THE COURT: ALL RIGHT. YOU ARE APPOINTED. NOW LET'S
SET SOME DATES.
MR. PAINTER: YOUR HONOR, I HAVE SPOKEN WITH MR.
RANDOLPH AND MR. SHERMAN. MR. RANDOLPH'S POSITION IS AT
THIS TIME HE IS NOT FAMILIAR WITH WHAT THE CASE ENTAILS
EITHER FOR THE SENTENCING ON THE PROBATION OR THE
SUPERVISED RELEASE REVOCATION AND THE NORTH CAROLINA RULE
20 CASE OR ON THE PENDING INDICTMENT, AND WHAT WE WOULD
LIKE TO DO TO GIVE HIM SOME TIME TO FAMILIARIZE HIMSELF
WITH ALL OF THOSE THINGS AND DECIDE WHEN THE SENTENCING
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SHOULD GO FORWARD AND TO SET A STATUS CONFERENCE IN EARLY
NOVEMBER WHERE THE COURT CAN FIRST AT THAT TIME SET A
SENTENCING DATE ON THE FIRST TWO MATTERS, AND SECOND, SET A
TRIAL DATE WITH RESPECT TO THE PENDING INDICTMENT.
THE COURT: I CAN'T DO THAT. THE REASON I CAN'T DO
IT THAT WAY IS THAT IF WE AREN'T CAREFUL WE ARE GOING TO
MISS THE SPEEDY TRIAL DATE ON THE THIRD CASE.
MR. PAINTER: I UNDERSTAND THAT, YOUR HONOR. MY
BELIEF IS THE SPEEDY TRIAL ACT ON THE THIRD DATE RUNS
ESSENTIALLY DECEMBER 6TH IS THE DATE I GAVE MR. DEPAYNE.
THE COURT: YES.
MR. PAINTER: IF WE SET A STATUS CONFERENCE
NOVEMBER 4TH THAT STILL LEAVES TIME TO SET A TRIAL WITHIN
THAT PERIOD. MY UNDERSTANDING ALSO IS THAT -- AND MR.
RANDOLPH CAN SPEAK TO THIS -- HE FEELS THE CASE IS
COMPLICATED ENOUGH THAT HE IS NOT GOING TO -- HE DOES
BELIEVE THAT THE TRIAL CAN BE SET WITHIN THE SPEEDY TRIAL
ACT FOR HIM TO BE PREPARED ADEQUATELY.
MR. SHERMAN: I WOULD JOIN, YOUR HONOR. I DON'T
THINK THIS IS GOING TO BE A SPEEDY TRIAL CASE.
THE COURT: I DON'T KNOW YET.
MR. RANDOLPH: THAT IS THE PROBLEM. IT APPEARS FROM
WHAT LITTLE I KNOW WITHIN THE LAST WEEK HAVING TALKED WITH
CO-COUNSEL AND GOVERNMENT COUNSEL THAT THAT APPEARS TO BE
THE CASE. INASMUCH AS MY CLIENT IS IN CUSTODY AND I
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HAVEN'T HAD A CHANCE TO ADDRESS THAT ISSUE WITH THE COURT
YET, THAT IS WHY I WAS HOPING THAT WE COULD SET IT FOR THE
NOVEMBER 4TH DATE. IF FOR SOME REASON IT IS NOT GOING TO
BE A TRIAL MATTER WHICH WON'T MAKE ANY DIFFERENCE IF
SOMEHOW THE TRIAL ISSUES WOULD BE SUFFICIENTLY RESTRICTED
THROUGH PRETRIAL MOTIONS SUCH THAT IT WOULDN'T BECOME A
COMPLEX CASE, IT WILL REMAIN A COMPLEX CASE, THEN I SUPPOSE
WE MIGHT BE ABLE TO REMAIN WITHIN THE STATUTORY MAXIMUM,
BUT IT DOES APPEAR AT THIS POINT IN TIME IT IS A COMPLEX
CASE, AND NOTWITHSTANDING THE FACT THAT MY CLIENT IS IN
CUSTODY WE HAVE DISCUSSED SOME FUTURE DATES THAT WE WOULD
BE PREPARED TO PROPOSE TO THE COURT. I AM HESITANT TO DO
THAT YET. IF THE COURT WILL ALLOW US TO SET THE TRIAL
SETTING DATE ON NOVEMBER 4TH --
THE COURT: WHAT IS THE THIRD CASE ABOUT?
MR. PAINTER: THE CASE THAT WAS JUST INDICTED LAST
WEEK, YOUR HONOR?
THE COURT: YES.
MR. PAINTER: THE THIRD CASE IS A CASE WHERE THE
INDICTMENT ALLEGES --
THE COURT: I KNOW WHAT THE INDICTMENT ALLEGES.
WHAT I AM ASKING IS GIVE ME A CAPSULIZED VERSION OF WHAT IS
IN THERE.
MR. PAINTER: A CAPSULIZED VERSION IS THAT DURING
THE TIME DEFENDANT MITNICK WAS A FUGITIVE OVER THE COURSE
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OF APPROXIMATELY TWO AND A HALF YEARS HE ENGAGED IN A
SYSTEMATIC BREAK-IN INTO COMPUTER SYSTEMS THROUGHOUT THE
UNITED STATES AND IN FOREIGN COUNTRIES, AND AMONG OTHER
THINGS, CAUSED DAMAGE TO THOSE COMPUTER SYSTEMS, TOOK PASS
WORD AND OTHER FILES FROM THOSE COMPUTER SYSTEMS AND STOLE
VALUABLE PROPRIETARY SOFTWARE FROM NUMEROUS DIFFERENT
COMPANIES ALLEGED IN THE INDICTMENT THAT WAS WORTH WELL
OVER MILLIONS OF DOLLARS FROM MANY DIFFERENT COMPANIES -
SEVERAL COMPANIES THAT ARE ALLEGED THERE. THIS COURSE OF
CONDUCT AGAIN TOOK PLACE OVER A 2, 2 AND A HALF YEAR
PERIOD. MR. DEPAYNE IS --
THE COURT: WHERE DO YOU ALLEGE THE DEFENDANT WAS
WHEN THIS TOOK PLACE?
MR. PAINTER: IN VARIOUS LOCATIONS; IN COLORADO, IN
SEATTLE AND IN NORTH CAROLINA. WELL, I THINK COLORADO AND
SEATTLE ARE THE TWO FOR THIS INDICTMENT, YOUR HONOR.
THE COURT: WHAT IS THE PARTICIPATION OF THE OTHER
DEFENDANT?
MR. PAINTER: THE PARTICIPATION OF DEFENDANT IS
AIDING AND ABETTING OF WIRE FRAUD COUNTS RELATING TO THE
COMPANY'S PROPRIETARY SOFTWARE AND SCHEME TO DEFRAUD;
PLACING ONE OF THE PRETEXT OR SOCIAL ENGINEERING CALLS TO
ONE OF THE VICTIM COMPANIES TO OBTAIN PROPRIETARY SOFTWARE.
THE COURT: WHAT IS A SOCIAL ENGINEERING CALL?
MR. PAINTER: A SOCIAL ENGINEERING CALL, YOUR
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HONOR, IS A PRETEXT CALL. IT IS WHEN A PERSON CALLS UP A
COMPANY AND TRIES TO CONVINCE THEM THAT THEY ARE A
LEGITIMATE EMPLOYEE OR COMPUTER USERS IN ORDER TO GET
INFORMATION FROM THEM SUCH AS PASS WORDS, COMPUTER ACCOUNTS
AND SOFTWARE IN THIS INSTANCE.
THE COURT: MR. RANDOLPH, I AM GOING TO EXPRESS THIS
FEAR TO YOU. I DON'T KNOW WHAT YOU ARE GOING TO DO IN THIS
CASE, BUT I DON'T WANT YOU TO COME IN ON THE 4TH OF
NOVEMBER AND SAY THAT YOU HAVE DECIDED TO GO TO TRIAL ON
THE DATE INSIDE OF THE SPEEDY TRIAL ACT ON THAT SET OF
FACTS. THAT WOULD PRESENT A CRAM COURSE FOR YOU, AND
THEREFORE, I THINK WE SHOULD SET THAT STATUS CONFERENCE
DATE SOONER.
MR. RANDOLPH: MAY I HAVE A MOMENT, PLEASE, YOUR
HONOR, IN LIGHT OF WHAT THE COURT SAID.
THE COURT: MR. PAINTER, PEOPLE CHANGE THEIR MINDS.
MR. PAINTER: YES, THEY DO, YOUR HONOR. I AM WELL
AWARE OF THAT.
THE COURT: WHILE I AM PREPARED TO TRY IT I JUST
WANT TO BE SURE THAT MR. RANDOLPH IS PREPARED TO TRY IT.
MR. RANDOLPH: I AM COGNIZANT OF WHAT THE COURT
SAID, YOUR HONOR.
THE COURT: WHAT I SAID IS I DON'T WANT YOU TO COME
ON THE 4TH OF NOVEMBER AND SAY YOUR CLIENT IS NOT WILLING
TO WAIVE OR EXTEND THE SPEEDY TRIAL ACT DATE AND THEN YOU
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WILL BE FACED WITH THE PROBLEM OF GETTING TO TRIAL WITHIN
30 DAYS ON THAT SET OF FACTS.
MR. RANDOLPH: I APPRECIATE THAT, YOUR HONOR. IN
LIGHT OF THAT AND MY CLIENT AND I HAD DISCUSSED IT LAST
WEEK, WE HAD DISCUSSED THE SITUATION, WE BELIEVE THAT IT IS
A COMPLEX MATTER, AND WE WOULD ASK THE COURT IF YOU CAN
GIVE US A REALISTIC TRIAL DATE IN FEBRUARY MY CLIENT WOULD
BE WILLING TO ENTER INTO A STIPULATION REGARDING THE
COMPLEXITY OF THE CASE FOR PURPOSES OF WAIVER OF THE SPEED
TRIAL ACT AND THE ONLY OTHER ADDITIONAL POINT I WOULD LIKE
TO RAISE, WE WOULD LIKE TO KEEP THE NOVEMBER 4TH DATE FOR
THE COURT TO CONSIDER THE ISSUE OF BAIL. OBVIOUSLY I WILL
FILE MY PAPERS ON THAT ISSUE IN THE PROPER METHOD, BUT AT
LEAST WE HAVE THE ABILITY TO GIVE US 4 WEEKS FOR ME TO GET
UP TO SPEED IN TERMS OF ALL THREE MATTERS TO MAKE A PROPER
PRESENTATION ON THE ISSUE OF BAIL AND THE COURT CAN
CONSIDER THAT ON NOVEMBER 4TH, AND EITHER WAY WE WILL BE
COMMITTED TO A FEBRUARY TRIAL DATE.
THE COURT: THERE IS NO PROBLEM ABOUT YOUR GETTING A
TRIAL DATE IN THE AREA THAT -- IN THE TIMEFRAME THAT YOU
AND MR. SHERMAN AGREE TO.
MR. SHERMAN: THANK YOU.
THE COURT: THERE IS NO PROBLEM ABOUT THAT.
MR. SHERMAN: THANK YOU.
THE COURT: I HAVE NOW EXPRESSED MY APPREHENSION
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ABOUT WHAT COULD HAPPEN SO I AM CHARGING YOU AS COUNSEL
THAT IF YOU SEE THAT COMING TOWARDS YOU YOU SHOULD CALL MR.
FLORES AND TELL HIM THAT ALL OF YOU SHOULD COME IN AND
DISCUSS THIS WITH ME.
MR. RANDOLPH: I WILL DO SO, YOUR HONOR.
THE COURT: ALL RIGHT. YOU ARE APPOINTED AND YOU SET
NOVEMBER 4TH AT 1:30 AS THE TIME WHEN WE HAVE THE NEXT
CONFERENCE.
MR. PAINTER: YOUR HONOR, SOME ADDITIONAL MATTERS.
ONE IS MR. RANDOLPH ALLUDED TO -- MR. RANDOLPH INFORMED THE
GOVERNMENT THAT FOR THE TIME BEING THE DEFENDANT, MR.
MITNICK, IS IN CUSTODY AND FOR THE TIME BEING HE IS WILLING
TO STIPULATE TO THE DETENTION ORDER OR REQUEST THAT WAS
FILED BY THE GOVERNMENT UNTIL HE HAS HAD A CHANCE TO
FAMILIARIZE HIMSELF WITH THE CASE AND PERHAPS CHALLENGE
THAT LATER ON.
THE COURT: THAT'S FINE.
MR. RANDOLPH: THAT'S CORRECT, YOUR HONOR. I TOLD
HIM AS THE COURT MAY ASSUME I AM GOING TO BRING THAT UP ON
THE NOVEMBER 4TH DATE.
THE COURT: THE BAIL.
MR. RANDOLPH: WITH RESPECT TO THE ISSUE OF BAIL
AND THE CONTINUED VIABILITY OF THE DETENTION ORDER.
THE COURT: LET'S JUST ASSUME THAT WE ALL AGREE ON
THE 4TH YOU WILL RAISE THE ISSUE OF BAIL.
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MR. PAINTER: YOUR HONOR, THE OTHER MATTER IS THAT
AS YOUR HONOR RECALLS THE GOVERNMENT BROUGHT A MOTION WITH
RESPECT TO A CONFLICT OF INTEREST ON THE PART OF MR.
SHERMAN WHEN HE REPRESENTED MR. MITNICK. MR. SHERMAN
REPRESENTED MR. MITNICK FOR ABOUT A 4 MONTH PERIOD PRIOR TO
THIS INDICTMENT AND IS NOW REPRESENTING HIS CODEFENDANT,
MR. DEPAYNE. THE GOVERNMENT AGAIN BELIEVES THERE IS A
CONFLICT WITH THIS. THE GOVERNMENT BELIEVES THAT THIS HAS
TO BE BROUGHT TO THE COURT'S ATTENTION AND WHAT THE
GOVERNMENT WOULD PROPOSE AT THIS POINT AGAIN SINCE MR.
RANDOLPH IS NEWLY APPOINTED TO THE CASE ON THAT NOVEMBER
4TH HEARING -- WE WILL IN THE INTERIM DISCUSS WITH COUNSEL
A BRIEFING SCHEDULE FOR THAT MATTER AND INFORM THE COURT OF
THAT ON NOVEMBER 4TH.
THE COURT: YOU WILL INFORM THE COURT OF THAT?
WHAT IS "THAT"?
MR. PAINTER: I AM SORRY, YOUR HONOR. WE WILL
ADVISE THE COURT AS TO A BRIEFING SCHEDULE THAT THE PARTIES
FEEL IS APPROPRIATE, AND IF THE COURT AGREES THE COURT
COULD ORDER THAT BRIEFING SCHEDULE FOR THE ISSUE OF THE
POSSIBLE DISQUALIFICATION OF MR. SHERMAN WITH RESPECT TO
MR. DEPAYNE.
THE COURT: YOU ARE GOING TO MAKE A MOTION NOW TO
DISQUALIFY HIM?
MR. PAINTER: WELL, YOUR HONOR, THE PROBLEM IS THAT
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MR. SHERMAN --
THE COURT: DON'T DO IT UNLESS YOU HAVE GOT A GOOD
GROUND FOR IT.
MR. PAINTER: WE BELIEVE WE DO, YOUR HONOR. WE
BELIEVE NO MATTER WHAT HAPPENS IT IS AN ISSUE THAT WE HAVE
TO PUT BEFORE THE COURT. MR. SHERMAN REPRESENTED MR.
MITNICK FOR 4 MONTHS, 4 AND A HALF MONTHS AND IS NOW
REPRESENTING A CODEFENDANT. THAT RAISES A HOST OF
PROBLEMS.
THE COURT: THE GROUND WAS THAT HE WAS REPRESENTING
THE CODEFENDANT. NOW HE IS REPRESENTING THE CODEFENDANT.
MR. PAINTER: THAT STILL CAUSES A PROBLEM. IN
BRIEF, SOME OF THE PROBLEMS ARE THAT MR. SHERMAN CANNOT
ADEQUATELY ADVISE HIS CLIENT WITHOUT POSSIBLY BREACHING
CLIENT CONFIDENCES THAT HE LEARNED WHILE HE REPRESENTED MR.
MITNICK. HE CAN'T ADVISE HIS CLIENT BECAUSE HE REPRESENTED
MR. MITNICK. IF THE CASE GOES TO TRIAL AND MR. MITNICK
TAKES THE STAND, HE IS PLACED IN A REAL PROBLEM IN TERMS OF
CROSS EXAMINING MR. MITNICK OR ADEQUATELY BRINGING OUT
FACTS THAT MIGHT FAVOR MR. DEPAYNE BUT HURT MR. MITNICK.
THOSE ARE LOYALTY PROBLEMS.
THE COURT: THE GOVERNMENT IS CONCERNED THAT MR.
SHERMAN FOUND OUT SOME THINGS WHEN HE WAS REPRESENTING MR.
MITNICK AND HE WOULD NOW BE IN A VERY DIFFICULT POSITION TO
CROSS-EXAMINE MR. MITNICK.
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MR. PAINTER: THAT'S CORRECT, YOUR HONOR. I THINK
THAT IS ONE OF SEVERAL CONCERNS THAT ARE RAISED. NOW THERE
ARE A COUPLE OF ISSUES.
THE COURT: YOU SAID THAT WAS IT.
MR. PAINTER: NO. THAT IS ONE ISSUE. ANOTHER ONE IS
STRATEGY SORT OF DECISIONS, WHETHER HE PUTS MR. DEPAYNE ON
THE STAND OR DOES NOT PUT HIM ON THE STAND NOW KNOWING WHAT
HE MIGHT KNOW FROM MR. MITNICK, THAT IS SOMETHING WE CAN'T
INQUIRY INTO BECAUSE OF THE ATTORNEY/CLIENT PRIVILEGE WHEN
HE WAS REPRESENTING MR. MITNICK SO WE DON'T KNOW. THERE IS
THE ISSUE IN TERMS OF CLIENT LOYALTY, WHETHER HE CAN
ADEQUATELY EITHER CROSS-EXAMINE MR. MITNICK, ADVISE HIS
CLIENT WITH RESPECT TO ANY POSSIBLE TESTIMONY THAT INVOLVES
MR. MITNICK OR REALLY ADEQUATELY REPRESENT HIS CLIENT IN
TERMS OF PLEA NEGOTIATIONS.
THE COURT: WELL, I AM GOING TO TELL YOU THIS. I
HAVE ALREADY BEEN THROUGH THIS MOTION, AND I WOULD NOT
CONSIDER IT TO BE VERY WISE ON THE PART OF THE GOVERNMENT
TO PUT ME THROUGH IT AGAIN UNLESS YOU HAVE GOT A VERY GOOD
GROUND FOR IT.
MR. PAINTER: WELL, YOUR HONOR, THOSE ARE THE
ISSUES WE RAISED.
THE COURT: REMEMBER HOW BIG THAT MOTION WAS.
MR. PAINTER: YES, I DO.
THE COURT: THAT IS A LOT OF PAGES, AND THEY HAVE TO
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RESPOND TO THAT.
MR. PAINTER: I UNDERSTAND, YOUR HONOR, AND IT
OBVIOUSLY IS MORE STREAM-LINED NOW THAT MR. SHERMAN
REPRESENTS SIMPLY ONE CLIENT.
THE COURT: I WOULDN'T SAY IT IS STREAM-LINED. IT IS
THE SAME SITUATION.
MR. PAINTER: IT IS, YOUR HONOR.
THE COURT: YOU SAID HE REPRESENTED MR. DEPAYNE.
MR. PAINTER: THAT'S CORRECT.
THE COURT: NOW HE REPRESENTS MR. DEPAYNE. I AM
MAKING A POINT TO YOU. I HOPE YOU RECOGNIZE THAT I DON'T
WANT TO HAVE TO READ THE SAME MOTION AGAIN.
MR. PAINTER: I UNDERSTAND THAT, TOO, YOUR HONOR,
BUT AGAIN THE CASES ARE FAIRLY CLEAR. THIS IS SOMETHING WE
NEED TO BRING TO THE COURT'S ATTENTION, AND EVEN IF THE
COURT DISAGREES WITH US AND DECIDES THAT A WAIVER, FOR
INSTANCE, IS APPROPRIATE AND THE GOVERNMENT DOES NOT
BELIEVE THAT IS APPROPRIATE, THAT IS SOMETHING MR. DEPAYNE
AND MR. MITNICK HAVE TO DECIDE ABOUT AND AT THE VERY LEAST
WE WOULD HAVE TO ENTER INTO VERY EXTENSIVE WAIVERS IN THIS
CASE SO THAT ISSUE HAS TO BE BROUGHT TO THE COURT'S
ATTENTION, YOUR HONOR. I DON'T THINK WE HAVE A CHOICE IN
THAT.
MR. RANDOLPH: YOUR HONOR, WHEN MR. PAINTER WALKED
OVER TO ME THIS MORNING I TOLD HIM RESPECTFULLY IF YOU HAVE
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GOT A MOTION, FILE IT. IF YOU WANT TO BRING IT UP DO SO. I
MEAN NO DISREGARD TO THE COURT BY MY RESPONSE TO YOU. I
THINK THESE ARE FRIVOLOUS MOTIONS, AND I HAVE NEVER SEEN
THE GOVERNMENT MAKE A MOTION OF THIS TYPE WHERE THERE IS AN
ATTORNEY WHO COOPERATES WITH THEM ON A SOMETIMES BASIS.
THE COURT: WELL, I DON'T WANT TO READ THE SAME
THINGS AGAIN. I CAN FIGURE OUT ALL OF THIS AS WELL AS YOU
CAN.
MR. PAINTER: I UNDERSTAND THAT.
THE COURT: I DON'T WANT THEM SPENDING A LOT OF TIME
AND MONEY FOR THINGS WHICH ARE MERELY STRATEGIC.
I AM GRAPPLING FOR A WORD.
MR. PAINTER: IT IS NOT STRATEGIC, YOUR HONOR.
THE COURT: DON'T DO IT IF IT IS PURELY STRATEGIC.
MR. PAINTER: YOUR HONOR, WE DON'T, AND I DON'T
BELIEVE I EVER HAVE, AND I WOULDN'T ASK YOUR HONOR IN THIS
CASE.
THE PROBLEM IS THE NINTH CIRCUIT HAS SAID ON MANY
OCCASIONS THAT A CONFLICT CREATES PROBLEMS -- THAT IT CAN
CAUSE PROBLEMS AFTER A VERDICT OR RESOLUTION IS REACHED AND
THE GOVERNMENT WANTS TO MAKE SURE THAT THAT DOESN'T COME
BACK. WE WANT TO DO THIS CASE ONCE.
THE COURT: BUT YOU, MR. PAINTER, DO NOT KNOW WHAT
THE CONFLICT IS, AND YOU WILL FILE THE MOTION, AND YOU
STILL WILL NOT.
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MR. PAINTER: WHAT THE CASES HAVE SAID IS IT IS THE
POTENTIAL FOR CONFLICT. THE FACT THAT HE HAS REPRESENTED
ANOTHER PARTY WITH RESPECT TO THE SAME MATTER CREATES THE
CONFLICT.
WE ADVISED MR. SHERMAN IN JUNE WHEN HE SIGNED ON
WITH THIS DEFENDANT THAT THAT WAS A PROBLEM, AND WE ADVISED
THE COURT AT THAT TIME, AND HE CONTINUED TO REPRESENT MR.
MITNICK.
THE COURT: WE WILL SEE WHAT EVERYBODY SAYS ABOUT
THIS. BEAR IN MIND WHAT I SAID.
MR. PAINTER: I DO, YOUR HONOR.
THE COURT: TAKE IT SERIOUSLY.
MR. PAINTER: I DO, YOUR HONOR, AND I BELIEVE WHAT
YOU HAD STATED IN AN EARLIER TIME. YOU BELIEVE AT THE VERY
LEAST THAT WAIVERS WOULD BE NECESSARY. IS THAT STILL THE
COURT'S SORT OF TENTATIVE POSITION?
THE COURT: YOU DIDN'T COME IN TO QUESTION THE
COURT; DID YOU?
MR. PAINTER: NO, I DID NOT.
MR. SHERMAN: MAY I ADDRESS A DIFFERENT SUBJECT?
I WOULD LIKE YOUR PERMISSION TO FILE A WAIVER. YOU
INDICATED YOU MIGHT CONSIDER SUCH A WAIVER OF MR. DEPAYNE'S
PRESENCE. MAY I APPROACH THE CLERK?
THE COURT: THAT'S FINE.
THE DEFENDANT: THANK YOU, YOUR HONOR.
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MR. SHERMAN: AS A SECONDARY MATTER I WOULD LIKE TO
KNOW YOUR POSITION. I UNDERSTAND WE DO HAVE SOME DISCOVERY
COMING FROM THE GOVERNMENT BUT IN THE EVENT THERE IS MORE
DISCOVERY NECESSARY, AND I AM CERTAIN IN THIS CASE THERE
WILL BE, I WOULD LIKE YOUR PERMISSION TO FILE SUCH
DISCOVERY-TYPE MOTIONS AND SET THEM FOR A DATE CONVENIENT
FOR THE COURT AND COUNSEL.
THE COURT: WELL, MR. RANDOLPH IS GOING TO WANT TO
DO THE SAME THING SO YOU SHOULD COORDINATE THAT. I DON'T
MIND YOUR FILING THE DISCOVERY MOTIONS BUT YOU NO DOUBT
WILL DO THAT BEFORE YOU GET ALL THE DISCOVERY FROM THE
GOVERNMENT. YOU WORK IT OUT HOWEVER YOU WANT TO. YOU CAN
FILE THE MOTIONS WHENEVER YOU WISH, BOTH OF YOU.
MR. RANDOLPH: THANK YOU, YOUR HONOR. I HAVE TWO
MINOR MATTERS, YOUR HONOR. I HAVE BEEN COMMUNICATING WITH
GOVERNMENT COUNSEL AT THE END OF LAST WEEK, AND I WILL BE
FILING A REQUEST FOR A TAPE LISTENING DEVICE SO THAT -- THE
GOVERNMENT HAS ALREADY INDICATED THEY HAVE 15 CASSETTE
TAPES THAT WE HAVE AS PART OF THE DISCOVERY. I SUSPECT
THERE MAY BE MORE.
THE COURT: THOSE ARE TELEPHONE CALLS?
MR. RANDOLPH: YES, YOUR HONOR.
THE COURT: ARE THEY PERSONAL, ONE ON ONE?
MR. RANDOLPH: I DON'T KNOW THE NATURE OF THE
CASSETTE TAPE RECORDINGS.
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MR. PAINTER: THEY ARE TELEPHONE CALLS, YOUR HONOR,
AND THEY ARE PERSONAL ONE ON ONE OR ONE TO SEVERAL
DIFFERENT PARTIES.
THE COURT: BUT THEY ARE TELEPHONE CALLS.
MR. PAINTER: THEY ARE ALL TELEPHONE CALLS. THIS
INITIAL GROUP OF TAPES AT LEAST ARE ALL TELEPHONE CALLS. I
THINK THEY ARE ALL TELEPHONE CALLS.
THE COURT: WHAT DO YOU MEAN A COUPLE OF OTHERS?
MR. PAINTER: THERE ARE A COUPLE IN THE PROCESS OF
BEING TRANSCRIBED. I AM TURNING OVER THE 15 CONVERSATIONS
TODAY, AND THERE ARE A COUPLE OF ADDITIONAL ONES THAT WE
WILL BE TURNING OVER WITHIN THE NEXT WEEK OR WEEK AND A
HALF. I THINK MR. RANDOLPH HAD REQUESTED HIS CLIENT HAVE
THE ABILITY TO LISTEN TO THOSE.
THE COURT: THAT IS WHAT HE IS TALKING ABOUT, BUT
IT IS NOT AS SIMPLE AS IT SOUNDS BECAUSE YOU HAVE TO DO
THIS. I HAVE TO HAVE THE INSTITUTION MAKE THIS POSSIBLE,
AND IF HE WANTS TO HEAR THEM OVER AND OVER AGAIN THAT
PRESENTS A PROBLEM.
MR. PAINTER: YOUR HONOR, THAT IS WHAT WE TOLD MR.
RANDOLPH LAST WEEK ABOUT M.D.C., AND I UNDERSTAND HE WILL
CHECK WITH THE INSTITUTION ABOUT THAT. WE WOULD NOT AGREE
WITH THIS BECAUSE M.D.C. POSES PROBLEMS WITH ARRANGING THE
LOGISTICS. IF M.D.C. WOULD ALLOW IT AND HAD NO OBJECTION --
MR. RANDOLPH: IN MY EXPERIENCE THIS IS THE FOURTH
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CASE WHEN THERE IS MORE THAN ONE OR TWO TAPES SUCH THAT
THEY CAN BE EASILY LISTENED TO IN A SESSION WITH COUNSEL.
UPON RECEIPT OF AN ORDER FROM THE COURT THE M.D.C. IS VERY
ACCOMMODATING. THEY ALLOW YOU TO BRING IN A TAPE LISTENING
DEVICE, ONE THE CLIENTS CAN LISTEN TO. THEY CAN MAINTAIN
IT ON THEIR PERSON IN THEIR OWN AREA. THEN THEY CAN LISTEN
TO THE TAPES AS MANY TIMES AS THEY WISH.
THE COURT: BEFORE YOU SEND ME AN ORDER I SUGGEST
YOU TALK TO THEM ABOUT HOW THIS IS TO BE WORKED OUT. IF
THEY SAY THEY CAN DO IT THEN I WILL ORDER IT.
MR. RANDOLPH: ABSOLUTELY, YOUR HONOR. THAT IS THE
THING I AM WORKING OUT THIS WEEK.
THE COURT: OKAY. THANK YOU. NOVEMBER THE 4TH AT
1:30.
MR. RANDOLPH: THANK YOU.
MR. SHERMAN: THANK YOU, YOUR HONOR.
MR. PAINTER: THANK YOU.