAT IS FINE, AND I THINK I HAVE TRIED TO INCLUDE ALL OF
THE CORRESPONDENCE BETWEEN MY OFFICE AND THE M.D.C. ON THIS
ISSUE SO THE COURT CAN SEE THE DIFFERENT POSITIONS.
I WOULD SIMPLY SUGGEST, YOUR HONOR, THAT HOPEFULLY
IN OUR REPLY PARTICULARLY WE HAVE ADDRESSED THE FACT THAT
IN ITS OPPOSITION THE GOVERNMENT RAISES THE POINT THAT
(23)
THEIR RESOURCES AND SPACE IS LIMITED.
HOPEFULLY WE HAVE ADDRESSED THAT BY SUBMITTING TO
THE COURT THAT THERE ARE 35 TO 40 SPACES AVAILABLE AT THE
M.D.C. AND THAT THE SUPPLEMENTAL LAW LIBRARY TIME IS
UTILIZED ON FRIDAYS AND SATURDAYS, FIVE HOURS EACH, BY
ABOUT 10 INMATES, AND THAT IS OVER THE LAST YEAR ON
THE AVERAGE, SO THEREFORE, MR. MITNICK WOULD NOT IN ANY WAY,
SHAPE OR FORM IMPINGE ON THE RESOURCES TO OTHER INMATES BY
BEING ONE OF THE TEN OR ELEVEN INMATES THAT GOES THERE ON
THE WEEKENDS.
THE SECOND POINT THAT WE TRIED TO ADDRESS, YOUR
HONOR, IS WHERE THE GOVERNMENT HAS CHARACTERIZED THE LAW
LIBRARY TIME AS A PRIVILEGE. IT IS NOT. IT IS A RIGHT,
ALBEIT, OF COURSE, TO BE DETERMINED UNDER REASONABLE
GUIDELINES, BUT WE HAVE SUGGESTED, YOUR HONOR, THAT BECAUSE
OF THE WAY THAT THE M.D.C. HAS INTERPRETED THE SUPPLEMENTAL
LAW LIBRARY TIME, IT DOESN'T ALLOW AN INMATE TO EVEN GET
THROUGH THEIR ADMINISTRATIVE PROCEEDINGS, GET ACCESS TO THE
LAW LIBRARY UNLESS HE IS WITHIN 20 DAYS OF THE MOTION DATE.
ALTHOUGH THEY SAY TRIAL, I BELIEVE IN GOOD FAITH THAT THEY
PROBABLY INTERPRET THAT AS A MOTION DATE AS WELL.
AS THE COURT KNOWS, MOTIONS HAVE TO BE FILED IN
EXCESS OF 20 DAYS BEFORE THE HEARING OR THE TRIAL.
THEREFORE, IT PRECLUDES A DEFENDANT FROM PARTICIPATING IN
THE PROCESS OF ASSISTING IN PUTTING THE PAPERS TOGETHER.
(24)
FINALLY, THE GOVERNMENT HAS SAID IN A -- I THINK IN
A STATEMENT THAT OBVIOUSLY HAS NO KNOWLEDGE OR BASIS
WHATSOEVER THAT THE DEFENSE DOESN'T -- THAT THERE IS
NOTHING ABOUT MR. MITNICK'S ASSISTANCE WHICH WOULD ASSIST
IN THE DEFENSE, THAT WE ARE PERFECTLY COMPETENT TO PREPARE
THESE PAPERS, AND THE ANSWER IS YES. MY STAFF IS QUALIFIED,
YOUR HONOR, TO PUT MOTIONS TOGETHER BUT WOULD WE BE
ASSISTED BY MR. MITNICK WHO IS ABLE TO GO INTO THE LAW
LIBRARY AND READ CASES AND DO ANALOGIES FROM OTHER TYPES OF
LAW AND ASSISTING IN THE DISCUSSION AND PARTICIPATING IN
HIS OWN DEFENSE AS WE BRING ANALOGOUS CASES TO BEAR ON THE
ISSUE OF COMPUTER ACCESS AND WHAT I THINK ARE SOME UNIQUE
ISSUES IN THE AMOUNT IN THIS CASE -- THIS ANSWER IS YES, HE
IS ABLE TO DO THAT, AND IT DOES ASSIST COUNSEL, BOTH NOT
ONLY FOR -- IN ACTUALLY THE PREPARATION OF THE CASES, YOUR
HONOR, BUT IT ASSISTS IN THE SMOOTH REPRESENTATION OF MY
CLIENT AND IN THE -- JUST IN THE RAPPORT BETWEEN COUNSEL
AND DEFENDANT IF THE DEFENDANT FEELS -- AND IN THIS CASE
OBVIOUSLY I AM TALKING ABOUT MR. MITNICK -- IF HE FEELS HE
IS PARTICIPATING IN HIS DEFENSE, AND YES, IT DOES SAVE
MONEY BECAUSE IN ORDER TO BE ABLE -- IF HE IS UNABLE TO
HAVE ACCESS TO THE LAW LIBRARY IN ORDER FOR ME TO HELP HIM
PARTICIPATE IN THE DEFENSE, IT REQUIRES MY OFFICE TO BE
DOING -- ACTUALLY READING CASES FOR HIM OR BRINGING CASES
AND GO OVER THEM WHILE I MEET WITH HIM AT M.D.C., AND IT
(25)
WOULD SAVE TIME AND MONEY AND ENHANCE THE DEFENSE IF HE WAS
GRANTED THAT LAW LIBRARY REQUEST.
THE FINAL MOTION THAT I THINK IS BEFORE THE COURT,
YOUR HONOR, IS THE MOTION TO CONTINUE THE CASE, AND I WILL
CONCEDE UP FRONT THAT AT OUR LAST HEARING, YOUR HONOR, I
TOLD THE COURT I WOULD ADVISE THE COURT BEFORE THE END OF
THE YEAR, THAT BEING LAST YEAR, WHETHER I WAS ABLE TO GET
ACCESS -- WHETHER THE GOVERNMENT AND I WERE ABLE TO GET
ACCESS AND COME TO A MEETING OF THE MINDS WHEREIN MY CLIENT
AND I WOULD BE ABLE TO ACCESS THE COMPUTER DISCOVERY, AND I
CONCEDE, YOUR HONOR, AND I AM SORRY THAT I DIDN'T MAKE THE
DEADLINE BY THE END OF THE YEAR --
THE COURT: YOU WON'T MAKE IT BY THE END OF THIS
YEAR, EITHER.
MR. RANDOLPH: WELL, I AM CONCERNED ABOUT THAT,
YOUR HONOR, AND I AM HOPEFUL THAT THE COURT'S RULINGS ON
COMPUTER ACCESS WILL OBVIATE THAT.
THE COURT: OH, I CAN ASSURE YOU THAT THE COURT IS
GOING TO MAKE SOME RULINGS THAT WILL CAUSE THE MATTER TO GO
TO TRIAL.
MR. RANDOLPH: I APPRECIATE THAT, YOUR HONOR.
THE COURT: YOU HAVE MY WORD ON IT.
MR. RANDOLPH: WE DID FILE IN JANUARY AN EX PARTE
APPLICATION WHICH WAS THEN TURNED INTO A MOTION TO CONTINUE
THE TRIAL DATE.
(26)
THE GOVERNMENT -- WE WERE UNABLE TO STIPULATE TO THE
CONTINUANCE BECAUSE THE GOVERNMENT AS A REQUIREMENT OF THE
STIPULATION WANTED COUNSEL TO AGREE THAT NO FURTHER
EXTENSION WOULD BE REQUESTED IN ORDER TO ACCESS THE
DISCOVERY.
SINCE THE MOTION FOR COMPUTER ACCESS BY BOTH THE
DEFENSE AND THE DEFENDANT STILL NEEDS TO BE RESOLVED BY
THIS COURT, I FELT CONSTRAINED TO BE ABLE TO ENTER INTO
THAT KIND OF A STIPULATION EVEN THOUGH I WOULD VERY MUCH
LIKE -- AND I KNOW MY CLIENT WOULD LIKE THIS MATTER TO COME
TO TRIAL IN A TIMELY FASHION.
THE GOVERNMENT HAS SAID REPEATEDLY TO THIS COURT
THAT "WELL, WE HAVE MADE LIBERAL DISCOVERY, IT IS ALL HERE
(27)
IN THE COMPUTER DOCUMENTS," AND I ASKED THE COURT TO TAKE
A MINUTE AND LOOK AT OUR REPLY TO THE COMPUTER MOTION.
THE COURT: TAKE A MINUTE? TAKE A MINUTE TO LOOK
AT THE REPLY?
MR. RANDOLPH: NO, I'M SORRY, JUST ONE EXHIBIT,
YOUR HONOR.
THE COURT: I HAVE SPENT HOURS AND HOURS ON THIS
CASE, HOURS AND HOURS AND HOURS.
MR. RANDOLPH: I WASN'T GOING TO TALK ABOUT -- I AM
SORRY, YOUR HONOR. I WAS REFERRING TO AN EXHIBIT,
EXHIBIT A TO THE REPLY MOTION WHICH LISTS -- PARTIALLY
LISTS WHAT THE GOVERNMENT IS REFERRING TO IN THE COMPUTER
EVIDENCE.
IT IS HUNDREDS UPON HUNDREDS OF FILES WITH NO
DESCRIPTION WHATSOEVER.
THE GOVERNMENT HAS SAID TO CO-COUNSEL -- THEIR AGENT
HAS SAID THAT, NUMBER ONE, SOMEONE IN THE GOVERNMENT HAS
REVIEWED ALL THE COMPUTER EVIDENCE, AND NUMBER 2, THAT
THERE ARE NO NOTES OR SUMMARIES OF THAT EVIDENCE.
IT IS ALMOST HARD TO BELIEVE THAT BOTH OF THOSE
THINGS ARE SO, YOUR HONOR.
IT IS HARD TO BELIEVE THAT THE GOVERNMENT HAD
SOMEONE REVIEW ALL THE EVIDENCE AND DID NOT MAKE A SINGLE
NOTE OR A SUMMARY OF ANY OF THAT COMPUTER EVIDENCE. IT
DEFIES BELIEF, AND I WOULD SUGGEST, YOUR HONOR, THAT ANY
(28)
ORDER THAT THE COURT MAKES TO GET THIS CASE TO TRIAL -- I
JOIN IN WHAT MR. SHERMAN HAS SAID, THAT THE GOVERNMENT
SHOULD DESIGNATE WHAT ITEMS OF EVIDENCE IN THE COMPUTER
EVIDENCE THEY PLAN TO USE AS THEIR EXHIBITS IN THIS CASE,
AND SECONDLY, IF THEY HAVE A SUMMARY OF THE EVIDENCE I
REQUEST THE COURT PLEASE ORDER THE GOVERNMENT TO TURN OVER
THAT SUMMARY TO THE DEFENSE SO AT LEAST WE HAVE SOME KIND
OF IDEA OF WHERE IN THE -- I THINK IT IS BETWEEN 2.5 AND 5
MILLION DOCUMENTS WE CAN DETERMINE --
THE COURT: THERE ARE LOTS OF CRIMINAL CASES AND
CERTAINLY HUNDREDS OF CIVIL CASES THAT HAVE MILLIONS OF
DOCUMENTS. THERE IS NOTHING UNUSUAL ABOUT THAT.
WE HAVE CRIMINAL CASES LIKE THAT ALL THE TIME.
MR. RANDOLPH: I HAVE ACTUALLY BEEN IN THE COURT
DURING THE KEATING CASE, YOUR HONOR, IN WHICH I RECALL
SEEING MILLIONS UPON MILLIONS OF DOCUMENTS IN THAT CASE.
THE COURT: THERE IS NOTHING UNUSUAL ABOUT THAT.
MR. RANDOLPH: BUT WHAT IS UNUSUAL, YOUR HONOR, IS
IN THAT CASE WE HAD HUNDREDS OF PAGES OF LISTS OF WHAT THE
GOVERNMENT'S EVIDENCE WAS INTENDED TO BE ALONG WITH
SUMMARIES. IT WAS ALL ON HARD COPY. I WAS ABLE TO GO TO
CO-COUNSEL'S OFFICE IN CHICAGO AND GO THROUGH FILES AND
THEY HAD EVERYTHING FILED AND CATEGORIZED. IT HAD BEEN
DISCLOSED BY THE GOVERNMENT TO THE DEFENSE, AND ALTHOUGH IT
WAS A LENGTHY AND TEDIOUS PROCEDURE, IT WAS CAPABLE OF
(29)
BEING DONE.
THE DOCUMENTS IN THIS CASE ACTUALLY DWARF THE NUMBER
OF DOCUMENTS IN THAT CASE NOT ONLY IN SHEER VOLUME BUT
BECAUSE THERE IS NO ACCESS WHATSOEVER OTHER THAN THESE
INCOMPREHENSIBLE FILE NAME FOLDERS THAT THE GOVERNMENT HAS
GIVEN TO US, SO PUTTING ASIDE THE FACT THAT THE DEFENSE AND
BOTH OF MY CLIENTS AND AN EXPERT NEED ACCESS TO THE
DOCUMENTS, PUTTING THAT ASIDE, ONCE WE GET THAT ACCESS,
YOUR HONOR, IT WILL STILL TAKE, I WOULD SAY, AN INORDINATE
AMOUNT OF TIME UNLESS THIS COURT ORDERS THE GOVERNMENT TO
DEFINE AND DESCRIBE TO THE DEFENSE WHICH OF THESE MILLIONS
OF EXHIBITS THEY PLAN TO USE IN THE TRIAL.
THE COURT: IS THAT ALL?
MR. RANDOLPH: THAT'S IT, YOUR HONOR, THANK YOU.
MR. PAINTER: YOUR HONOR, BEFORE I BEGIN LET ME
JUST CLEAR UP ONE GLARING MISCONCEPTION THAT MR. RANDOLPH
HAS, AND THAT IS, WITH RESPECT TO THE SOURCE CODE IN THIS
CASE, THE PROPRIETARY SOFTWARE AS HE CALLS IT, WE HAVE FROM
DAY ONE SAID THAT IS AVAILABLE FOR YOUR REVIEW. YOU MAY
LOOK AT THAT MATERIAL. INDEED, YOU SHOULD LOOK AT THAT
MATERIAL.
HOWEVER, WHAT WE HAVE SAID AND WE HAVE SAID THIS TO
THE COURT AS WELL IS THAT WE WERE UNWILLING TO MAKE A COPY
OF THAT MATERIAL, JUST LIKE A TRADE SECRET -- JUST LIKE A
HOLLYWOOD SCRIPT GETS STOLEN -
(30)
THE COURT: I DON'T KNOW HOW MANY TIMES WE HAVE TO
GO OVER THAT POINT.
THAT HAPPENS. THAT IS EXACTLY THE STATE OF THE RECORD.
MR. PAINTER: FINE, YOUR HONOR. THAT WAS ONE THING
I WANTED TO CLEAR UP BECAUSE I GOT THE IMPRESSION THAT MR.
RANDOLPH WAS SAYING WE WERE DENYING HIM ANY ACCESS TO THAT.
THAT IS JUST NOT TRUE.
THE SECOND POINT, YOUR HONOR, JUST AS BRIEFLY, HE
REFERS TO THIS FILE LIST, AND I WILL GET TO THIS MORE IN A
MINUTE, IT IS INCOMPREHENSIBLE.
I BELIEVE THAT FILE LIST IS INDEED A FILE LIST OF
THE FILES CONTAINED IN MR. MITNICK'S COMPUTER IN SEATTLE
AND RALEIGH. HE IS THE ONE WHO PUT THOSE FILES THERE. THEY
ARE NAMES THAT HE GAVE THOSE FILES.
THE COURT: I KNOW THAT.
MR. PAINTER: I THINK JUST AS A GENERAL -- IT IS
HELPFUL, I THINK, IN THIS CASE TO JUST EXPLAIN A LITTLE BIT
OF THE CHRONOLOGY BECAUSE WHAT IS FRUSTRATING TO THE
GOVERNMENT, YOUR HONOR, IS THAT FROM DAY ONE -- FROM THE
TIME THIS CASE WAS INDICTED, WE HAVE TOLD THE DEFENSE "THE
ELECTRONIC EVIDENCE IS HERE. PLEASE COME AND LOOK AT IT."
WE HAVE TOLD THEM AGAIN AND AGAIN AND AGAIN.
THE COURT: I KNOW THAT.
MR. SCHINDLER: THERE WAS ONE TIME WHEN MR.
(31)
RANDOLPH ON THE EVE OF THE NORTH CAROLINA SENTENCING --
WHEN HE TRIED TO DELAY THAT SENTENCING BECAUSE HE WANTED TO
LOOK AT THAT EVIDENCE THAT HE SENT A REPRESENTATIVE FROM
HIS OFFICE TO LOOK AT IT FOR A COUPLE OF HOURS.
THERE WAS A TIME IN JANUARY WHEN MR. DEPAYNE AND HIS
ATTORNEY CAME FOR A COUPLE OF HOURS.
THEY COMPLAINED ABOUT CERTAIN THINGS THEY COULDN'T
SEE AND CERTAIN TOOLS THEY DIDN'T HAVE BUT SPECIAL AGENT
MCQUIRE SAID, "CONTACT MR. SCHINDLER AND MR. PAINTER AND HE
CAN MAKE ARRANGEMENTS."
THERE WAS NO CONTACT, NOTHING.
I MADE THIS EVIDENCE AVAILABLE. THE EVIDENCE IS NOT
AS VAST AS IS BEING REPRESENTED AND NUMBERS BEING BANDIED
AROUND. I WANT TO TALK ABOUT THAT A LITTLE BIT, TOO, BUT WE
HAVE MADE IT AVAILABLE AGAIN AND AGAIN, AND MR. RANDOLPH IN
THE OCTOBER 8TH HEARING BEFORE YOUR HONOR WHEN WE SET THE
TRIAL DATE SAID IT WAS INCUMBENT ON HIM NOW TO TAKE A LOOK
AT IT.
THERE WAS NO CONTACT AND NO REQUEST TO SEE THAT
EVIDENCE SINCE THAT JUNE OF '97 DATE. IT JUST HASN'T
HAPPENED AND FOR THE DEFENSE TO COME IN NOW AND SAY, "WE
NEED THE COURT TO ORDER ALL OF THESE THINGS BECAUSE THE
GOVERNMENT IS NOT BEING FORTHCOMING," THAT IS JUST NOT
FAIR. WE HAVE BEEN FORTHCOMING. IF THEY TOOK THE TROUBLE TO
COME AND LOOK AT THIS EVIDENCE, IN FACT, THEY WOULD SEE
(32)
THAT.
ONE, LET ME FOR THE COURT BREAK DOWN WHAT THIS
EVIDENCE IS TO GIVE THE COURT A BETTER CONCEPT BECAUSE I
THINK WHAT I HAVE HEARD CONSTANTLY IS SOME TENS OF MILLIONS
OF PAGES BEING BANDIED ABOUT, AND I WANT TO BE A LITTLE
MORE PRECISE ON WHAT THAT REALLY MEANS.
IN THIS CASE -
THE COURT: YOU ARE MAKING THE RECORD, SO YOU MAKE
IT.
MR. PAINTER: IN THIS CASE, YOUR HONOR, THERE IS 70
-- I WOULD SAY 70 TO 80 PERCENT OF THE EVIDENCE THAT IS IN
ELECTRONIC FORM. IT IS TWO TYPES. ONE IS APPLICATION
SOFTWARE. IT IS WORD PERFECT. IT IS THE AVAILABLE SOFTWARE
THAT HAS NO MEANING OR RELEVANCE TO THIS CASE AT ALL.
THE OTHER SIGNIFICANT BLOCK OF THAT 70 TO 80 PERCENT
IS THIS PROPRIETARY SOURCE CODE, THE STUFF THAT WAS STOLEN,
THE STUFF THAT HAD INJURED THE VICTIMS IN THIS CASE.
NOW THAT APPEARS AND THE FILES ARE VERY LARGE. THEY
APPEAR A NUMBER OF TIMES BECAUSE MR. MITNICK AND MR.
DEPAYNE HELPED TRANSFER THOSE FILES FIRST FROM THE VICTIM
TO THE INTERMEDIATE STORAGE SITE, TO THE UNIVERSITY AND
FINALLY TO MR. MITNICK'S COMPUTER SO THE SAME FILES APPEAR
AGAIN AND AGAIN.
THE RELEVANT THING ABOUT ALL OF THAT IS IDENTIFYING
THE FILE AS A FILE, THAT IT IS WHAT IT IS, THAT IT IS
(33)
STOLEN SOFTWARE. YOU COULD PRINT THE FILE OUT AND IT WOULD
BE THOUSANDS OF PAGES BUT THE ONLY RELEVANT THING IS THE
SOURCE CODE, DOES IT APPEAR AGAIN AND AGAIN.
THAT DOESN'T TAKE THAT MUCH EFFORT TO DETERMINE.
THERE IS ALSO ENCRYPTED FILES AS COUNSEL HAS STATED,
AND THE GOVERNMENT'S POSITION IS IT WOULD BE IRRESPONSIBLE
FOR US TO RELEASE. WE DON'T HAVE ACCESS TO WHAT IS IN THOSE
FILES. WE DON'T KNOW WHAT IS IN THERE. IT COULD BE
CONTRABAND. IT COULD BE CREDIT CARD NUMBERS. IT COULD BE
STOLEN SOFTWARE. IT COULD BE FINANCIAL.
THE COURT: AND UNDOUBTEDLY YOU ARE NOT GOING TO FIND OUT.
MR. PAINTER: WE HAVE NOT FOUND OUT TO THIS POINT
AND UNTIL WE FIND OUT, WE CAN'T JUST SIMPLY RELEASE THAT
INFORMATION.
THIS MAY BE A UNIQUE CASE WITH THE ANALOGY, I
SUPPOSE, THAT IT IS A SAFE THAT HAS STUFF LOCKED IN IT.
USUALLY YOU CAN BUST OPEN A SAFE. WE DON'T KNOW
WHAT IS IN THE FILES, AND WE CAN'T RELEASE THEM WITHOUT
KNOWING THAT.
THE COURT: ARE YOU GOING TO USE THEM?
MR. PAINTER: NO, YOUR HONOR.
THE COURT: YOU CAN'T USE THEM.
MR. PAINTER: NO. NEITHER CAN WE USE THEM NOR WILL
WE USE THEM IN OUR CASE. WE ARE NOT USING THOSE AS
(34)
EVIDENCE. WE DON'T KNOW WHAT IS IN THOSE FILES. IF A FILE
HAS A NAME THAT IS SIMILAR TO ANOTHER NAME THAT WAS
TRANSFERRED, THAT FACT MIGHT BE USED BUT REALLY NOTHING
MORE THAN THAT AND THAT IS NOT ANYTHING MORE THAN THEY CAN
FIND OUT IF THEY EXERCISED EVEN A LITTLE DILIGENCE TO LOOK
IN THESE FILES.
MR. DEPAYNE POINTED OUT THAT THERE WAS -- EVEN JUST
A HAPPENSTANCE, HE RAN ACROSS A FILE HE THOUGHT WAS
EXCULPATORY - WE DON'T THINK IT IS BUT IT IS NOT OUR
DETERMINATION TO MAKE - NONETHELESS THAT FILE WAS A FILE
CALLED LEWIS1 -- LEWIS.1 WHICH WAS ON THE DIRECTORY LISTING
FOR MR. MITNICK'S COMPUTERS. IT WAS A FILE MAINTAINED BY MR.
MITNICK.
IT WAS CORRESPONDENCE INVOLVING MR. DEPAYNE.
LEWIS IS MR. DEPAYNE'S SCREEN NAME, HIS COMPUTER
NAME. ANY EXERCISE OF ACTUALLY LOOKING AT THE EVIDENCE
GIVEN BY THE GOVERNMENT TO THE DEFENDANTS WOULD HAVE
REVEALED THAT IF I WERE A DEFENDANT AND I SAW MY SCREEN
NAME AS ONE OF THE FILES I WOULD WANT TO LOOK AT THAT FILE,
AND THEY EASILY COULD HAVE.
MR. RANDOLPH CLAIMS THERE ARE 10S OF MILLIONS OF
DOCUMENTS AND IT WILL TAKE THEM FOREVER TO GO THROUGH THIS.
INDEED, HE CLAIMS IT IS WORSE THAN A SAVINGS AND LOAN CASE.
WELL, YOUR HONOR, THE WAY IT IS EASIER THAN A
SAVINGS AND LOAN CASE, SEARCH TOOLS CAN BE USED TO SEARCH
(35)
THROUGH COMPUTER EVIDENCE.
THE COURT: IT IS NOT UNREASONABLE AT ALL FOR MR.
SHERMAN TO SAY TO YOU, "WE WOULD LIKE A TENTATIVE EXHIBIT
LIST." THAT IS NOT UNREASONABLE.
MR. PAINTER: WELL, YOUR HONOR, AT THIS POINT IN
TIME ESPECIALLY GIVEN THAT THIS IS SIGNIFICANTLY PRIOR TO
TRIAL AND THAT MR. SHERMAN AND MR. RANDOLPH HAVE MADE NO
ATTEMPT TO LOOK AT ANY OF THIS STUFF SO FAR, I THINK IT IS
UNREASONABLE AT THIS POINT IN TIME.
THE COURT: IT IS NOT UNREASONABLE FOR THEM TO ASK
FOR THAT IN THIS CASE.
MR. PAINTER: YOUR HONOR, WE WILL CERTAINLY AT SOME
POINT FAIRLY BEFORE TRIAL GIVE THEM AN EXHIBIT LIST THAT
WE ARE GOING TO USE.
(36)
ONCE WE START GETTING INTO THE TRIAL PREPARATION
PHASE, PARTICULARLY WHERE THERE ARE A NUMBER OF WITNESSES
FROM OTHER JURISDICTIONS, FROM FOREIGN JURISDICTIONS THAT
ARE INVOLVED WE WILL --
THE COURT: WHAT YOU HAVE TO DO IS YOU HAVE TO GIVE
THE COURT A PROPOSAL AS TO WHAT YOU ARE GOING TO DO.
MR. PAINTER: AND, YOUR HONOR, WHAT WE DO --
THE COURT: BY DATES, HOW YOU ARE GOING TO DO IT.
MR. PAINTER: WELL, YOUR HONOR, ONE THING I CAN
REPRESENT TO THE COURT THAT WE HAVE TALKED WITH COUNSEL
BEFORE ABOUT IS THAT WE WOULD RELEASE TO THEM THE JENCKS
ACT STATEMENTS SIGNIFICANTLY BEFORE TRIAL -- 90 DAYS BEFOR
TRIAL.
THE COURT: I DON'T KNOW WHAT SIGNIFICANTLY MEANS.
MR. PAINTER: WELL, 90 DAYS BEFORE TRIAL IS WHAT
SIGNIFICANTLY MEANS.
THE COURT: YOU HAVE TO GIVE ME A WRITTEN
PROPOSAL --
MR. PAINTER: WE WILL DO THAT, YOUR HONOR.
THE COURT: -- ABOUT ALL THE EVIDENCE IN RESPONSE TO
THIS MOTION.
MR. PAINTER: WELL, YOUR HONOR, I GUESS WE CAN GIVE
YOU -- ONE MOMENT, YOUR HONOR.
THE COURT: NO. YOU DON'T HAVE TO DO IT RIGHT NOW.
MR. PAINTER: I UNDERSTAND THAT, YOUR HONOR, AND WE
(37)
WILL ADDRESS THE COURT IN WRITTEN FORM.
MR. PAINTER: NOW MR. RANDOLPH PROPOSES AN
ALTERNATIVE, AND THE ALTERNATIVE IS TO SET UP A COMPUTER
ROOM IN A SENSE.
THE COURT: OVER AT THE M.D.C.
MR. PAINTER: OVER AT THE M.D.C.
THE COURT: WE ARE NEVER IN THE WORLD GOING TO DO
THAT.
MR. PAINTER: AND THE M.D.C. HAS EXPRESSED PROBLEMS
WITH THAT.
THE COURT: WELL, I DON'T BLAME THEM.
MR. PAINTER: THE OTHER ALTERNATIVE, I SUPPOSE, IS
THAT MR. RANDOLPH WOULD LIKE US TO GIVE HIM SIMPLY A COPY
OF EVERYTHING WE HAVE.
LET ME EXPLAIN WHAT THE PROBLEM WITH THAT IS.
THE COURT: AND YOU ARE NOT GOING TO HAVE TO DO THAT, EITHER.
MR. PAINTER: SO OUR PROPOSAL IS TO ARRANGE FOR MR.
MITNICK WITHIN REASON TO REVIEW THAT EVIDENCE -- CERTAINLY
IF AN EXPERT IS INVOLVED, I AM NOT SURE THAT INVOLVES -- IN
(40)
FAIRNESS, YOUR HONOR, I THINK THAT MR. MITNICK WOULD SPEND
EVERY MOMENT OF EVERY DAY IF HE COULD DOING THAT.
THE COURT: CERTAINLY.
MR. PAINTER: I THINK AT SOME POINT THE COURT HAS
TO DECIDE --
THE COURT: YOU SEE, IF ALL YOU ARE GIVING HIM IS
THE OPPORTUNITY TO LOOK AT THE EVIDENCE -- BIG EVIDENCE,
THE BIG BALL OF EVIDENCE, AND YOU ARE NOT WILLING TO NARROW
IT TO WHAT YOU ARE GOING TO USE, THEN IT MAKES IT VERY MUCH
MORE ONEROUS TO GET THIS DONE.
MR. PAINTER: WELL, THE PROBLEM WITH THAT, YOUR
HONOR, IS THE BIG BALL OF EVIDENCE IS ALMOST ENTIRELY --
AGAIN IF I SEGMENT IT -- HIS LAP TOP IN SEATTLE, HIS LAP
TOP IN RALEIGH. THOSE ARE ALL THINGS --
THE COURT: OH, THERE IS NO QUESTION ABOUT THE FACT
THAT HE CREATED THE SITUATION.
MR. PAINTER: AND THAT HE KNOWS -
THE COURT: BUT LET'S NOT JUST KEEP TALKING ABOUT
THAT.
MR. PAINTER: I KNOW.
THE COURT: WE HAVE TO GET TO A SOLUTION.
MR. PAINTER: AND, YOU KNOW, THE SOLUTION THAT WE
PROPOSE WOULD BE TO SET UP SOMETHING FOR HIM TO VIEW THAT
EVIDENCE.
THE COURT: ALL RIGHT. THIS IS WHAT YOU MUST DO.
(41)
YOU TELL ME HOW LONG IT WILL TAKE YOU TO DO IT BECAUSE YOU
COULDN'T AGREE WITH THE DEFENDANTS AS TO WHAT DAY OF THE
WEEK IT IS.
MR. PAINTER: WELL --
THE COURT: SO NOW WE ARE GOING TO DO IT
UNILATERALLY.
YOU ARE GOING TO GIVE ME A PROPOSED ORDER THAT
SOLVES ALL THESE PROBLEMS FROM THE STANDPOINT OF EVERYBODY.
MR. PAINTER: WE WILL TRY, YOUR HONOR.
THE COURT: AND THEY ARE NOT GOING TO HAVE ANY
OPPORTUNITY TO RESPOND TO THAT.
MR. PAINTER: WE WILL SUBMIT SOMETHING, YOUR HONOR.
THE COURT: THEY WILL ULTIMATELY HAVE A CHANCE TO
RESPOND TO IT BUT NOT IMMEDIATELY.
MR. PAINTER: I UNDERSTAND.
MR. PAINTER: IF I MAY CONFER AND ALSO LOOK AT MY
CALENDAR -- YOUR HONOR, FIRST, I UNDERSTOOD THE COURT TO -
ONE THING THAT THE GOVERNMENT WOULD ORDINARILY HAVE TO DO
WOULD BE TO RESPOND TO THE BAIL MOTION THAT WAS MADE.
DOES THE COURT -
THE COURT: YOU HAVE NO OBLIGATION TO RESPOND TO
THE BAIL MOTION.
I AM NOT GOING TO GIVE MR. MITNICK BAIL, AND THAT IS
AN ORDER, AND YOU DO A FORMAL ORDER, AND I WILL SIGN IT.
MR. PAINTER: YOUR HONOR, IN THAT CASE I BELIEVE WE
CAN SUBMIT AN ORDER FOR THE COURT IN APPROXIMATELY 2 WEEKS
IF THAT WOULD BE ACCEPTABLE.
THE COURT: THAT'S FINE. NOW -
MR. SHERMAN: YOUR HONOR, COULD I JUST HAVE 30
SECONDS OF YOUR TIME?
THE COURT: UH-HUH.
MR. PAINTER: YOUR HONOR, BEFORE THAT, IF WE SUBMIT
THAT ORDER, WOULD THE COURT ALSO THEN SET A HEARING DATE?
THE COURT: YES, INDEED. WE ARE GOING TO AGREE ON A
(43)
HEARING DATE NOW.
I HOPE YOU ALL REALIZE THAT WE ARE GOING TO TRIAL
JUST AS WE GO TO TRIAL IN OTHER CRIMINAL CASES.
MR. SHERMAN: YOUR HONOR, I AM GOING TO BE VERY
BRIEF.
I WOULD JUST LIKE TO SAY, FIRST OF ALL, I
CATEGORICALLY DISAGREE WITH WHAT MR. PAINTER SAID WAS THE
COMPOSITION OF THIS COMPUTER EVIDENCE.
THERE ARE ALSO COMPRESSED FILES, NON-READABLE FILES.
THE COURT MADE A REMARK WHICH CAUSED ME TO COME UP
HERE, BUT I MISUNDERSTAND THE COURT MANY TIMES, YOUR HONOR,
AND THE COURT SAID THAT -
THE COURT: MOST PEOPLE DON'T HAVE ANY TROUBLE WITH
THE CLARITY.
MR. SHERMAN: NO, NO. IT IS NOT THE CLARITY, IT IS
JUST THE MESSAGE SOMETIMES. I AM A LITTLE SLOW.
YOUR HONOR, WHEN YOU SAID THAT THE DEFENDANTS -
THAT MR. PAINTER NEED NOT RESPOND TO -
THE COURT: I HAVEN'T EVEN GOTTEN TO THE POINT OF
LETTING YOU RESPOND. I AM TRYING TO DO THE FIRST PART OF
IT.
MR. SHERMAN: YOUR HONOR, I TAKE IT THAT THE
SMARTEST THING I COULD DO WOULD BE TO SIT DOWN.
THE COURT: MR. SHERMAN, YOU HAVE TRIED CASES IN
(44)
FEDERAL COURT.
HAVE YOU EVER BEEN DENIED THE RIGHT TO RESPOND?
MR. SHERMAN: YOUR HONOR HAS NEVER DENIED ME
ANYTHING I WAS ENTITLED TO.
THE COURT: NO. I AM NOT GOING TO DO THAT.
WE HAVE TO TAKE THE FIRST STEP BECAUSE YOU ALL WON'T
DO IT COOPERATIVELY.
MR. SHERMAN: WELL, YOUR HONOR, JUST LET ME MAKE MY
REMARK THEN.
MY REMARK IS THAT MR. DEPAYNE DOES NOT KNOW HOW HE
AIDED AND ABETTED MR. MITNICK IN THESE CRIMES, AND I REALLY
WOULD LIKE TO, AND THAT IS WHAT I AM TRYING TO GET AT.
MR. RANDOLPH: MAY I MAKE A BRIEF COMMENT AS WELL,
YOUR HONOR?
THE COURT: MR. RANDOLPH, YOU REALLY HAVE TAKEN UP
A LARGE NUMBER OF MINUTES -
MR. RANDOLPH: I APPRECIATE THAT.
THE COURT: -- IN EXPLAINING YOUR POSITION IN
ADDITION TO WHAT YOU FILED, SO NOW WOULD YOU STICK TO BEING
BRIEF?
MR. RANDOLPH: I WILL, YOUR HONOR. TWO COMMENTS.
ONE, THE ONE PIECE OF INFORMATION THAT HAS NEVER
BEEN ANSWERED -- A QUESTION THAT HAS NEVER BEEN ANSWERED BY
THE GOVERNMENT EVEN THOUGH IT IS THEIR OBLIGATION IS
WHETHER SOMEONE IN THE GOVERNMENT KNOWS WHAT IS IN THE
(45)
DISCOVERY, AND THEREFORE, CAN PRESENT SOME KIND OF BREAK-
DOWN TO THE DEFENSE.
THE COURT: YOU MEAN YOU TALKED TO ME THE LENGTH OF
TIME IN WHICH I SAID ABSOLUTELY NOTHING -- I JUST LET YOU
GO ON AS LONG AS YOU WANTED -- AND NOW WE ARE ON A
DIFFERENT POINT?
WE ARE ON A DIFFERENT POINT NOW.
MR. RANDOLPH: WELL, I AM JUST RESPONDING TO WHAT
COUNSEL SAID, YOUR HONOR, THAT MR. PAINTER SAID THAT THE
GOVERNMENT KNOWS THAT 70 TO 80 PERCENT OF THIS INFORMATION
FALLS INTO SPECIFIC CATEGORIES. SINCE THEY KNOW THAT, YOUR
HONOR, I AM ASKING THE COURT TO INCLUDE IN ITS ORDER THAT
THEY DISCLOSE TO THE DEFENSE WHAT THE BREAKDOWN IS OF THE
INFORMATION SO WE ARE NOT SPINNING OUR WHEELS.
THE COURT: THIS IS A DIFFERENT POINT.
MR. RANDOLPH: I AM SORRY. I THOUGHT IT WAS THE
SAME POINT, YOUR HONOR.
THE COURT: IT ISN'T THE SAME POINT. IT IS A
DIFFERENT POINT. DID YOU MENTION THIS IN THE LONG PERIOD
OF TIME YOU WERE ADDRESSING THE COURT BEFORE?
MR. RANDOLPH: I DID, YOUR HONOR. I SPECIFICALLY
ASKED THE COURT TO INQUIRE OF THE GOVERNMENT IF SOMEONE IN
THE GOVERNMENT HAD ACTUALLY LOOKED AT THE COMPUTER
EVIDENCE.
FINALLY, YOUR HONOR, IN RESPONSE TO WHAT COUNSEL
(46)
SAID, THE ENCRYPTED SOFTWARE -- IT CANNOT -- I DON'T THINK
THAT - IT CANNOT BE ASSUMED THAT MY CLIENT KNOWS
EVERYTHING THAT -
THE COURT: WHAT DO YOU MEAN? IT IS ENCRYPTED.
THEY CAN'T TELL WHAT'S THERE.
MR. RANDOLPH: RIGHT.
THE COURT: BECAUSE THEY SAY HE KNOWS AND THEY
DON'T KNOW.
MR. RANDOLPH: I UNDERSTAND THAT, YOUR HONOR, BUT I
WOULD MAKE THE ANALOGY TO, FOR INSTANCE, IN CASES I HAVE
TRIED IN WHICH THERE ARE PAGES OF INCOMPREHENSIBLE NUMBERS
WHICH THE GOVERNMENT CHARACTERIZES AS PAYS AND OWES, THEY
DON'T KNOW WHAT IT IS --
THE COURT: THAT IS NOT A WORKABLE ANALOGY HERE AT
ALL. THIS IS ENCRYPTED MATERIAL.
RANDOLPH: BUT IF THE GOVERNMENT SEIZED IT FROM
MY CLIENT, YOUR HONOR, IT DOESN'T MAKE SENSE THAT THEY
CANNOT AT LEAST ALLOW THE DEFENSE TO HAVE ACCESS TO IT.
THE GOVERNMENT DOESN'T EVEN KNOW THAT IT IS EVIDENCE
IN THE CASE OR NOT.
THE COURT: WELL, I GUESS THEY ARE NOT GOING TO USE
IT BECAUSE THEY HAVE NOT ANY WAY OF TELLING YOU WHAT IS IN
THERE.
MR. RANDOLPH: THAT IS TRUE, BUT THEY ARE GOING THE
NEXT STEP, YOUR HONOR.
(47)
ASIDE FROM SAYING THEY ARE NOT GOING TO USE IT, THEY
ARE GOING THE SECOND STEP TO SAY, "AND WE ARE NOT GOING TO
GIVE THE DEFENSE ACCESS TO THAT."
THE COURT: WHAT?
IS IT EXCULPATORY?
MR. RANDOLPH: I DON'T KNOW, YOUR HONOR, BUT I
WOULD CERTAINLY LIKE TO SEE IT.
THE COURT: WELL WHO KNOWS IN THIS WORLD? IN THIS
WORLD OF PEOPLE WHO KNOWS WHETHER IT IS EXCULPATORY.
MR. RANDOLPH: WELL, YOUR HONOR
THE COURT: THEY CERTAINLY DON'T.
MR. RANDOLPH: THE GOVERNMENT AND THE COURT ARE
MAKING AN ASSUMPTION WHICH IS NOT CORRECT, AND THAT IS,
THAT MY CLIENT -- LET'S ASSUME FOR THE MOMENT THAT
EVERYTHING THAT THE GOVERNMENT SEIZED FROM MY CLIENT'S
COMPUTER WAS INFORMATION THAT HE PUT THERE.
ASSUMING THAT TO BE THE CASE WHICH THERE IS NO
EVIDENCE TO THAT FACT, BUT ASSUMING THAT TO BE THE CASE
THAT ALSO ASSUMES THAT MY CLIENT HAS MEMORIZED ABOUT 8 OR 9
GIGABITS INCLUDING COMPRESSED MATERIAL THAT WAS STORED IN
HIS VARIOUS COMPUTERS, AND THE ANSWER TO THAT IS THAT CAN'T
BE SO, YOUR HONOR. IN THE SCHEME OF HUMAN CONDITION NO ONE
CAN REMEMBER THAT MUCH INFORMATION.
THE COURT: SO THE PROPOSITION YOU ARE ADVANCING
HERE IS THAT HE SHOULD LOOK AT EVERYTHING THAT WAS SEIZED
(48)
BECAUSE HE CAN'T REMEMBER WHAT THAT WAS EVEN THOUGH IT IS
ENCRYPTED AND MAYBE SOME OF IT SOMEWHERE WILL BE
EXCULPATORY.
MR. RANDOLPH: YES.
THE COURT: DO I STATE THAT CORRECTLY?
MR. RANDOLPH: YES, YOU DO.
THE COURT: WELL, YOU WILL HAVE TO ADDRESS THAT IN
THE PROPOSED ORDER.
MR. RANDOLPH: ALL RIGHT. THANK YOU VERY MUCH, YOUR
HONOR.
MR. SHERMAN: YOUR HONOR, IS THE GOVERNMENT ALSO
GOING TO ADDRESS MY CLAIM AS TO THE UNDERCOVER AGENT WHO
INTERCEPTED CONVERSATIONS BETWEEN MITNICK AND DEPAYNE?
THE COURT: THEY ARE GOING TO GIVE THE COURT A
PROPOSED ORDER THAT TELLS THE COURT EVERYTHING THAT THEY
ARE PREPARED TO DO IN RESPONSE TO WHAT YOU ASKED FOR.
NOW THIS IS THEIR RECORD. THEY KNOW WHAT THEIR
OBLIGATION IS LEGALLY, AND WHAT YOU MUST DO IS IF YOU ARE
GOING TO MAKE A MISTAKE, MAKE THE MISTAKE ON THE SIDE OF
BEING GENEROUS ABOUT THIS, AND YOU WORK OUT HOW WE ARE
GOING TO DO IT.
NOW DOES THE COURT ACCEPT THE FACT THAT THIS IS SOME
MONSTROUSLY COMPLEX THING? IT ISN'T AT ALL; NOT AT ALL.
THE WAY IT IS BEING PRESENTED IS A DELIBERATE ATTEMPT TO
MAKE IT SOUND MURKY. IT IS NOT MURKY, NOT AT ALL, AND HOW
(49)
IN THE WORLD YOU COULD USE IN YOUR CASE IN CHIEF MATERIAL
THAT IS ENCRYPTED I DON'T KNOW.
MR. PAINTER: NOR DO WE.
THE COURT: NOW, I DON'T KNOW WHAT YOUR RESPONSE
WOULD BE IF HE FOUND SOMETHING THAT WAS ENCRYPTED AND HE
WOULDN'T TELL YOU ANYTHING ABOUT IT EVER SO YOU WOULD NEVER
BE ABLE TO ASK ANYBODY ABOUT IT.
I KNOW I AM MAKING MYSELF CLEAR ABOUT THAT. LET'S
JUST ASSUME THAT THAT EXCULPATORY MATERIAL WERE PRESENTED.
YOU HAVE NO WAY OF COUNTERING THAT BECAUSE YOU CAN'T GET
INTO THAT MATERIAL, SO HE IS GOING TO LET YOU GET INTO PART
OF IT BUT NOT THE REST OF IT.
MR. PAINTER: WE UNDERSTAND, YOUR HONOR.
THE COURT: WELL, I MEAN MAYBE THIS IS JUST TOO
COMMON SENSICAL THE WAY I AM PUTTING IT TO YOU, BUT IF I
UNDERSTAND IT CORRECTLY, HE GETS TO USE THE ENCRYPTED
MATERIAL BECAUSE PRESUMABLY HE KNOWS HOW TO USE IT, BUT HE
IS NOT GOING TO TELL YOU ANYTHING THAT WOULD PERMIT YOU TO
USE IT.
MR. PAINTER: I THINK THAT'S HIS POSITION, YOUR
HONOR, AND -
THE COURT: WELL IS IT?
THAT MAKES GREAT SENSE TO YOU, DOES IT?
MR. RANDOLPH: WELL, YOUR HONOR -
THE COURT: LET ME START THIS WAY.
(50)
MR. RANDOLPH: ALL RIGHT.
THE COURT: THEY ARE NOT ABLE TO USE IT IN THEIR
CASE BECAUSE IT IS ENCRYPTED.
NOW THE PERSON WHO PRESUMABLY ENCRYPTED IT AND KNOWS
HOW TO USE IT IS THE DEFENDANT.
THE DEFENDANT SAYS, "BUT I CAN'T REMEMBER EXACTLY
WHAT HAPPENED HERE, AND SO THEREFORE, I AM GOING TO LOOK AT
EVERYTHING," EVEN THOUGH THEY ARE NOT GOING TO USE IT IN
THEIR CASE.
NOW THEN WE COME -- HE LOOKS AT IT AND THEN WE GET
TO SOME PART OF THE CASE AND YOU ARE USING IT DEFENSIVELY.
WHAT ARE THEY SUPPOSED TO DO?
MR. RANDOLPH: WELL -
THE COURT: THEY ARE NOT SUPPOSED TO KNOW ANYTHING
ABOUT IT EVER; IS THAT RIGHT?
MR. RANDOLPH: I THINK THE ANSWER TO THAT, YOUR
HONOR, AGAIN I DO THINK THIS IS THE UNIQUE ASPECT OF THIS
CASE -
THE COURT: THERE IS NOTHING UNIQUE ABOUT THAT. THAT
IS AN UNWORKABLE PROPOSITION.
MR. RANDOLPH: WELL, I WOULD ANALOGIZE THAT
SITUATION TO, FOR EXAMPLE, BECAUSE THE ENCRYPTED
INFORMATION, YOUR HONOR, I DO NOT BELIEVE IS ONE ITEM. IT
IS A NUMBER OF ITEMS SEPARATE AND DISTINCT.
THE COURT: I CERTAINLY WOULD WAGER IT IS.
(51)
MR. RANDOLPH: THE ONLY COMMON THREAD THAT THEY
HAVE BETWEEN THEM IS THEY ARE ENCRYPTED AND THEY NEED A
PASS WORD.
IF THAT BE THE CASE, THEN IF THE DEFENSE FOUND ONE
ITEM SAY -- LET'S SAY ON THERE IS A CONVERSATION OR LET'S
SAY A MEMORANDUM FROM ONE OF THE VICTIMS SAYING SIMILAR TO
THE DEPAYNE MEMO, "WE DO NOT BELIEVE MR. MITNICK WAS
INVOLVED IN THE HACKING OF A PARTICULAR SERVER, FOR
EXAMPLE, ON SUCH AND SUCH A DATE."
THAT DOCUMENT -- IF THE DEFENSE WANTED TO PRESENT
THAT DOCUMENT DURING ITS CASE IN CHIEF I THINK IF THAT WAS
A 4 PAGE LETTER, FOR EXAMPLE, THAT THE GOVERNMENT WOULD
CERTAINLY BE ENTITLED TO UTILIZE ANY OTHER PORTIONS OF THAT
DOCUMENT, BUT DOES THAT MEAN THAT, THEREFORE, THE
GOVERNMENT -
THE COURT: BUT THEY CAN'T LOOK AT ANY OTHER
DOCUMENT THAT IS ENCRYPTED THAT MIGHT CONTRADICT THAT.
MR. RANDOLPH: WELL -
THE COURT: IS THAT RIGHT?
MR. RANDOLPH: WELL, IT PUTS -- IF THEY WERE ABLE
TO IT WOULD PUT THE DEFENSE IN A POSITION OF DOING THE
GOVERNMENT'S -- PREPARING THE GOVERNMENT'S CASE FOR THEM.
THE COURT: OH. WELL, YOU SEE WHERE WE ARE. YOU ARE
GOING TO HAVE TO TAKE THAT INTO ACCOUNT IN PREPARING THIS.
MR. PAINTER: WE WILL, YOUR HONOR, AND ONE OF OUR
(52)
CONCERNS IS OBVIOUSLY SECURITY CONCERNS OF WHAT ELSE MIGHT
BE IN THERE THAT HASN'T BEEN ADDRESSED.
WE WILL ADDRESS IT.
THE COURT: I AM VERY CONCERNED ABOUT SECURITY
CONCERNS. I HAVE NO IDEA WHAT THAT IS. I ALSO KNOW THAT
IN TERMS OF FAIRNESS IF YOU ARE GOING TO SAY YOU CAN HAVE
THE WHOLE UNIVERSE OF THIS AND IF YOU FIND ANYTHING, YOU,
DEFENDANT, THAT WOULD BE HELPFUL TO YOU YOU CAN USE IT BUT
THE GOVERNMENT CAN NEVER KNOW ANYTHING ABOUT THAT UNIVERSE
OTHER THAN AS MR. RANDOLPH SAYS THE ADDITIONAL PAGES OF
THAT ONE DOCUMENT, NOW THAT IS ABSURD.
MR. PAINTER: THAT WOULD BE OUR POSITION, YOUR
HONOR.
THE COURT: THAT IS ABSURD.
MR. PAINTER: WE AGREE, YOUR HONOR.
THE COURT: SO I AM NOT -- YOU KNOW, EVERYBODY HAS
GOT TO PROTECT THEIR POSITION HERE, AND I AM NOT CRITICAL
OF ANYBODY WHO DOES THAT. CERTAINLY THAT IS COUNSEL'S
OBLIGATION IF YOU REPRESENT THE DEFENDANT, BUT YOU REALLY
HAVE TO BE REALISTIC ABOUT WHAT WE ARE DOING.
WE ARE JUST GOING TO TRY THE CASE, AND WE ARE GOING
TO FOLLOW THE USUAL RULES FOR TRYING A CASE.
NOW THEY ARE GOING TO MAKE A PROPOSAL AND WHEN YOU
COME IN HERE ON THE DATE SET FOR THE HEARING WHICH WE ARE
NOW GOING TO DO, YOU MAKE WHATEVER COMMENTS YOU HAVE ABOUT
(53)
IT AND THEN I WILL GIVE YOU SOME TIME TO OFFER A COUNTER.
WE ALL KNOW WHAT IT IS YOU WANT, BUT LET US TRY TO
BE REALISTIC ABOUT WHAT WE ARE ASKING FOR.
MR. PAINTER: YOUR HONOR, THE ONLY ADDITIONAL ITEM
IS RIGHT NOW THE TRIAL DATE IS SET FOR APRIL 21ST.
THE COURT: WELL, WE HAVE TO ACCOMODATE THIS
BECAUSE THEY HAVEN'T LOOKED AT THE MATERIAL.
MR. PAINTER: I UNDERSTAND. I JUST WANT TO MAKE
SURE THAT THAT IS AT LEAST FOR NOW VACATED.
THE COURT: NO. IT HAS GOT TO GO TO A DATE CERTAIN.
MR. PAINTER: I UNDERSTAND, YOUR HONOR.
THE COURT: DEPENDING ON WHAT YOU NOW DECIDE ABOUT
THE DATE FOR SUBMITTING -- THESE MOTIONS HAVE NOT BEEN
DECIDED YET. THEY ARE STILL PENDING SO WE ARE NOT IN ANY
DANGER ABOUT THE TRIAL DATE.
MR. PAINTER: RIGHT.
THE COURT: SO YOU SUGGEST TO ME WHAT YOU WANT TO DO.
MR. PAINTER: WE WILL FILE A PROPOSED ORDER IN TWO
WEEKS, YOUR HONOR, AND THE HEARING CAN BE HELD AT ANY POINT
AFTER THAT.
THE COURT: WELL, YOU HAVE TO GIVE THEM A WEEK TO
LOOK AT IT.
MR. PAINTER: THAT'S FINE, YOUR HONOR. THEN I
DON'T HAVE A CALENDAR IN FRONT OF ME, YOUR HONOR, BUT --
THE COURT: NOW YOU NOT REQUIRED -- NOT ONLY ARE
(54)
YOU NOT REQUIRED, YOU ARE NOT ALLOWED TO FILE ANYTHING IN
RESPONSE TO THIS.
WE ARE ATTEMPTING TO WORK OUT A PROBLEM. WE ARE
GOING TO WORK OUT THE PROBLEM, AND YOU WILL HAVE PLENTY OF
TIME TO SAY WHATEVER YOU WANT TO SAY IN WRITING. I AM NOT
PUTTING YOU UNDER ANY PRESSURE, BUT WE ARE DEFINITELY GOING
TO GO STEP-BY-STEP TO TRIAL.
MR. PAINTER: IF WE COULD FILE OUR PROPOSITION I
GUESS TWO WEEKS FROM TODAY THAT WILL GIVE US THE WEEKEND
BEFORE.
THE COURT: WHAT DAY IS THAT?
THE CLERK: APRIL 13TH, YOUR HONOR, IT IS A MONDAY.
THE COURT: ALL RIGHT. YOU FILE IT AND THEN 10 DAYS
LATER SHALL WE HAVE A HEARING, AND YOU WILL MAKE -- THEY
WILL MAKE WHATEVER COMMENTS THEY HAVE TO MAKE ABOUT IT, AND
THEN I WILL GIVE THEM SOME TIME TO -- AND YOU CAN MAKE
WHATEVER COMMENTS YOU WANT TO MAKE ABOUT IT, AND THEN I
WILL GIVE THEM SOME TIME TO COUNTER THAT ORDER WITH WHAT
THEY SUGGEST SHOULD BE DONE, BUT YOUR ORDER HAS TO PROVIDE
FOR MR. MITNICK TO HAVE ACCESS TO THE MATERIAL.
MR. PAINTER: AND WE WILL MAKE A PROPOSAL IN THAT
ORDER, YOUR HONOR.
THE COURT: WELL, THE PROPOSAL SHOULD DEFINITELY BE
ONE THAT DOES NOT INCLUDE THE M.D.C. BEING USED.
MR. PAINTER: AND OUR PROPOSAL WOULD NOT, YOUR
(55)
HONOR.
THE COURT: ALL RIGHT. SO NOW LET'S SEE IF WE CAN
WORK OUT THESE DATES.
MR. SHERMAN: DO YOU WANT A MONDAY, YOUR HONOR?
THE COURT: WELL, IT DOESN'T HAVE TO BE A MONDAY.
MR. SHERMAN: IT MAKES NO DIFFERENCE TO ME.
THE COURT: ALL RIGHT.
MR. SHERMAN: WHATEVER DATE.
THE COURT: YOU DO IT, MR. FLORES.
THE CLERK: YES, YOUR HONOR. THE GOVERNMENT TO FILE
THEIR PROPOSED PLAN BY APRIL 13TH. IT IS A MONDAY AND THEN
WE WILL HEAR FROM -- THE HEARING COULD BE ON THURSDAY, THE
23RD OR THE 24TH AT 1:00 O'CLOCK.
MR. PAINTER: YOUR HONOR, THAT THURSDAY AND FRIDAY
I THINK I AM GOING TO BE OUT OF TOWN.
THE COURT: WELL THEN, THE FOLLOWING MONDAY.
MR. PAINTER: OR WE COULD MAKE IT THAT WEDNESDAY.
THE COURT: ALL RIGHT; THE FOLLOWING MONDAY.
THE CLERK: APRIL 27TH, YOUR HONOR, AT 1:30.
THE COURT: ALL RIGHT. NOW, YOU STIPULATE WITH THAT
PLAN IN MIND, THAT YOU START OUT, YOU MAKE THE PROPOSAL,
THEY COMMENT ON IT AT THAT HEARING ON THE 27TH AND THERE
WOULD HAVE TO BE SOME TIME AFTER THAT IN WHICH ALL THE
DETAILS OF THIS WOULD BE WORKED OUT AND THEY WOULD HAVE A
CHANCE TO LOOK AT THIS AND THEN YOU STIPULATE WHEN THEY
(56)
WOULD FILE ANYTHING IN RESPONSE TO THAT.
I AM NOT SAYING ANYTHING IN WRITING BECAUSE I AM
GOING TO FIRST OF ALL HEAR WHAT YOU HAVE GOT TO SAY ORALLY
AND THEN YOU STIPULATE TO WHAT WOULD BE A CONTINUED TRIAL
DATE.
MR. PAINTER: THAT'S FINE, YOUR HONOR.
THE COURT: ALL RIGHT. NOW SAY THE DATES THAT WE'VE
SETTLED.
THE CLERK: THE GOVERNMENT TO FILE THEIR PROPOSED
PLAN, YOUR HONOR, BY APRIL 13TH. FURTHER HEARING ON THE
MOTIONS THEN WILL BE CONTINUED TO APRIL 27TH AT 1:30 AND
THE PRESENT JURY TRIAL OF APRIL 21ST WILL BE STIPULATED
CONTINUED BY COUNSEL.
THE COURT: YES. YOU HAVE TO GET THAT STIPULATION
IN TO THE COURT BY FRIDAY.
MR. PAINTER: WE WILL, YOUR HONOR.
THE COURT: IT HAS TO BE SIGNED BY THE DEFENDANTS.
NOW ONE FINAL THING. JUST TALKING ABOUT THIS WILL
NOT GET US ANY PLACE. WE HAVE TO RESOLVE IT, AND IT HAS TO
BE RESOLVED FAIRLY ON BOTH SIDES, AND THEN WE WILL GO ON TO
RESOLVE WHATEVER THE PROBLEMS ARE THAT APPEAR AFTER WE HAVE
STARTED OUT, AND THEN WE WILL WORK OUT WHAT WE ARE GOING TO
DO IN PREPARATION FOR TRIAL.
AT THAT POINT IT MAY BE THAT YOU WILL HAVE TO GIVE
US A TENTATIVE EXHIBIT LIST.
(57)
THANK YOU.
MR. SHERMAN: THANK YOU, YOUR HONOR.
MR. RANDOLPH: THANK YOU, YOUR HONOR.