THE COURT: No, we've got a straightforward legal
question. Now, whatever you want to do about this, Mr. Painter,
you've said everything you can say. You seized material that
you'd like, that the government would very much like to look at.
MR. PAINTER: Correct, Your Honor.
THE COURT: And know what's in it because we think
it shows further evidence of Mr. Mitnick's criminal conduct.
MR. PAINTER: Correct, Your Honor.
THE COURT: He won't let you know what's in there,
but he wants it back. And it's as simple as that.
MR. PAINTER: That's correct, Your Honor.
THE COURT: That's all that's involved here. And
it's not part of your case.
MR. PAINTER: Correct.
THE COURT: It's like demanding your sweater or
your coat back.
MR. PAINTER: Well, except for --
THE COURT: Except that he says that in there may
be something that will help me in the defense of my case.
MR. PAINTER: Well, and you know, the sweater or
coat, I'd put it this way: It's like asking for your coat back,
and for all we know, the coat could have a pistol inside of it.
THE COURT: That's quite true.
MR. PAINTER: And we don't know.
(13)
THE COURT: That's quite true. Or I want my box
back and it's got more narcotics in it.
MR. PAINTER: Correct. We don't know.
THE COURT: In addition to what's being charged in
this case against him. Now, I can't do anything about the fact
that the rule does not help you much with that.
MR. PAINTER: Well, Your Honor, I think it does. I
mean, I think the rule has never been applied to this. But here
it's like having a safe where it could have -- it goes beyond
just there could be further evidence of criminal conduct that
would relate to this case. There could be things in there that
could cause other problems --
THE COURT: Of course.
MR. PAINTER: -- that we don't know about.
THE COURT: And Mr. Mitnick has keys in his pocket.
MR. PAINTER: That's correct, Your Honor.
THE COURT: As long as he has the keys in his pocket,
there's nothing this court is going to do about it.
MR. RANDOLPH: Well, what could be there, what the
evidence could contain, the encryptive material I should say --
THE COURT: No. Maybe the government will let you
have a copy of it if you tell the government how to read it.
MR. RANDOLPH: Well, then we have a clash of my
client's right against self-incrimination, Your Honor.
THE COURT: Well, you know, we often have clashes
(14)
between rules and statutes and all of that. That's our
business.
MR. RANDOLPH: I understand.
THE COURT: And I am telling you in this particular
instance I'm not going to order them to give you a copy of that.
MR. RANDOLPH: Well, may I just take a moment, Your
Honor. We do have clashes of constitutional rights, I agree.
But -- and then when you have that situation, I think what
courts ordinarily do is weigh whose position is the strongest.
THE COURT: I don't know what they ordinarily do in
a situation like this. I am telling you that this court is not
going to order the encryptive material to be given to your
client by the government unless your client has decided that it
can be other than encryptive. Now your client has control of
that.
MR. RANDOLPH: Well, given the government's
articulation, Your Honor, that the reason they don't want to
turn it over to us is because they don't know what it is, but
they're concerned that it may contain certain information versus
my client's right to discovery under Rule 16 and his right not
to have to incriminate himself by giving the government any help
in getting access to materials that they could use against
him --
THE COURT: But those materials are not part of
this case.
(15)
MR. RANDOLPH: Well, the government has alluded to
the fact, which we pointed out in our pleadings, that they do
intend to use the headings of the encryptive material for a
purpose in their case.
THE COURT: Well, maybe they'll have to rethink
that.
MR. PAINTER: Your Honor, I can state with respect
to that, we would use the headings of the files that we have
decrypted that have material in them and they have specifically
made, but we're not going to use --
THE COURT: If they're decryptive, you can give him
a copy of what's decryptive.
MR. PAINTER: And we plan to, Your Honor.
MR. RANDOLPH: But that puts aside the fact, Your
Honor, that the defense believes that there is Brady material
and otherwise exculpatory material in the files.
THE COURT: Just the mere fact that you say it
doesn't convince me of anything.
MR. RANDOLPH: Well, as I was saying, Your Honor, I
would be prepared to file in-camera a proffer of what
specifically we believe is contained in the encryptive files. I
didn't want to be -- it seemed to me I ought not to do that
until the government has been put to the test.
THE COURT: As long as the files are encryptive,
the court isn't going to order the government to give your
(16)
client a copy of them.
MR. RANDOLPH: Well, perhaps I'm suggesting, Your
Honor, that maybe there's another way which can protect the
interest of both my client and the concerns of the government.
THE COURT: That isn't going to be to anybody's interest.
MR. RANDOLPH: I'm sorry?
THE COURT: What you're suggesting to me is the
same thing you said before. Because I wouldn't have any way of
checking what is in those encryptive files. They're not going
to be other than encryptive just because you give me a
declaration.
MR. RANDOLPH: But let me propose the following,
Your Honor.
THE COURT: Well, are you suggesting to the court
that Mr. Mitnick tell the court how to get into those files then
have the court read them?
MR. RANDOLPH: No. When I was talking about a
proffer, I was suggesting presenting a proffer --
THE COURT: I know, you were going to present, you
know, whatever you think would be good from your standpoint.
MR. RANDOLPH: Yes.
THE COURT: Well, and then how would I ever check
that?
MR. RANDOLPH: Well, I could think of another way
(17)
to handle this, Your Honor.
If the government gives us the discovery, we will
with a protective order against non-disclosure, we will then
decrypt it, we will then present to the court those portions
which we -- not just a proffer anymore, but specific items in
the decrypted materials now which we believe are exculpatory or
the defense intends to use in this case.
THE COURT: That's right. You have made that offer
before. We're not getting any place here. You said that when
you glean from the encryptive material that which you want, you
will let the government know what those things are, but you
won't let the government know how to decrypt the material in
general and you will not let them look at the other parts of the
material.
MR. RANDOLPH: But my proposal, given a protective
order, and that we will basically turn them in to be destroyed
or whatever at the conclusion of the proceedings. With a
protective order, what's the harm that the government is trying
to avoid?
THE COURT: I told you, you are not going to be
permitted, for the ninth time, to argue this case. We are
talking about practically what is to be done. And as long as
your client knows what's in those files and won't let anybody
else get into them, your client is not going to get a copy of
them.
(18)
MR. RANDOLPH: I was trying to identify in a
compromise way, Your Honor.
THE COURT: But you already did that several months
ago. You suggested and I rejected and so has the government
rejected the idea that your client should take these seized
encryptive files, use the knowledge he has to decrypt them, pick
out the tidbits that he thinks would be helpful to him in a case
not based on those materials, and then tell the government as to
those tidbits what they say and then that's all they can look
at.
MR. RANDOLPH: But there's no harm to the
government with that process. The government's concerns as
articulated today are completely alleviated.
THE COURT: I can't do more than I have done. And
what I have done is I have said -- now I'm going to say it for
the tenth time -- as long as those materials are encrypted and
your client will not let anyone know at all what they say, your
client is not going to get a copy of them.
MR. RANDOLPH: Well, we will let people know. We
just don't want to let the government know because it violates
his Fifth Amendment privilege.
THE COURT: You mean you're going to tell the
court, you're going to decrypt all of those files and tell the
court what they say and then the court's not to tell the
government?
(19)
MR. RANDOLPH: I think that's the appropriate way
to do it.
THE COURT: Really.
MR. RANDOLPH: That would protect his right against
self-incrimination, yet also protect his right to discovery and
to exculpatory material.
THE COURT: Really. And the court can decide if
there's evidence in there of more crimes, right?
MR. RANDOLPH: Well, no. First, I don't think it
should be this court because you're the presiding justice over
this case. But to another, to someone designated by the court
could maintain those files, they can't be disclosed to the
government.
THE COURT: Well, let me tell you something,
Mr. Randolph. I'm not going to do it. A special master is not
going to do it. And as long as nothing that's in those files is
going to be used as a basis of this prosecution, Mr. Mitnick
cannot have them -- cannot have a copy of them. He knows very
well what's in those files.
MR. RANDOLPH: I can represent, Your Honor, that my
client unequivocally does not know each and every item that's in
those files.
THE COURT: He knows what's in those files.
MR. RANDOLPH: There's a --
THE COURT: I'm not forcing him to do anything at
(20)
all. He knows what's in those files. They are in effect usable
to him and not to anybody else. And that's just the way it's
going to have to remain.
MR. RANDOLPH: Your Honor, there's not even any
showing that the information contained in those files, showing
by the government, was placed there by my client. So I think
it's --
THE COURT: No one knows what's in those files.
And as a matter of -- except Mr. Mitnick. And as a matter of
fact, that's why the criminal allegations in this case are not
based on those encryptive materials.
MR. RANDOLPH: I understand, Your Honor. But I'm
just taking issue with one point the court says, that my client
knows what's in those files.
THE COURT: He does.
MR. RANDOLPH: But there's no showing that he knows
how the information got into those files and therefore there's
no showing --
THE COURT: Oh, so the encryptive material, where
the encryptive material contains things that were inadvertently
placed in those files.
MR. RANDOLPH: The answer is --
THE COURT: Or by someone who was trying to
implicate him?
MR. RANDOLPH: The answer is I have no suspicion
(21)
that someone was trying to implicate him. But with respect to
the last point, Your Honor, we're not talking about --
THE COURT: You know, I can only tell you,
Mr. Randolph, this is clever. This is very clever. But beyond
that, I'm not going to go.
MR. RANDOLPH: Well, let me ask the following, Your
Honor. It wasn't clear to defense counsel how these proceedings
were going to work in terms of the omnibus discovery order,
whether each and every separate issue of our access to the files
both from the motions -- from the items brought up by
Mr. Sherman in his motions or just what the government has said
would be determinatively decided by this order. I would like an
opportunity with respect to the encrypted files to address that
in a separate pleading.
THE COURT: You already have. We have now had
three different hearings where we talked about it. I have let
you file written material. I am now on volume, I think five,
which is all on the subject of discovery. We have aired it over
and over and over again and the ruling is not going to change on
the encryptive material.
MR. RANDOLPH: I understand.
THE COURT: We are taking this step by step.
MR. RANDOLPH: I understand.
THE COURT: All right. Let's go on to the next
part.
(22)
MR. RANDOLPH: All right.
THE COURT: Now, if your client changes his mind,
you can let me know.
MR. RANDOLPH: The second point, Your Honor, is the
I guess what we should call the proprietary, the source code
file, proprietary business information. The government seeks to
not disclose a copy of that to -- to not give a copy to the
defense, but rather wants to require the defense to come to the
government to review these materials.
In reviewing the papers that I filed that are in
question today, I don't know that I adequately described to Your
Honor why it is that the defense needs its own copy of these
materials and why we need a copy at our office subject to any
protective order that the court deems appropriate which will be
signed by not only all defense staff, but any experts that
review these files.
I tried to set forth in some respects on Page 8 of
my pleadings why it's important for us to have a copy without
time restrictions, without security restrictions placed on us by
the government to look at these materials. But there's a reason
I didn't articulate which I'd like to now.
The discovery in this case in supporting the
allegations of wire fraud consists of property that my client
allegedly took which is intangible intellectual property. And
there is case law which will be argued I'm sure by both parties
(23)
prior to trial in this matter which describes the type of
property falling in this category that is covered by the wire
fraud statute.
Not all types of property, when it falls in the
category of intangible intellectual property, constitutes wire
fraud when it's compromised. There's only specific categories.
And the category that is of interest and applicable here is
confidential proprietary business information.
The government is going to have to make a showing
that each and every item that they claim was compromised by my
client falls in that category in order to be legally covered by
the wire fraud statute.
In order to fall into the designation of
confidential proprietary business information is not something
that even I, as a defense counsel, can look at a source code and
determine whether it falls in that category. There is a lot of
factors that go into that. Not unlike in trademark litigation.
THE COURT: Now, you'll forgive me, but I want to
get right to the heart of this. What you're telling me is that
you have to have a copy of this in your office available to
people, whoever they may be, freely available to them so you can
decide if this really is confidential information?
MR. RANDOLPH: Confidential proprietary, yes.
THE COURT: What is it that you do in your office
that would permit you to reach that conclusion that is different
(24)
than what you would do in the government's office?
MR. RANDOLPH: Well, there's -- it's just going to
be in my -- from what I have been told by experts that I've
already talked to, it is going to, someone's going to have to
analyze each and every item that's claimed to be compromised.
THE COURT: I agree with you.
MR. RANDOLPH: It may be -- not for me because I
don't have the expertise to analyze this, what a source code is.
It's in computer language.
THE COURT: Maybe you're going to have an expert
look at it.
MR. RANDOLPH: Yes, Your Honor.
THE COURT: I don't know what you mean exactly
about deciding if it really is confidential proprietary
information. You go out and hire an expert and he gives you an
opinion that it's not?
MR. RANDOLPH: He studies it and then he figures
out what it is, if it's source code. And if it's in software,
if it's in non-source code format, then he will just look at it.
THE COURT: And he can't do that if he goes over to
the government's office to look at it?
MR. RANDOLPH: I'm going to assume that it is
physically possible for him to look at the same materials in the
government's office as mine.
THE COURT: Of course it is. Of course it is.
(25)
MR. RANDOLPH: But the question is, we're jumping
through a loot of hoops which would --
THE COURT: All you mean is that you have to have
somebody look at all this, at the -- you're going to ask me to
sign an order for an expert that's going to be for a lot of
money so that expert can sit somewhere and look at every single
thing that is in these files.
MR. RANDOLPH: But at the same --
THE COURT: Wait a minute.
MR. RANDOLPH: I'm sorry.
THE COURT: And come to a conclusion which is that
none of it is confidential or proprietary and then he'll testify
to that.
Now, the only question you're putting to me is
where does he have to sit when he's reaching that conclusion
because that's the conclusion that you're going to ask me to
have the expert paid for.
MR. RANDOLPH: All right.
THE COURT: It's not magic, Mr. Randolph. It's
plain ordinary work just like any other expert does. And the
only question you're putting to me is where is he going to do
it.
MR. RANDOLPH: Well, I think that's true, Your
Honor, although not just the expert, but to the extent that the
expert has to talk to counsel at the same time or showing me on
(26)
the screen so I understand what his opinion is about a
particular item. And we're not talking about one or two, we're
talking about a great number of items. And that's -- but I
think the court has correctly articulated, obviously the process
we have to use experts in a case like this.
THE COURT: The point you're making is you want to
do it in your own office.
MR. RANDOLPH: Well, yes, and there's a number of
reasons for that. First and foremost, the government has not
and we don't believe they can articulate a reason why the
proprietary software, which is what we're talking about, a copy
of that can't be given to defense counsel with a protective
order. It's done all the time.
THE COURT: Let's stop just a moment.
MR. PAINTER: Well, Your Honor, we've gone through
this before. Our concern -- the protective order is a
relatively recent suggestion by defense counsel. Our concern --
THE COURT: And there's nothing wrong with that,
you do that all the time.
MR. PAINTER: It's done in several cases, Your
Honor. However, in this case we have special concerns. The
special concerns are this is the material -- first of all, the
victims have been harmed significantly by the fact that this
proprietary development source code was stolen from them and
they're quite worried about it being leaked to other parties
(27)
even now.
Second, Your Honor, that in this case we have a
defendant and a defendant who the government is quite concerned
will leak them.
THE COURT: I'm not talking about Mr. Mitnick, but
about their expert.
MR. PAINTER: I understand, Your Honor. But Mr.
Mitnick would necessarily at some point look at this as well and
that's our concern.
And our third concern is that, you know, there's
already in this case there are several web sites out there
devoted to the case. There are things about this case posted
all the time. I don't-- not that I distrust Mr. Randolph or
Mr. Sherman, I just believe that there is a very big risk that
this stuff will get out.
THE COURT: Well, I think he's going to have to do
that. I think for the benefit of their expert, you have to
enter into a protective order with him in his office.
MR. PAINTER: Well, Your Honor, I will note a
couple of things with respect to that. First of all, we
disagree. We don't need to get into this now, but we disagree
with their characterization of what we need to show for the mail
fraud statute.
THE COURT: Why worry about that now?
(28)
MR. PAINTER: We're not, Your Honor.
The second thing, Your Honor, is that if we do a
protective order, that does change some of our proposals that
we're willing to do. We can talk about the other categories
first --
THE COURT: That's right.
MR. PAINTER: -- and then we'll talk about it.
THE COURT: It does and I certainly think that it
depends on what they propose to you in terms of a protective
order.
MR. PAINTER: If that protective order covers
certain things, other things in our proposal will change, and I
can discuss those after we've gone through the other items, Your
Honor.
THE COURT: All right. Next.
MR. RANDOLPH: All right. The government has
agreed to give us the uncontested materials. They agreed on
April 27th. I'm not sure, maybe they're still in the process of
copying them, so I would like, I'd ask the court to in its final
order address when those materials will be turned over.
What we haven't been talking about so far, Your
Honor, is my client's review of the materials. And I think
we've covered all three categories of how I'm going to review
them in terms of the encryptive and proprietary and the
non-disputed materials up to now.
(29)
MR. PAINTER: Your Honor, if I may, I think there
are two categories that we haven't touched on. Maybe we should
just touch on them briefly. The access codes, the passwords and
other credit cards, that kind of information, and hacker tools I
think. We should at least discuss those before we move on to
the next.
THE COURT: Go on.
MR. PAINTER: Our feeling with respect to the
access codes, the passwords, credit card numbers, et cetera,
that is contraband. That is stuff that we would not want to
produce to them for that reason. The hacker tools, although
counsel's made the argument the hacker tools are available in
different places throughout the net, that may or may not be true
to various extents. There may be different iterations of these
things. However, Your Honor --
THE COURT: Well, what are you going to do with
respect to those items when you're proving your case?
MR. PAINTER: Well, Your Honor, it depends on what
the particular thing is. The access codes and the stolen credit
cards, et cetera, the passwords, those are charged in various
counts or it will show that they were taken from a particular
entity.
THE COURT: That's what I'm asking.
MR. PAINTER: That's what those would be used for.
The hacker tools to various extents would be used to show if
(30)
those were used at a particular site where the stuff was stolen
to identify who did the stealing.
THE COURT: Anything you're using you have to show
them.
MR. PAINTER: Well, Your Honor, we will show this
all to them. We have committed to allowing them to view all of
this information in an offsite discovery set-up.
THE COURT: Do you view those things differently
than the other materials?
MR. PAINTER: Than the materials that we made
available or the proprietary materials?
THE COURT: The materials that you are going to
make available pursuant to this protective order.
MR. PAINTER: Your Honor, I think if we did a
protective order for all the things we have concerns which I
voiced with respect to the proprietary software, it's the same
concerns with respect to these things. However, if there is a
protective order, then if I may step back at this point and
address how that changes some of the other things in our
proposal.
THE COURT: No. You can work up another order.
MR. PAINTER: Okay, Your Honor.
MR. RANDOLPH: Then moving on from that, Your
Honor, I guess the next thing on the table is how my client is
going to have access to these materials. I now understand how
(31)
my office and the experts are going to. But with respect to my
client, the government has proposed that he review these
materials in an offsite discovery room. We in our order have
suggested that the better place and the less -- the more cost
efficient is to allow us to view it in the attorney conference
room at the Metropolitan Detention Center.
THE COURT: Not at all.
MR. RANDOLPH: All right. Just parenthetically if
I may point out, Your Honor, there is a provision in 18 U.S.C.
Section 3142(i)(4) that does allow in a circumstance just like
this for transport of the defendant who is detained to counsel's
office for review of discovery materials.
THE COURT: To your office?
MR. RANDOLPH: That's --
THE COURT: Not at all.
MR. RANDOLPH: All right, Your Honor.
Then that only leaves the offsite discovery room
which has been proposed by the government. I assume that's then
what the court is going to do.
THE COURT: Yes.
MR. PAINTER: If I may speak to that briefly, Your
Honor.
THE COURT: What?
MR. PAINTER: With respect to that offsite room.
Particularly now that the defense with a protective order would
(32)
have access to all of the material, now the defense is in a
position to identify what they think is important and make
copies and show it to defendant Mitnick. Our one concern with
the offsite discovery, we can maintain a room for them to come
over. We can transport them over. They will now have the
material with them and they will have the computers, it will
change in that respect. But I wanted to impress upon the court
that it's my guess that defendant Mitnick would want to be there
on a daily basis. I talked --
THE COURT: You mean in the offsite room?
MR. PAINTER: Correct.
THE COURT: Not at all, he's not going to be.
MR. PAINTER: And against this backdrop, that now
that defense counsel has access to this evidence and has
employed experts, there is no legal right for the defendant to
have access to the electronic material at all, yet we can set up
a room for them to have access to. I've talked to the case
agent and I've talked to people at MDC. The case agent would
have to take a lot of precautions to make sure that he's secure.
The case agent --
THE COURT: He's not going -- Mr. Mitnick is not
going to do it at the MDC.
MR. PAINTER: I know, Your Honor. That's why it
still requires the case agent to transport him from MDC to the
offsite, which we believe will be in the federal building. But
(33)
because of the cost and expense and also the time involved,
that's why, especially when he's not entitled to have access
with counsel at this point, that we wanted to limit it to
something that's very reasonable and that's what we propose in
the order.
THE COURT: Well, it isn't reasonable in its
present condition because you can't have him going three times a
month.
MR. PAINTER: Well, Your Honor, one thing that they
can do now is if they find a particular file is relevant, they
can simply print it out. They can bring the printout to MDC
now. So that changes the calculus quite a bit.
THE COURT: That's true, but he still should have
access to it on a more reasonable basis.
MR. PAINTER: Well, Your Honor, we would request
that whatever basis that is, it's --
THE COURT: Well, you're now going to talk it over
one more time. Go on.
MR. RANDOLPH: Just to read between --
THE COURT: This is not going to be done in the
Metropolitan Detention Center.
MR. RANDOLPH: I understand very clearly what the
court has said and I won't suggest that again.
If I'm reading between the lines from what
Mr. Painter is saying, I think then that it sounds like it's
(34)
agreeable, since we will have a copy subject to a protective
order of essentially the materials that are in question, we can
bring -- they will be on our hard drive, Your Honor -- I can
bring a laptop to the discovery room and where it will be worked
with by --
THE COURT: Well, you're just going to have to talk
this over with the government and see exactly what the mechanism
is going to be now.
MR. RANDOLPH: Well, at any rate, that's what I
would propose, Your Honor. As I think I've indicated, we can
bring a CD rom read-only and a laptop to --
THE COURT: Is there something that would keep you
from discussing that with them?
MR. RANDOLPH: No. I'm sorry, I misunderstood the
court. I thought we were going to propose it.
THE COURT: No. I'm not going to write it out now.
I'm going to have you write it out with them.
MR. RANDOLPH: All right. Then I'll discuss that,
how, the mechanics of that with government counsel.
May I address then my client's access to the
discovery materials, which I think is the next thing that was
under consideration; that is, the government has proposed three
days a month. It is true that with the protective order and the
ability to print out a file, I may be able to, it may be
helpful -- not may, that will be very helpful in terms of my
(35)
client's review of the discovery. But because of the voluminous
nature of the discovery, it won't solve the problem.
I would ask for the following: That the notice be
given -- I'm not sure to whom it would be given, whoever has
control over the room -- that we give no more, not to be
required to give any more than 24 hours' notice; that that
notice be telephonic --
THE COURT: No. The answer is no.
MR. RANDOLPH: That it be written notice?
THE COURT: Not going to do it on 24 hours' notice
and not going to permit it to be done by telephone. And it has
to be on some routine basis so that it does not cause disruption
to everybody. This is a criminal case to be dealt with like all
other criminal cases. And we are not going to have a steady
stream of people dedicated simply to making sure that Mr.
Mitnick gets to see this material whenever he feels like it.
MR. RANDOLPH: Well, I certainly wasn't suggesting
whenever he feels like it. But we want --
THE COURT: That won't work.
MR. RANDOLPH: I understand. It will be more --
I'm not certain, Your Honor, whether I have to be there when
he's reviewing it. I assume that somebody from my staff has to
be.
THE COURT: There's no reason why you can't discuss
this with the government and work it out to both of your
(36)
satisfaction.
MR. RANDOLPH: Well, government counsel has
suggested three days a month.
THE COURT: That is not enough.
MR. RANDOLPH: And then I take it that the court
wants us to go sit down again and come up with a proposal?
THE COURT: Yes, indeed I do. This is your problem
and his problem.
MR. RANDOLPH: All right. Then I think I'm
certainly willing to do that immediately, Your Honor.
THE COURT: All right.
MR. RANDOLPH: So given that the only other request
I have is that the court order for purposes of potential
appellate review that a copy of the encryptive materials be
submitted to this court under seal.
THE COURT: Not at all, no. I'm not going to do
that. Nobody's made any showing to me at all about the
encryptive materials.
MR. RANDOLPH: Well, I think those are the points
that I -- oh, given the fact that government counsel and defense
are going to sit down and come up with a joint proposal, Your
Honor, the only other item I have to be addressed is the trial
date.
I know the government proposed a date at the end of
October. And I have tried to address that in my pleading that
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aside from the fact that we're not certain how this process is
going to work and there will probably be some kinks that need to
be worked out as we go along, I'm asking for a mid-January trial
date simply because, as I presented in my pleadings, I have
several matters, obviously not all of which will go to trial,
but are set for trial between now and October.
THE COURT: Did you take those since you've taken
the representation in this case?
MR. RANDOLPH: Well, Your Honor, I --
THE COURT: And you'll go on taking cases, won't
you?
MR. RANDOLPH: Well, I was appointed in October of
1996. So yes, I have taken on cases since that time.
THE COURT: Well, of course. I mean, of course you
have. So we are going to have to come to a conclusion about
what the trial date is going to be.
MR. RANDOLPH: I understand. If we set a
January --
THE COURT: And then we have to stick with it.
MR. RANDOLPH: I understand that too. That's why
I've suggested a mid-January trial date with the exception of --
and again, I hope to have some wiggle room because I don't know
how this process is ultimately going to work -- but putting that
aside, I don't want to have my client remain in custody longer
than necessary among others and I know the government has an
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interest in moving this case to trial
I believe that if this process works efficiently
and with cooperation of government counsel that we would be
ready for trial in mid-January of 1998, and I will gauge my
trial calendar accordingly in terms of not taking on other
matters if they're going to interfere with the trial date.
THE COURT: Well, I have these motions under
advisement now.
MR. RANDOLPH: I understand.
THE COURT: And I'll look at this order and then
I'll decide what the trial date should be.
MR. RANDOLPH: All right. Well that's -- I
appreciate it, Your Honor. That's my presentation.
THE COURT: Mr. Sherman, please.
MR. SHERMAN: Your Honor, first of all, I would
like to apologize as I have already apologized to counsel.
THE COURT: You don't have to.
MR. SHERMAN: Well, I just want to tell you that I
felt terribly about it, Your Honor.
I will be very, very brief. You know, my position
is totally unlike the position of my co-counsel. I represent
Mr. Depayne. I don't know what the evidence is against
Mr. Depayne. Either in what the government has furnished me
with the exception of one tape recording and the electronic
information, I think it's going to turn out to be a blank. I
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have set forth for the court my feelings on this omnibus order
that's been prepared. I have set forth what I thought should be
done.
Now, one of the things that I really am very
anxious to do, Your Honor, because this case was sort of done,
it didn't work out I think the way the court intended. The
court thought, I'm certain, that it had four experienced counsel
and we would be able to sit down and hammer out these items.
But we have been given no -- Mr. Depayne tells the court he
hasn't received any discovery from the government. The
government is under no court order to provide anything to
Mr. Depayne. I have six or seven motions.
Now, of course they're boilerplate motions because
of the time they were prepared. But there is one exception and
that's the wiretap motion. Your Honor, I'm convinced that
Mr. Shimimora, one of the government's major informants in this
case, although they say he's not going to testify and thereby
dismiss him, did substantial electronic surveillance on behalf
of the government.
Now, the government might say he did it on behalf
of a provider. I just want the government to respond to the
discovery motions on file. I would respectfully --
THE COURT: I think the government has to respond
to the discovery motions that you filed.
MR. SHERMAN: Well, they did file an omnibus
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response to all those motions, but they didn't take the items up
one at a time. Your Honor, if they feel they have, it's just
fine with me to just submit the entire matter to the court. You
don't have to hear from me anymore about what I wrote and just
make a ruling.
THE COURT: Well, let us not engage in
generalization.
MR. SHERMAN: All right.
THE COURT: What specifically do you -- not taking
it generally , because they are boilerplate motions -- what
specifically do you want right now?
MR. SHERMAN: I want those things -- what I want
right now is I want a court order directing the government to
supply me with the materials it deems are appropriately supplied
within my motions. Just rule on those motions.
One other thing I have to say, then I'll be seated.
As far as the trial date goes, it's a matter of indifference to
me. I intended sometime during these proceedings when I learned
a little bit more about the evidence, if that day comes, to make
a motion for severance. If that motion is granted or whether
it's granted or not, Mr. Mitnick disappears, I'm ready to try
this case at the court's convenience without a jury. I've
cleared that with Mr. Painter and Randolph.
THE COURT: Well, Mr. Painter, I have thought long
and hard about severing these defendants.
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MR. PAINTER: Well, Your Honor, that we contend
would not make sense in this case for a variety of reasons.
There's no motion on the table at this point.
THE COURT: No, I am now sharing with you my
personal views about this.
MR. PAINTER: Well, Your Honor, the indictment
charges that Lewis Depayne aided and abetted Kevin Mitnick in
the scheme alleged in the first I think, I forget now, 17 counts
in the indictment.
THE COURT: That's right.
MR. PAINTER: We laid out in the indictment,
specifically there's a paragraph that talks about specifically
what he did to aid and abet defendant Mitnick in that scheme.
In fact, one of the charged counts involves direct actions by
defendant Depayne calling up a company pretending to be someone
else and getting --
THE COURT: And that's really all you're going to
prove against him.
MR. PAINTER: No. No, that's not, Your Honor. I
mean, if you took those two things together perhaps. What we're
trying to prove is not only that he acted directly in that one
case, but that he aided and abetted defendant Mitnick in a
number of ways in all of the scheme, the entire scheme to
defraud those companies to take their property.
THE COURT: Don't leave me out. Tell me, what are
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you going to show? Have you given Mr. Sherman everything that
you have that you're going to use to prove this case?
MR. PAINTER: Your Honor, we've not only done that,
there is the one tape he refers to, but there were other tapes
that were made, tapes made with defendant Mitnick when he was on
the run, tapes that involve Lewis Depayne that he's had for
about a year now. We've had that electronic discovery made
available for a year and a half. He's come and looked at it
once for about three and a half hours. He's not really even
looked at that very extensively.
We spelled out in a letter that I quoted in our,
it's our opposition to the bill of particulars motion by
defendant Depayne, where we spell out specifically the kind of
evidence and the kinds of things we're going to prove in the
context of the case. And I'll refer the court to Paragraph,
let's see, it's a footnote.
It talks first about Paragraph 25 in the indictment
and then talks about the letter where we said that his client
was in constant contact with Mitnick throughout the period
Mitnick was a fugitive and throughout the period Mitnick carried
out the unauthorized intrusions of numerous computer systems and
engaged in large scale theft of hardware and software.
The evidence contained in the computer records we
have yet to review. This is a letter dated probably about eight
months ago. The tapes you already have and statements made by
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witnesses. There's also evidence that your client provided
Mitnick with a cellular phone to assist Mitnick in evading
detection, aiding him in reprogramming cellular phones --
THE COURT: I've read that.
MR. PAINTER: -- and the cellular phones, Your
Honor, were used to help perpetrate the hacking activity and
that Mitnick used your client's address to obtain a pager while
he was a fugitive.
Further there is evidence that Depayne's computer
accounts were used for transferring illegally obtained source
codes. Your Honor, those computer accounts maintained by
defendant Depayne are in the electronic discovery. They're very
easy to find. You'll be able to look at those.
There's also evidence that your client assisted
Mitnick in gaining access to computers at USC. Again, that's in
discovery that's either been provided or been made
available. And then finally that direct theft with respect to
the one count that was charged specifically involving him.
THE COURT: And that's all.
MR. PAINTER: Well, yes, but he is intricately
intertwined with defendant Mitnick.
THE COURT: That is just a generality.
MR. PAINTER: I understand, Your Honor. But we
believe that given that course of conduct over the course of
time -
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THE COURT: But I'm going back to what I said.
You've said what you're going to use to prove the allegation?
MR. PAINTER: Correct, Your Honor. And we, you
know, to the extent there is any material that Mr. Sherman
refers to, it's available -- we have pointed it out to him.
We'll point it out to him again, you know. We're not hiding
things from Mr. Sherman. And he's said from day one he doesn't
understand what the case is about. I don't think he understands
how aiding and abetting works in this context perhaps.
THE COURT: He doesn't?
MR. PAINTER: Well, from what he's continually said
to me and to the court, Your Honor, he keeps saying I don't see
how Depayne has any involvement in this. And we've pointed to
these things and shown that that is aiding and abetting the
fraud.
THE COURT: Oh, I'd be willing to bet that he'll
have something to say at the trial.
MR. SHERMAN: Your Honor, I'd just like to say that
I'm sure Mr. Painter is trying to paint as accurate a picture as
he can for the court. But other than the tape, he has
specifically pointed out nothing. He says that Mitnick -- I
mean Depayne aided Mitnick here, Depayne aided Mitnick there.
I've seen none of these exhibits. I'm sure there are some
things that exist like, for example, Mr. Mitnick might have used
Mr. Depayne's account. Mr. Mitnick's used the accounts of
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dozens of people who didn't give him permission to do so.
You know, my offer stands. I'll stipulate to the
foundation on all these exhibits. I've been in trial with Your
Honor before. Mr. Depayne is satisfied to waive jury in this
court. We'll stipulate to the foundation of all the exhibits
and let's go at the court's convenience.
THE COURT: All right. You're going to do with the
aid of counsel on another order.
MR. PAINTER: Correct, Your Honor.
THE COURT: And then I'll rule on all these motions.
MR. PAINTER: Correct. The only one other point
I'd like to make, Your Honor, is that it is in the government's
interest to try to go to trial sooner rather than later.
THE COURT: It's in my interest to go to trial
sooner rather than later also.
MR. PAINTER: The only other thing I would note is
in case the court has not been made aware of this is that the
appeal from defendant Mitnick's denial of bail was denied by the
Ninth Circuit yesterday.
THE COURT: No, I didn't know that.
MR. PAINTER: That happened yesterday, Your Honor.
So the court need not take any further action on that. If the
court would, I could give it a copy of the order from the Ninth
Circuit to the clerk.
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THE COURT: Well, I'm sure the Ninth Circuit is
going to tell me about it.
MR. PAINTER: I assume they will, Your Honor.
THE COURT: All right. Now, when are you going to
get this in? We really, we've got to go along with this.
MR. PAINTER: Yes, we agree, Your Honor.
THE COURT: Every five minutes somebody thinks of
something else the government has not given them, some
convenience or whatever, but eventually we are going to go to
trial.
MR. PAINTER: That's the government's wish as well,
Your Honor.
I will need to confer with the defense counsel and
get something to the court as soon as possible. I'm trying to
think of an appropriate date.
THE COURT: Well, you can have a week.
MR. PAINTER: Okay, Your Honor. That's what we'll
do. We'll submit it in a week.
THE COURT: Now, let's not go over the ground we've
been over. So Mr. Randolph, don't argue. Let's not go back and
do what we've already done five times. That's part of the
result.
MR. PAINTER: Thank you, Your Honor.
THE COURT: I'll let you know when I want you to
come back. After I've looked at the proposed order, I'll let
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you know when I want you to come back.
MR. PAINTER: Very well, Your Honor.
MR. SHERMAN: Thank you, Your Honor.
MR. RANDOLPH: Thank you.
THE CLERK: Please rise. Court concluded.
(I hereby certify that the above-referenced matter is a
true and accurate transcription of my stenographic notes)
ROGER D. MAY, CSR DATE: 9/2/98