1 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION HONORABLE MARIANA R. PFAELZER, JUDGE PRESIDING UNITED STATES OF AMERICA, ) PLAINTIFF. ) ) VS. ) CR. 96-881 MRP ) KEVIN DAVID MITNICK, LEWIS DEPAYNE. ) DEFENDANTS. REPORTER'S TRANSCRIPT OF PROCEEDINGS LOS ANGELES, CALIFORNIA WEDNESDAY, DECEMBER 3, 1998 ---------------------------------------------------------- BETH E. ZACCARO OFFICIAL COURT REPORTER C.S.R. 2489, R.P.R. 414 UNITED STATES COURTHOUSE 312 NORTH SPRING STREET LOS ANGELES, CALIFORNIA 90012 2 APPEARANCES: FOR THE PLAINTIFF: DAVID J. SCHINDLER, ASSISTANT UNITED STATES ATTORNEY FOR DEFENDANT MITNICK: DONALD C. RANDOLPH, ESQ. FOR DEFENDANT DEPAYNE: RICHARD SHERMAN, ESQ. 3 LOS ANGELES, CALIFORNIA, ON DECEMBER 3, 1998 BEGINNING AT APPROXIMATELY 3:00 P.M. THE CLERK: ITEM NUMBER 2, CRIMINAL 96-881. UNITED STATES OF AMERICA VERSUS KEVIN MITNICK AND LEWIS DEPAYNE. COUNSEL, PLEASE MAKE YOUR APPEARANCE. MR. SCHINDLER: DAVID SCHINDLER ON BEHALF OF THE UNITED STATES. MR. RANDOLPH: GOOD AFTERNOON, YOUR HONOR, DONALD RANDOLPH ON BEHALF OF KEVIN MITNICK WHO IS PRESENT IN COURT. MR. SHERMAN: GOOD AFTERNOON, YOUR HONOR, RICHARD SHERMAN FOR LEWIS DEPAYNE WHO IS ABSENT WITH THE COURT'S PERMISSION. THE COURT: HAVE YOU AGREED ON A TRIAL DATE? MR. RANDOLPH: WELL, I HAD PROPOSED A DTAE. THE COURT: IN APRIL. MR. RANDOLPH: IN APRIL, YOUR HONOR, APRIL -- I THINK TUESDAY IS APRIL THE 20TH, YOUR HONOR. I THINK MR. SHERMAN WANTS TO ADDRESS THE COURT WITH RESPECT TO THAT DATE, AND I GOT THE IMPRESSION THAT I WANT TO CONFIRM WITH GOVERNMENT COUNSEL THAT IT'S AVAILABLE TO COUNSEL. MR. SCHINDLER: AS WE INDICATED YESTERDAY, OBVIOUSLY WE WOULD LIKE TO GO SOONER THAN LATER IN APRIL. THAT DATE IS FINE. AS I SAID, OUR PREFERENCE WOULD HAVE BEEN TO GO IN MARCH. I UNDERSTAND THERE ARE SCHEDULING 4 CONFLICTS. ULTIMATELY THERE IS NOT GOING TO BE MUCH OF A DIFFERENCE IN THAT REGARD SO I DEFER TO THE COURT IN THAT RESPECT. THE COURT: ALL RIGHT. THEN WE ARE GOING TO HAVE TO TAKE UP THE MATTER OF DISCOVERY. I DON'T LIKE THE WAY YOU WRITE AT ALL, MR. RANDOLPH. WHAT DO YOU MEAN ABOUT THE LACK OF UNDERSTANDING HERE? WHAT DOES THAT MEAN? MR. RANDOLPH: MAYBE THE COURT COULD TELL ME WHAT IT IS REFERRING TO. THE COURT: THE COURT'S PRESUMED LACK OF EXPERTISE IN SOPHISTICATED COMPUTER TECHNOLOGY. MR. RANDOLPH: WHAT I MEAN BY THAT IS THE FOLLOWING, YOUR HONOR. IN ITS OPPOSITION, THE GOVERNMENT ARGUED THAT A DELETED FILE THAT IS FROM A SET OF COMPUTER FILES IS IDENTICAL TO A PIECE OF PAPER THAT HAS ITEMS ERASED FROM IT, AND THE GOVERNMENT COULD NOT MAKE SUCH AN ARGUMENT -- THE COURT: THAT IS WHAT YOU ARE REFERRING TO? MR. RANDOLPH: I AM REFERRING TO THE GOVERNMENT'S ARGUMENT. THEY WOULD NOT MAKE THAT UNLESS THEY ASSUME THE COURT WOULD NOT UNDERSTAND THAT A DELETED FILE IN COMPUTER LANGUAGE IS COMPLETELY DIFFERENT FROM SOMETHING THAT IS ERASED OFF A PIECE OF PAPER. OBVIOUSLY, A DELETED COMPUTER FILE IS NOT ERASED LIKE ITEMS OFF OF A PIECE OF PAPER BUT SIMPLY REMAINS IN THE COMPUTER UNTIL IT IS OVERRIDEN BY SOMETHING ELSE. 5 THE COURT: I GATHER THAT IS WHAT WE ARE ARGUING ABOUT, RIGHT? MR. RANDOLPH: WITH RESPECT TO THE DISCOVERY ITEMS THAT WERE BEFORE THE COURT, SINCE YESTERDAY MR. SCHINDLER AND I HAVE SAT DOWN AND HAD A LONG CONVERSATION AND AT THIS POINT IN TIME I THINK WE CAN WORK IT OUT. THE COURT: I AM ASSUMING SO. MR. RANDOLPH: IF THERE IS A PROBLEM WE WILL COME BACK, BUT AT THIS POINT IN TIME WE SEEM TO HAVE RESOLVED MOST, IF NOT ALL, OF THE ISSUES. THE COURT: MR. SHERMAN, I WANT TO HEAR IT IN CAPSULIZED FORM. MR. SHERMAN: I WILL BE QUITE BRIEF WITH THE COURT. YOUR HONOR, I WOULD SAY NOTHING EXCEPT FOR THE TRIAL DATE, BUT I KNOW THE COURT HAS A GOOD GRASP OF FACTS WITH MY PREVIOUS EXPERIENCE WITH THIS COURT, AND I HAVE BEEN WAITING TO SEE WHAT THE EVIDENCE WAS AGAINST DEPAYNE. YOU KNOW I HAVE BEEN SAYING THERE IS NO EVIDENCE THAT WOULD -- FACT SPECIFIC EVIDENCE WHICH WOULD TIE HIM INTO THE INDICTMENT IN THIS CASE, AND HE SHOULD BE SEVERED BECAUSE THERE IS ONLY REALLY EVIDENCE SUPPORTING THE GRAND JURY INDICTMENT ON ONE COUNT. THE COURT: I AM GOING TO SEVER HIM. I THINK I AM. MR. SHERMAN: WELL, DOES THE COURT WANT TO DO IT 6 NOW OR DO YOU WANT ME TO FILE A MOTION? THE COURT: YES. MR. SHERMAN: ALL RIGHT. FINE. THEN IN THAT CASE, YOUR HONOR, I WOULD JUST ADVISE YOU -- THE COURT: I WASN'T GOING TO DO THAT BUT THE MORE THAT GOES ON IN THIS CASE THE MORE I THINK THAT IS APPROPRIATE. MR. SHERMAN: ALL RIGHT, YOUR HONOR. I HOPE I DON'T DO ANYTHING TO DISSUADE YOU WITH MY MEMORANDUM. THE COURT: I WAS REALLY OPPOSED TO DOING THAT KIND OF THING, BUT I HAVE BEEN THINKING IT OVER. MR. SHERMAN: ALL RIGHT. YOUR HONOR, THEN I JUST WOULD LIKE TO SAY ONE THING IF I MAY. I HAVEN'T FILED A MOTION BECAUSE I HAVEN'T HAD THE DISCOVERY UPON WHICH TO, YOU KNOW, COME IN WITH THE FACTS, AND I AM NOT CRITICIZING ANYBODY. IT JUST HASN'T BEEN THERE YET. I JUST HAVE THE JENCKS ACT STATEMENT, AND THERE IS NOTHING IN THERE THAT I CAN SEE, AND PERHAPS WHEN I GET THE EXHIBIT LIST I WILL -- AND MR. SCHINDLER HAS VERY KINDLY OFFERED TO WALK ME THROUGH THE EVIDENCE AGAINST DEPAYNE SO I WILL BE IN A MUCH BETTER POSITION TO DO THAT. THE COURT: WHY DON'T YOU DO THAT. MR. SHERMAN: HE IS GOING TO -- HE AND I ARE GOING TO DO THAT, YOUR HONOR. I DO HAVE A TRIAL SET ON APRIL 27TH. IT IS A RICO PROSECUTION IN WHICH THERE IS ONE OTHER 7 DEFENDANT. IF FOR SOME REASON I AM GOING TO BE IN THIS CASE AND THE CASE IS GOING TO BE SET SHORTLY BEFORE THAT, I JUST WONDERED IF THERE IS A CHANCE YOUR HONOR COULD INTERVENE WITH THE JUDGE AND EXPLAIN THE SITUATION. THE COURT: YOU MEAN CALL HIM? I WILL. MR. SHERMAN: THEN I HAVE NOTHING FURTHER TO SAY. THANK YOU, YOUR HONOR. THE COURT: ALL RIGHT. YOU MUST PUT TOGETHER A STIPULATION THAT PROPERLY REFLECTS WHAT YOU ASKED FOR. OH, MR. MITNICK, YOU WANT A CONTINUANCE, DO YOU? THE DEFENDANT: YES, YES, YOUR HONOR. THE COURT: ASKING FOR A DATE IN APRIL, RIGHT? THE DEFENDANT: WHATEVER MY ATTORNEY FEELS APPROPRIATE. THE COURT: HE SAID APRIL 20TH. MR. RANDOLPH: YOUR HONOR, I CAN REPRESENT -- THE COURT: DO NOT REPRESENT ANYTHING. I AM ASKING HIM IS THAT WHAT YOU WANT? THE DEFENDANT: WHATEVER DATE MY ATTORNEY THINKS HE COULD BE PREPARED. THE COURT: YOU JUST SAID APRIL 20TH. THE DEFENDANT: OKAY. THE COURT: I HAVE TO HAVE A REQUEST SIGNED BY HIM IN THE STIPULATION. MR. SCHINDLER: WE AGREE, YOUR HONOR. 8 MR. RANDOLPH: YOUR HONOR, WHAT I WAS GOING TO SAY WAS THE REASON I SELECTED APRIL 20TH IS BECAUSE MR. MITNICK ACTUALLY WOULD LIKE ME TO ASK FOR A DATE IN MAY. I DIDN'T FOR TWO REASONS. ONE, BECAUSE I WAS CONCERNED -- IN LIGHT OF THE CONVERSATION YESTERDAY, I DIDN'T WANT TO ASK FOR MORE. THE COURT: THE COURT WANTS TO GO TO TRIAL. MR. RANDOLPH: I UNDERSTAND THAT, YOUR HONOR. I DIDN'T ASK FOR THE DATE IN MAY BECAUSE I WAS CONCERNED ABOUT BEING CONSCIOUS OF CO-COUNSEL'S CALENDAR AS WELL. MR. MITNICK DOES WANT ME TO ASK FOR A DATE IN MAY, AND THAT IS WHAT I WANTED TO ARTICULATE TO THE COURT. THE EXTRA 30 DAYS WOULD BE A NICE BUFFER SO WE DON'T HAVE TO STAND BEFORE YOUR HONOR AGAIN LIKE THIS -- THE COURT: IT ISN'T GOING TO DO ANY GOOD TO STAND IN FRONT OF YOUR HONOR LIKE THIS AGAIN. MR. RANDOLPH: I UNDERSTAND. THE COURT: SO YOU GIVE ME THE STIPULATION. LET'S STOP ARGUING ABOUT THIS AND GO TO TRIAL. MR. RANDOLPH: COULD THE COURT CONSIDER A DATE IN MAY IN LIGHT OF WHAT I JUST SAID? THE COURT: I WOULD CONSIDER THE DATE YOU SUGGESTED. MR. RANDOLPH: THE APRIL DATE, ALL RIGHT. THERE IS ONE OTHER MATTER ASIDE FROM THE DISCOVERY ITEMS THAT WAS LISTED IN MY PAPERS. I WONDER IF I COULD TAKE THAT UP 9 BRIEFLY, YOUR HONOR. THE COURT: WHAT IS IT? MR. RANDOLPH: IN THE OMNIBUS DISCOVERY ORDER WITH REPSECT TO MR. MITNICK'S REVIEW OF THE ELECTRONIC DISCOVERY, THE ORDER FROM LAST SUMMER STATES EITHER MYSELF OR AN ASSOCIATE FROM MY FIRM MUST BE PRESENT AT THE M.D.C. WHEN MR. MITNICK IS REVIEWING THE DISCOVERY. ONE OF THE PROBLEMS WE HAVE RUN INTO IS IF WE ARE THERE WITH HIM THEN WE CAN'T BE PREPARING THIS CASE FOR TRIAL AND -- THE COURT: THEN HAVE AN ASSOCIATE BE THERE. MR. RANDOLPH: WELL, I ONLY HAVE TWO ATTORNEYS. THERE IS ONLY TWO PEOPLE IN MY FIRM THAT ARE AVAILABLE TO WORK ON THIS CASE, MYSELF AND MY ASSOCIATE. THE COURT: SOMEBODY IS GOING TO HAVE TO BE THERE. MR. RANDOLPH: I UNDERSTAND. I SPOKE WITH CAROLYN SAPPER WHO IS THE ATTORNEY FOR THE M.D.C. TODAY AND MR. SCHINDLER YESTERDAY. THE COURT: WORK IT OUT WITH MR. SCHINDLER. SOMEBODY HAS TO BE THERE. MR. RANDOLPH: I UNDERSTAND. THE COURT: SOMEONE WHO IS ACCOUNTABLE. MR. RANDOLPH: I UNDERSTAND. THE M.D.C. INDICATED THEY WOULD CONSIDER ALLOWING THE PARALEGAL TO SIT THERE RATHER THAN AN ATTORNEY. THE COURT: TALK IT OVER WITH MR. SCHINDLER. A 10 PARALEGAL WILL BE ALL RIGHT WITH ME AS LONG AS I KNOW THE IDENTITY OF THE PARALEGAL AND IT IS ALWAYS THE SAME PERSON. MR. RANDOLPH: I WILL WORK IT OUT. THAT WAS THE ONLY OTHER ITEM. MR. SHERMAN: THANK YOU, YOUR HONOR. MR. SCHINDLER: IN TERMS OF THE SEVERANCE MOTION ON MR. DEPAYNE -- THE COURT: HE HASN'T FILED IT. MR. SCHINDLER: I WANT TO MAKE SURE. WE WILL TAKE UP THAT IN THE FUTURE. THANK YOU, YOUR HONOR.