THE COURT: WELL, YOU KNOW, YOU ARE NOT IN A
POSITION TO JUST OBJECT.
WHAT YOU ARE GOING TO HAVE TO DO IS PROPOSE
SOMETHING.
MR. RANDOLPH: I UNDERSTAND. WHAT I INTENDED TO DO,
YOUR HONOR, IS FOCUS UNDER 5(F)1.1. THE FOCUS OF THAT --
AND THE APPLICATION NOTES ARE INSTRUCTIVE IN THIS REGARD --
IT IS NOT ON CONDUCT SO MUCH AS ON OCCUPATION, BUSINESS OR
PROFESSION, AND I UNDERSTAND NOT ONLY FROM THE COMMENTS OF
THE COURT LAST TIME BUT FROM THE GIST OF THESE 7 CONDITIONS
WHAT THE COURT IS CONCERNED ABOUT, AND I AM WELL AWARE OF
THAT, AND PERHAPS I SHOULD HAVE TRIED TO DRAFT SOMETHING.
THE COURT: NUMBER 2 COULD READ, "UNLESS APPROVED BY
HIS PROBATION OFFICER."
MR. RANDOLPH: I THINK THAT'S TRUE, YES, YOUR HONOR,
BUT WHAT WILL THE PROBATION OFFICER USE AS A GUIDELINE FOR
DETERMINING WHAT IS COMPUTER-RELATED SOFTWARE?
THE COURT: I WOULD LIKE TO EXPLAIN SOMETHING TO YOU.
MR. RANDOLPH: I'M SORRY.
THE COURT: THIS IS NOT GOING TO BE TURNED INTO A
PATENT CASE, AND SO WHAT YOU ARE GOING TO SUGGEST -- IT
WILL NOT DO TO OBJECT TO WHAT IS A COMPUTER. IT WILL NOT
DO TO DO THAT.
THIS IS A CRIMINAL SENTENCE AFTER ALL, AND IT IS
GOING TO BE INTERPRETED BY PEOPLE WHO ARE NOT PATENT
LAWYERS, AND CONSEQUENTLY, IT MEANS PRETTY MUCH WHAT IT
SAYS.
MR. RANDOLPH: WELL, I WONDER --
THE COURT: AND SO IF YOU THINK THAT YOU ARE GOING
TO FILE SOMETHING THAT SAYS, "THIS IS AN ILLEGAL SENTENCE
BECAUSE NOBODY KNOWS WHAT A COMPUTER IS," YOU SHOULD PUT
THAT OUT OF YOUR MIND.
MR. RANDOLPH: I WAS INTENDING NOT TO SIMPLY OBJECT
BUT RATHER TO PUT SOMETHING FORWARD.
THE COURT: BUT I AM WORRIED ABOUT WHETHER I AM NOW
GOING TO GET SOME VERY DIFFICULT DEFINITION OF WHAT A
COMPUTER IS. IT'S A COMMONLY UNDERSTOOD WORD.
MR. RANDOLPH: WELL, I THINK IT HAS BEEN, YOUR
HONOR, UP UNTIL THE LAST 2 YEARS.
THE COURT: OH, REALLY.
MR. RANDOLPH: NOW WHEN I TURN MY CAR ON, YOUR
HONOR, I AM OPERATING A COMPUTER.
THE COURT: I TOLD YOU IT IS NOT A PATENT CASE. WE
ARE NOT IN A PATENT CASE. THAT KIND OF ARGUMENT IS FINE
EXCEPT THAT WHAT WE HAVE GOT HERE IS A CRIMINAL SENTENCE.
MR. RANDOLPH: WELL, I CERTAINLY UNDERSTAND WHAT A
PC COMPUTER IS, YOUR HONOR, WHAT THAT ITEM IS, BUT
COMPUTERS ARE NOW USED IN -- FOR INSTANCE, A WAITER IN A
RESTAURANT USES A COMPUTER TO DO A NUMBER OF -- EVERYTHING
FROM SEATING TO COMING UP WITH THE BILL.
THE COURT: I SAID THAT YOU COULD SAY IN
HERE, "UNLESS APPROVED BY THE PROBATION OFFICER."
I REALLY MEAN THIS. I AM NOT IN ANY WAY TO BE TAKEN
LIGHTLY BY HANDING OUT TO YOU CONDITIONS.
YOU'VE NEVER SEEN THAT HAPPEN BEFORE, HAVE YOU?
MR. RANDOLPH: NOT IN THIS COURT, NO.
THE COURT: NEVER, NO; NOT ANYWHERE, REALLY.
WHAT I AM TRYING TO DO IS BE FAIR, BUT I AM NOT
GOING TO LET YOU GET IN A POSITION WHERE YOU THINK THAT WE
ARE GOING TO GO THROUGH ANOTHER THREE MONTHS OF TALKING
OVER WHAT A COMPUTER IS, BECAUSE WE ARE NOT.
MR. RANDOLPH: I WOULD THINK, YOUR HONOR, BASICALLY
ON BEHALF OF MY CLIENT WHAT I THINK MY ROLE WOULD BE IS TO
TRY AND THROUGH THE COURT -- THIS BEING MY ONLY OPPORTUNITY
RATHER THAN SOMETIME DOWN THE LINE AFTER I AM NO LONGER
REPRESENTING MR. MITNICK AND THEN THEY GET INTO A SQUABBLE
OVER WHAT IS THE PROPER DEFINITION -- TO TRY AND JUST GIVE
SOME DEFINITIONAL POINTS IN THE 7 ITEMS THAT THE COURT HAS
SET FORTH.
THE COURT: WELL, YOU ARE GOING TO HAVE TO GET
TOGETHER WITH THE GOVERNMENT TO DEFINE THIS.
MR. RANDOLPH: I UNDERSTAND, BUT THAT IS MY
RESPONSE. I WOULD LIKE SOME TIME.
THE COURT: THAT IS A LOT OF WORK TO DO -- WHAT YOU
HAVE IN YOUR HAND, AND IT HAS BEEN WHITTLED DOWN AND
REFINED, AND WE ARE NOT GOING TO GET INTO A LONG, LONG
EXCHANGE AS WE WOULD IF WE WERE IN A PATENT CASE IN
DEFINING WHAT A MODUM IS OR DEFINING WHAT A COMPUTER IS.
MR. MITNICK KNOWS EXACTLY THE IMPORT OF THESE
CONDITIONS, UNDERSTANDS IT PERFECTLY.
YOU DO; DON'T YOU?
MR. PAINTER: YES, YOUR HONOR.
THE COURT: ALL RIGHT. DO YOU WANT TO SAY
ANYTHING?
MR. PAINTER: JUST BRIEFLY, YOUR HONOR.
THE COURT: ALL RIGHT.
MR. PAINTER: THERE WERE TWO -- I THINK YOUR HONOR
IS CORRECT. TO THE EXTENT THERE IS ANY QUESTION AS TO WHAT
CONSTITUTES ACCESSING A COMPUTER, THAT COULD BE CURED BY
SIMPLY SAYING "WITHOUT THE EXPRESS PERMISSION OF THE
PROBATION OFFICER."
THE COURT: WELL, I DIDN'T OFFER TO DO THAT
THROUGHOUT.
MR. PAINTER: I UNDERSTAND, YOUR HONOR.
THE COURT: I ONLY OFFERED TO DO THAT WITH RESPECT
TO SOMETHING WHERE HE IS GOING TO BE EMPLOYED.
MR. PAINTER: AND, YOUR HONOR, I THINK THE ONE FOR
NUMBER 2, THAT WOULD CERTAINLY BE APPROPRIATE, BUT NUMBER 3
I READ THAT, AND I UNDERSTAND THE IMPORT OF THAT. I THINK
THE GOVERNMENT WOULD SUGGEST THAT AFTER THE WORD
COMMUNICATIONS IT ADDS EITHER BY HIMSELF OR BY THIRD
PARTIES, BECAUSE I DON'T THINK THERE IS A STRICT
PROHIBITION, ALTHOUGH THAT IS THE IMPORT OF NUMBER ONE, NOT
OWNING ANYTHING, THAT HE NOT ACCESS THE COMPUTERS HIMSELF,
SO THAT WOULD JUST BE A STYLISTIC CHANGE.
THE GOVERNMENT WOULD PROPOSE 2 ADDITIONAL CONDITIONS
FOR THE COURT'S CONSIDERATION, ONE THAT WAS A CONDITION OF
THE ORIGINAL 1989 SUPERVISED RELEASE WHICH IS THAT HE NOT
ASSOCIATE WITH OTHER INDIVIDUALS ENGAGED IN OR KNOWN TO
HAVE BEEN ENGAGED IN COMPUTER OR TELECOMMUNICATIONS FRAUD,
AND THE SECOND, YOUR HONOR --
THE COURT: IT IS TOO HARD TO ENFORCE.
MR. PAINTER: UNDERSTANDABLE, YOUR HONOR, BUT THE
PROBLEM --
THE COURT: TOO HARD TO ENFORCE.
MR. PAINTER: THE SECOND SUGGESTION, YOUR HONOR, IS
TO THE EXTENT THAT THERE ARE, AND YOUR HONOR MAY KNOW OF
THESE, CONFERENCES, MEETINGS, ETC. DEVOTED TO THE
DISCUSSION OF COMPUTER HACKING AND TELECOMMUNICATIONS
FRAUD, THE DEFENDANT NOT PARTICIPATE IN, NOT ATTEND THOSE
KINDS OF CONFERENCES OR MEETINGS.
THE COURT: TOO HARD TO ENFORCE.
MR. PAINTER: OTHER THAN THAT, YOUR HONOR, THE
GOVERNMENT DOESN'T HAVE ANY FURTHER COMMENTS.
MR. RANDOLPH: YOUR HONOR, MAY I INQUIRE
SPECIFICALLY IN NUMBER 6, THE WORD ALTERED, DOES THAT REFER
TO EACH OF THE THREE ITEMS? I THINK THAT IS HOW I WOULD
INTERPRET IT, BUT I WANTED TO MAKE SURE.
THE COURT: YES. YOU WILL HAVE TO MAKE A JOINT
PROPOSAL TO ME.
NOW HEAR ME. THAT KIND OF FURTHER FILING IS NOT
ACCEPTABLE. WHATEVER YOU ARE GOING TO GIVE ME IS 2 OR 3
PAGES LONG AT THE MOST. IT IS A SUGGESTED CHANGE TO WHAT I
HAVE GIVEN YOU.
MR. RANDOLPH: I UNDERSTAND.
THE COURT: I HAVE READ AND READ AND READ AND THE
TAXPAYERS HAVE PAID FOR SERVICES TO GENERATE ALL THAT
PAPER, AND HAVING READ ALL THAT PAPER I SAY TO YOU WE ARE
NOW DOWN TO THE SENTENCING, AND I TOLD YOU WHAT THE NUMBER
OF MONTHS WOULD BE. I TOLD YOU THERE WAS A QUESTION ABOUT
THE CONDITIONS. I HAVE HANDED OUT COPIES OF THE
CONDITIONS. I WILL NOT NOW ACCEPT HUNDREDS OF PAGES OF
PAPER GENERATED ON BOTH SIDES.
WE ARE NOT AS I SAID, AND THIS IS THE SIXTH TIME I
HAVE SAID IT, WE ARE NOT IN A PATENT CASE.
NOW, YOU CAN HAVE UNTIL WEDNESDAY TO GIVE ME YOUR
SUGGESTED VERSION OF THE CONDITIONS -- BOTH OF YOU CAN.
THURSDAY - LET'S MAKE IT THURSDAY. WE WILL CONTINUE THIS
ONE WEEK AND ON THAT DAY WE WILL CLOSE IT OFF.
MR. RANDOLPH: YOUR HONOR, NEXT WEEK I HAVE PLANS TO
BE WITH MY FAMILY OUT OF TOWN.
THE COURT: THEN WE WILL DO IT FRIDAY.
MR. RANDOLPH: MAY I HAVE A MOMENT PLEASE, YOUR
HONOR.
MR. PAINTER: FRIDAY IS FINE WITH THE GOVERNMENT,
YOUR HONOR.
MR. RANDOLPH: FRIDAY IS FINE, YOUR HONOR.
THE COURT: FRIDAY AT 1:30. NOW HAVING ARGUED
ENDLESSLY ABOUT WHAT THE WORD "ABSCOND" MEANS AND HAVING
ARGUED ENDLESSLY ABOUT WHAT A FUGITIVE IS, I DO NOT PLAN TO
ARGUE ENDLESSLY ABOUT WHAT A COMPUTER IS.
MR. PAINTER: WE UNDERSTAND, YOUR HONOR.
THE COURT: ALL RIGHT. THANK YOU.
MR. RANDOLPH: THANK YOU.