MR. RANDOLPH: WELL, YOUR HONOR, I THINK THAT THAT LAST POINT IS NOT
CORRECT.
THE REASON THAT -- THE ONLY REASON THAT THE GOVERNMENT
IS ABLE TO CLAIM THAT THAT INFORMATION IS RELEVANT TO
WHAT THE COURT IS CONSIDERING HERE TODAY IS IF MR.
MITNICK WAS ON SUPERVISED RELEASE AFTER -- A DAY AFTER
DECEMBER 7, 1992, AND THE GOVERNMENT AD THE COURT HAS
(7)
SAID WELL WHAT IF WE JUST DON'T CONSIDER THOSE.
THE COURT: NO, YOU DON'T CONSIDER THOSE VIOLATIONS.
WHAT IF WE DO NOT CONSIDER 3 AND 6 AS VIOLATIONS.
MR. RANDOLPH: I UNDERSTAND.
THERE IS A SECOND POINT, AND THAT IS, BECAUSE THE
GOVERNMENT HAS ARGUED IN ITS SENTENCING PAPERS --
IN FACT, THAT WAS THE FIRST DOCUMENT THAT I HAD TO
DEAL WITH WHEN I CAME INTO THIS CASE IN WHICH THEY
ARGUED THAT MR. MITNICK WHILE ON SUPERVISED RELEASE
WAS A FUGITIVE AND CONTINUED TO VIOLATE SUPERVISED
RELEASE, UNDER THEIR THEORY THAT SUPERVISED RELEASE
NEVER ENDED BUT CONTINUED UP UNTIL -- I SUPPOSE AS HE
IS SITTING HERE TODAY.
THE COURT: BUT I AM SAYING TO YOU THAT I WOULD PROPOSE TO
SENTENCE HIM AS IF I WOULD ACCEPT ALL OF YOUR
ARGUMENTS AND SAY THAT WE ARE NOT GOING TO LOOK AT IT
AS IF HE HAD BEEN ON SUPERVISED RELEASE PAST THE
POINT -- THE DATE THAT YOU ARE ARGUING.
MR. RANDOLPH: I UNDERSTAND. ALL RIGHT.
THE COURT: SO YOU WOULD NOW BE LOOKING AT VIOLATIONS 1 AND 2.
NOW MR. PAINTER WOULD SAY TO YOU, MR. RANDOLPH, THAT
WHEN A PERSON IS SENTENCED ON SUPERVISED -- A
VIOLATION OF SUPERVISED RELEASE, THE SENTENCING
JUDGE MAY LOOK AT THAT INDIVIDUAL AS A COMPLETE
PERSON.
(8)
MR. RANDOLPH: BUT THEN THE QUESTION --
THE COURT: THAT IS THE ARGUMENT HE WILL MAKE.
HE WILL MAKE THE ARGUMENT THAT WE ALWAYS LOOK AT ALL
THE FACTS AND CIRCUMSTANCES THOUGH WE ONLY LOOK AT THE
ALLEGED VIOLATIONS.
MR. RANDOLPH: I UNDERSTAND. THEN I GUESS THE QUESTION I HAVE IS
THE GOVERMENT HAS MADE A NUMBER OF ACCUSATIONS. IN
FACT, THE VAST MAJORITY OF THEIR ACCUSATIONS DEAL
WITH NOT WHAT MR. MITNICK ALLEGEDLY ADMITTED TO IN
ITEMS ONE AND TWO BUT WHAT HE ALLEGEDLY DID AFTER
DECEMBER 7TH, 1992.
IN FACT, THE PLEADINGS ARE FULL OF THAT TYPE OF
INFORMATION, AND SO THE ISSUE IS WHETHER THE COURT
CAN CONSIDER FOR PURPOSES OF SENTENCING FOR A
VIOLATION OF SUPERVISED RELEASE WHICH TERMINATED ON
DECEMBER 7TH, 1992 -- WHETHER THE COURT CAN CONSIDER
EVERYTHING THAT MY CLIENT ALLEGEDLY DID BETWEEN THE
EXPIRATION DATE OF SUPERVISED RELEASE AND TODAY'S
DATE, AND I WOULD -- MY BELIEF IS, NUMBER ONE, THAT
IT CANNOT.
I CANNOT THINK OF A MANNER IN WHICH THAT INFORMATION
CAN BE PRESENTED BECAUSE IT CONTAINS ALLEGATIONS OF
CRIMINAL ACTIVITY WHICH OCCURRED AFTER SUPERVISED RELEASE
OCCURRED, AND THE ONLY REASON THAT WE ARE HERE TODAY AS
OPPOSED TO THREE YEARS AGO IS BECAUSE UNDER 3583(I) THE
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COURT HAS DELAYED REVOCATION AUTHORIZATION.
THE COURT: I CERTAINLY DO.
MR. RANDOLPH: YES. IT IS AS IF THIS HEARING OCCURRED --
THE COURT: THIS HAPPENS ALL THE TIME.
MR. RANDOLPH: BUT WHETHER THE COURT CAN CONSIDER THE ALLEGATIONS
THAT THE GOVERNMENT HAS MADE AS VIOLATIONS OF
SUPERVISED RELEASE BUT AT THIS POINT IN TIME NOT
NECESSARILY AS VIOLATIONS OF SUPERVISED RELEASE BUT
SIMPLY AS ALLEGATIONS OF BAD ACTS, I CANNOT CONCEIVE
OF THE AUTHORITY FOR THE COURT TO CONSIDER THAT
EXCEPT APPLICATION NOTE TWO OF 7 (B) 1.4, AND WHAT
THAT APPLICATION NOTE CONSIDERS, YOUR HONOR, IS AN
UPWARD DEPARTURE MAY BE WARRANTED WHERE HE HAS BEEN
SENTENCED FOR AN OFFENSE THAT IS NOT THE BASIS OF A
VIOLATION PROCEEDING.
OF COURSE, WE ARE DEALING WITH THAT IN THIS CASE
WITH RESPECT TO THE NORTH CAROLINA CASE, BUT THE BEHAVIOR
WE ARE TALKING ABOUT CONSISTS OF ALLEGATIONS OF BEHAVIOR
AFTER SUPERVISED RELEASE ENDED AND FOR WHICH HE HAS NOT
BEEN PROSECUTED NOR HAVE THE ALLEGATIONS GONE BEYOND THE
ALLEGATION LEVEL, PUTTING ASIDE THE ISSUE OF WHETHER WE
HAVE BEEN PROVIDED DISCOVERY FOR THESE ALLEGATIONS, SO I
THINK THE ANSWER IS THAT THE COURT CANNOT CONSIDER THAT
BEHAVIOR.
THE COURT: WELL, LET ME PUT THIS QUESTION TO YOU. HE DID NOT FILE
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THE REPORTS, DID HE, AND HE DIDN'T FILE THE REPORTS
BEFORE THE EXPIRATION.
NOW, COULD I CONSIDER THAT?
MR. RANDOLPH: IF THOSE ALLEGATIONS WERE MADE THAT HE FAILED TO FILE
REPORTS AS PART --
THE COURT: BUT I CAN'T CONSIDER IT UNLESS THEY ARE ALLEGED.
MR. RANDOLPH: I THINK THAT'S TRUE, YES.
THE COURT: IS THAT YOUR POSITION?
MR. RANDOLPH: YES.
THE COURT: WELL --
MR. RANDOLPH: BUT PARTICULARLY WITH RESPECT TO ACTIVITY -- ALLEGED
ACTIVITY WHICH OCCURRED AFTER SUPERVISED RELEASE --
THE COURT: THIS DIDN'T OCCUR AFTER.
MR. RANDOLPH: NO, I AGREE. THE FAILURE TO FILE REPORTS OCCURRED THREE
BEFOREHAND. I AGREE.
THE COURT: ALL RIGHT. SO NOW THAT IS WHAT YOU HAVE TO ARGUE WHEN
WE GET TO THAT, BUT WE ARE NOT THERE.
MR. PAINTER: RIGHT. THE GOVERNMENT IS PREPARED TO DO THAT, YOUR HONOR.
THE COURT: ALL RIGHT.
NOW, THE NEXT MOTION IS THE MOTION TO STAY.
I'VE RESOLVED THE FIRST ONE BECAUSE I'M NOT STRIKING
THEM. I AM ONLY GOING TO SENTENCE HIM AS IF ALL THE
CONDUCT I AM SENTENCING ON OCCURRED PRIOR.
IT IS ONLY THE ALLEGATIONS IN 1 AND 2 THAT ARE PRIOR
TO THE EXPIRATION OF SUPERVISED RELEASE.
(11)
MR. RANDOLPH: ALL RIGHT. ALL RIGHT. I UNDERSTAND.
THE COURT: ALL RIGHT.
MR. PAINTER: AND FOR CLARITY, YOUR HONOR, WE WILL BE ARGUING THAT
IGNORING THE WARRANT AFTER IT WAS ISSUED STILL CAN BE
CONSIDERED BY THE COURT.
THE COURT: THAT'S RIGHT. YOU CAN ARGUE THAT ALL YOU WANT TO.
MR. RANDOLPH: WELL, AM I -- MAYBE I AM --
THE COURT: HE IS GOING TO ARGUE THAT THE COURT CAN TAKE INTO
CONSIDERATION ALL OF THE OTHER CIRCUMSTANCES HERE.
YOU ARE GOING TO ARGUE THAT THE COURT CANNOT DO THAT,
AND WHEN IT IS OVER IT IS OVER AND AFTER THAT YOU CAN'T
CONSIDER IT AT THE SENTENCING.
NOW, YOU WANT TO STAY THE SENTENCING HEARING, DO YOU?
MR. RANDOLPH: THE RULE 20 -- I'M SORRY. THE SENTENCING HEARING IN THE
SUPERVISED RELEASE OR ARE WE TALKING ABOUT THE --
THE COURT: WE HAVE TWO SENTENCINGS.
MR. RANDOLPH: YES.
THE COURT: NOW, WHAT WE ARE STRUGGLING FOR, MR. RANDOLPH, IS
NOTHING WHICH IS AMBIGUOUS. WE ARE STRUGGLING ONLY FOR
CLARITY HERE.
I HAVE THREE WHOLE BOXES OF DOCUMENTS HAVING TO DO
WITH MR. MITNICK. IT TAKES A LONG TIME TO GO THROUGH
THOSE.
MR. RANDOLPH: I UNDERSTAND.
THE COURT: SO HERE IS THE CLARIFICATION. FIRST OF ALL, I AM
(12)
SENTENCING ON THE VIOLATION OF SUPERVISED RELEASE --
MR. RANDOLPH: I UNDERSTAND.
THE COURT: -- AND ONE AND TWO.
THE SECOND THING I AM SENTENCING HIM ON IS THE NORTH
CAROLINA ALLEGATION TO WHICH HE HAS PLEADED GUILTY.
MR. RANDOLPH: YES, I UNDERSTAND. WITH RESPECT ON THE SECOND ONE THEN --
THE COURT: YES. YOU DON'T WANT THE COURT TO SENTENCE TODAY.
MR. RANDOLPH: NO, I DO NOT, YOUR HONOR. I DON'T. IF THE COURT -- I CAN
ARTICULATE THAT, BUT I THINK I SET FORTH IN MY PAPERS IN
GREAT DETAIL WHY WE THOUGHT THAT THAT WOULD BE
APPROPRIATE TO STAY PARTICULARLY IN LIGHT OF THE PENDING
INDICTMENT BECAUSE WE FELT IT WAS RELEVANT CONDUCT AND
THE GUIDELINES REQUIRE THAT THOSE TWO FACTUAL SCENARIOS
BE CONSIDERED TOGETHER, AND SECONDLY, MORE OR LESS
EQUALLY IMPORTANT IS BECAUSE OF THE OUTSTANDING DISCOVERY
ISSUES WHICH IS THE OTHER MOTION THAT IS STILL PENDING,
BUT YES.
IN DIRECT ANSWER TO YOUR QUESTION I AM REQUESTING THAT
THAT MATTER BE STAYED.
THE COURT: WHAT DISCOVERY IS STILL PENDING?
MR. RANDOLPH: MAY I HAVE A SECOND, PLEASE?
THE COURT: I COULD HARDLY BELIEVE THAT ANYTHING IS STILL PENDING.
MR. RANDOLPH: THE SITUATION IS AS FOLLOWS, YOUR HONOR.
THE COURT: NO. WHAT HASN'T BEEN RULED ON?
MR. RANDOLPH: ALL RIGHT.
(13)
THE EX PARTE APPLICATION FOR DISCOVERY REQUESTED
SPECIFIC ITEMS OF DISCOVERY. I BELIEVE IT IS ITEMS --
WITH RESPECT TO THE SECOND SENTENCING, THAT IS ITEMS 4
THROUGH 12.
THOSE ITEMS ARE THE SUBJECT MATTER, BY AND LARGE, OF
THE COMPETING DECLARATIONS AND PLEADINGS FROM BOTH THE
GOVERNMENT AND MYSELF. ONE THING HAS BEEN CLARIFIED
WHETHER --
THE COURT: NOW YOU UNDERSTAND, MR. PAINTER, THAT WHAT HE IS TALKING
ABOUT -- LET ME TELL YOU THE TITLE OF IT. IT IS AN EX
PARTE APPLICATION FOR DISCOVERY REGARDING SENTENCING.
MR. PAINTER: YES, YOUR HONOR, AND THE GOVERNMENT RESPONDED TO THAT ON
THE COURT'S REQUEST LAST WEDNESDAY.
MR. RANDOLPH: AND THEN WE DID GET THEIR PLEADING ON WEDNESDAY AND
WITHIN 24 HOURS WE FILED OUR RESPONSE TO THAT.
THE UP-SHOT OF THAT, YOUR HONOR, IS THE GOVERNMENT'S
POSITION WHICH I DO COMPLETELY UNDERSTAND AT THIS POINT
IN TIME IS THAT SOME OF THOSE MATERIALS THAT WE
REQUESTED, AND I TAKE IT NOT ALL, SOME OF THOSE
MATERIALS ARE CONTAINED IN THE--WHAT IS CALLED EITHER
THE COMPUTER DISCOVERY OR THE ELECTRONIC DISCOVERY.
I UNDERSTAND THAT THIS DISCOVERY CONSISTS OF IN EXCESS
OF TWO HUNDRED MILLION DOCUMENTS WHICH HAVE BEEN PLACED
ON COMPUTERS.
THE COMPUTERS ARE NOT--IT IS NOT READILY AVAILABLE.
(14)
IN OTHER WORDS, YOU CAN'T PUT A DISK IN AND GET IT FROM
A LOG. IT DESCRIBES ALL THE DISCOVERY. SOME OF THIS
MATERIAL IS ENCRYPTED. SOME OF THIS MATERIAL IS
CONTAINED ON OLD COMPUTERS WHICH REQUIRE A
SOPHISTICATED SET-UP EVEN IN ORDER TO BE ABLE TO
WITHDRAW IT FROM THE COMPUTERS.
AFTER LAST THURSDAY A REPRESENTATIVE OF MY OFFICE HAD
ACCESS TO THE COMPUTERS AND HAD A DISCUSSION WITH THE
AGENT, AND THAT DISCUSSION IS CONTAINED IN THE
DECLARATION OF MICHELLE CARSWELL WHICH WE FILED THE
FOLLOWING DAY, ON FRIDAY.
SUFFICE IT TO SAY, YOUR HONOR, THAT ACCEPTING THE
GOVERNMENT'S REPRESENTATION THAT SOME OF THAT DISCOVERY
IS ELECTRONIC DISCOVERY ON THE COMPUTERS, I BELIEVE, AND
I THINK THE GOVERNMENT WILL SUPPORT MY PRESENTATION AT
LEAST IN THIS REGARD, THAT IN ORDER TO ACCESS THAT
MATERIAL IT IS GOING TO REQUIRE A COMPUTER EXPERTISE
BEYOND THE LEVEL THAT I HAVE IN MY OFFICE, THAT IN ORDER
TO BE ABLE TO ACCESS IT AND THEN MAKE ARRAGEMENTS FOR MY
CLIENT TO OBSERVE IT, IT IS GOING TO REQUIRE THE
COOPERATION OF THE METROPOLITAN DETENTION CENTER.
THE COURT: WHERE YOU WANT A COMPUTER CENTER SET UP FOR MR. MITNICK
TO REVIEW EVERYTHING THAT THE GOVERNMENT COULD GIVE TO
YOU AND THAT COMPUTER CENTER HE HAS GOT TO HAVE THE TIME
AND ALL THE FACILITIES TO REVIEW IT SIMPLY SO HE CAN BE
(15)
SENTENCED ON THE ONE COUNT THAT HE PLEADED TO IN NORTH
CAROLINA.
MR. RANDOLPH: WELL, THE--
THE COURT: THAT'S RIGHT; ISN'T IT?
MR. RANDOLPH: YES, IT IS, YOUR HONOR. IT IS NOT NECESSARILY--SOME OF
THAT EVIDENCE WILL ALSO BE RELEVANT TO THE PENDING
INDICTMENT, I SHOULD SAY, AND I SUSPECT THAT THE--
THE COURT: WELL, WE ARE NOT ON THE PENDING INDICTMENT.
MR.RANDOLPH: I UNDERSTAND.
THE COURT: WE ARE NOT ON THE PENDING INDICTMENT AT ALL.
MR. RANDOLPH: OF COURSE.
THE COURT: AS IT TURNS OUT, THE APPREHENSION THAT WE ALL HAD WAS
JUSTIFIED.
I DON'T THINK I COULD--I DON'T THINK THAT THE COURT COULD
PERMIT THAT EVEN IF THE M.D.C. WOULD PERMIT IT.
(17)
MR. RANDOLPH: I UNDERSTAND. WHEN I WAS HAVING--
THE COURT: NOW YOU ALSO WAS TO REMEMBER THAT IT IS RARE FOR THE
COURT TO ORDER THE EXPENDITURE OF THE VAST AMOUNTS OF
SUMS THAT YOU ARE ASKING FOR ATTORNEYS FEES HERE JUST
FOR SENTENCING.
THIS IS A LARGE AMOUNT OF MONEY, AND IT WOULD BE
INCREASED--I AM NOT SURE I KNOW HOW MUCH--BY THE
CREATION OF A COMPUTER CENTER FOR MR. MITNICK IN
CONNECTION WITH HIS SENTENCING.
MR. RANDOLPH: YOUR HONOR--
THE COURT: NOW HE PLEADED GUILTY.
MR. RANDOLPH: YES, HE DID.
THE COURT: AND IT IS ONE COUNT FOR NORTH CAROLINA.
I AM JUST WONDERING HOW YOU THINK YOU CAN JUSTIFY THIS.
MR. RANDOLPH: WELL, LET ME PROPOSE AN ALTERNATIVE. FIRST, YOUR HONOR,
AND ALTHOUGH I WOULD VERY MUCH LIKE TO ADDRESS THE COURT
ON THE ISSUE OF ATTORNEYS FEES, ALTHOUGH NOT IN THE
PRESENCE OF THE GOVERNMENT--
THE COURT: NO. I AM NOT GOING BEYOND JUST MAKING THE COMMENT TO YOU
THAT WE ARE NOW TALKING ABOUT HAVING SOMEONE FROM YOUR
OFFICE APPOINTED TO GO OVER THERE AND SET UP A COMPUTER
CENTER FOR MR. MITNICK SO THAT HE CAN LOOK AT ALL THIS
MATERIAL AND DECIDE WHAT HE WANTS YOU TO SAY ABOUT THE
SENTENCING ON THE ONE COUNT TO WHICH HE PLEADED IN NORTH
CAROLINA.
(18)
MR. RANDOLPH: WHAT THE--LET ME SAY WHAT I AM CONCERNED ABOUT AND THEN
MAKE A PROPOSAL.
THE CONCERN THAT I HAVE THAT I HAVE ARTICULATED IN MY
PAPERS IS NOT ACTUALLY FROM THE GOVERNMENT BECAUSE I KNOW
THE GOVERNMENT IS GOING TO STAND UP AND ASK THE COURT TO
FOLLOW THE PLEA AGREEMENT, AND IT IS FROM THE--WHAT I
WOULD CONSIDER TO BE EXTRANEOUS INFORMATION WHICH IS IN
THE P.S.R. THAT--AND THEN THAT COUPLED WITH THE COMMENT
AT THE END CONCERNING GROUNDS FOR A DEPARTURE.
IT IS THOSE TWO ITEMS IN CONJUNCTION, YOUR HONOR, WHICH
HAS GIVEN ME ALARM TO THINK THAT THERE IS A VAST AMOUNT
OF MATERIAL THAT RELATES TO THESE ITEMS IN THE P.S.R.
THAT WERE NOT PRESENTED BY THE GOVERNMENT AND THE
GOVERNMENT IS NOT GOING TO ARGUE THEM.
NONETHELESS, THEY SIT THERE--FLOATING THERE AND I AM--
WITHOUT THE INFORMATION AND WITHOUT THE DISCOVERY, I AM
HARD-PRESSED TO TAKE A POSITION WITH RESPECT TO WHETHER
THEY ARE TRUE OR NOT.
OF COURSE, I KNOW WHAT MY CLIENT SAYS ABOUT THEM.
THE COURT: WELL, I DON'T KNOW WHAT YOUR CLIENT HAS TOLD YOU ABOUT
THEM, BUT SOMETHING MOTIVATED YOUR CLIENT TO ENTER INTO
A PLEA AGREEMENT IN NORTH CAROLINA AND PLEAD GUILTY TO
ONE COUNT; ISN'T THAT TRUE?
MR. RANDOLPH: IT IS, YOUR HONOR.
THE COURT: WELL THEN, HE MUST KNOW WHAT THE FACTS ARE.
(19)
MR. RANDOLPH: I AM SURE THAT MY CLIENT, YOUR HONOR NOR HIS COUNSEL AT
THE TIME--I AM SURE THEY DIDN'T EXPECT THE VAST ARRAY OF
ALLEGATIONS WHICH WERE NOT A PART OF THE NORTH CAROLINA
ALLEGATIONS TO APPEAR IN THE PRESENTENCE REPORT.
THE COURT: WELL, YOU CAN ASK TO HAVE THOSE STRICKEN.
MR. RANDOLPH: THAT'S TRUE, AND I SUPPOSE IF THE COURT WAS OF A MIND TO
STRIKE THOSE ALLEGATIONS THAT RELATED TO ANY INFORMATION
OUTSIDE OF THE ALLEGATIONS FROM NORTH CAROLINA, I AM SURE
THE GOVERNMENT WOULD HAVE NO OBJECTION BECAUSE THAT IS
CONSISTENT WITH THEIR PLEA AGREEMENT.
UNDER THOSE CIRCUMSTANCES, THEN THE DISCOVERY REQUEST
WOULD PERSIST ONLY TO THE EXTENT THAT IT WAS RELEVANT TO
THE PENDING INDICTMENT RATHER THAN THE SENTENCING.
THE COURT: WELL, WE ARE NOT ADDRESSING THE PENDING INDICTMENT YET.
MR. RANDOLPH: I UNDERSTAND. ALL RIGHT. IF THOSE ITEMS WERE STRICKEN,
YOUR HONOR, THEN WHAT I WOULD REQUEST --MY PROPOSAL WOULD
BE LIMITED. AT THIS TIME FOR DISCOVERY I WOULD NOT ASK TO
SET UP THE ENTIRE COMPUTER SYSTEM THAT I HAVE BEEN
DISCUSSING WITH THE M.D.C. AT THIS TIME. I WOULD PARE
BACK MY REQUEST FOR DISCOVERY CONSIDERABLY TO JUST THE
ITEMS WHICH TO THE EXTENT THAT THE GOVERNMENT CONTINUED
TO ARGUE THAT THIS SHOWED--PROVIDED ANY SUPPORT WHATSOEVER
FOR AN ENHANCEMENT BEYOND WHAT-- WELL, IT DEPENDS ON HOW
EXTENSIVE THIS COURT'S STRIKING OF THE PARAGRAPHS WOULD
BE.
(20)
IF EVERYTHING WAS STRICKEN WITH THE EXCEPTION OF THE
ALLEGATIONS FROM NORTH CAROLINA, THEN I THINK THE
DISCOVERY --WE CAN PUT IT OVER TO THE NEXT CASE. I WOULD,
OF COURSE, ASK FOR BRADY MATERIAL AND--
THE COURT: BUT I AM--I AM NOT--WE ARE NOT LOOKING AT A NEW
INDICTMENT.
MR. RANDOLPH: I UNDERSTAND. I AM TALKING ABOUT BRADY MATERIAL EVEN WITH
RESPECT TO THE NORTH CAROLINA ALLEGATIONS. TO THE--WELL--
THE COURT: HE HAS PLEADED GUILTY IN NORTH CAROLINA.
MR. RANDOLPH: RIGHT.
THE COURT: YOU CAN'T HAVE BRADY MATERIAL ON SOMETHING WHERE HE HAS
PLEADED GUILTY.
MR. RANDOLPH: ALL RIGHT, YOUR HONOR.
YOU ARE ABSOLUTELY RIGHT.
IF THE COURT STRUCK ALL OF THE NON NORTH CAROLINA
ALLEGATIONS, THEN I WOULD WITHDRAW THE DISCOVERY REQUEST
AT THIS TIME, DO THAT SENTENCING AND THEN DEAL WITH THE
PENDING INDICTMENT FROM THAT POINT ON.
THE COURT: NOW, YOU WAIT ONE MINUTE BECAUSE I DON'T WANT TO KEEP ALL
THESE LAWYERS.
MR. PAINTER: CERTAINLY, YOUR HONOR.
THE COURT: SO LET'S SEE WHAT YOU HAVE AGREED TO.
(OTHER COURT MATTERS.)
THE CLERK: UNITED STATES VERSUS KEVIN MITNICK.
THE COURT: ALL RIGHT, MR. PAINTER.
(21)
MR. PAINTER: BRIEFLY.
THE COURT: IS THERE ANYTHING AT ALL WHICH THE COURT SAID THAT ISN'T
CLEAR?
MR. PAINTER: NO, YOUR HONOR.
THE COURT: ALL RIGHT.
MR. PAINTER: AND THE GOVERNMENT HAS LONG TOLD MR. RANDOLPH, AND AS
YOUR HONOR HAS SEEN IN THE GOVERNMENT'S OPPOSITION TO THE
APPLICATION FOR DISCOVERY, THAT IN THE GOVERNMENT'S VIEW
THE DISCOVERY THAT HE IS REQUESTING HAS (A), BEEN A VERY
LONG TIME AVAILABLE TO HIM, AND (B), IT IS NOT REALLY
RELEVANT FOR THE SENTENCING, OVER AND ABOVE THE FACT THAT
CELL PHONES WERE USED BY THE DEFENDANT. THEY WERE USED
AND POSSESSED BY THE DEFENDANT, AND SO THE GOVERNMENT
CERTAINLY IS NOT ASKING FOR AN UPWARD DEPARTURE. I THINK
THE COURT HAS REVIEWED THE--
THE COURT: WELL, THE RANGE IS 2 TO 8.
MR. PAINTER: RIGHT. THE GOVERNMENT HAS ARGUED FOR THE HIGH END OF THE
RANGE AS YOUR HONOR HAS SEEN IN ITS PAPERS BASED NOT ON
THIS CONDUCT BUT BASED ON A NUMBER OF OTHER FACTORS, AND
THAT IS WHAT THE GOVERNMENT IS RESTING ITS ARGUMENT THERE
FOR.
THE ONLY CONCERN I WOULD HAVE, YOUR HONOR, IS EVERYTHING
THAT IS IN THE PRESENTENCE REPORT IS TAKEN FROM AN
AFFIDAVIT THAT SUPPORTED THE ARREST WARRANT FOR THE
DEFENDANT.
(22)
THE GOVERNMENT BELIEVES ALL THAT IS ACCURATE. HOWEVER,
THE GOVERNMENT IS NOT RELYING ON THAT INFORMATION EXCEPT
FOR THE FACT THAT WE ARE RELYING ON THE INFORMATION THAT
HE POSSESSED OVER 100 CELLULAR CODE PHONES. THAT IS IN
PARAGRAPH 16. ALSO THOSE CODES WERE USED TO ACCESS
TELEPHONE SYSTEMS AND WHAT ELSE WAS FOUND THERE.
ONE THING THAT I DID NOT HAVE ACCESS TO ON FRIDAY WHICH
THE COURT REPORTER WAS ABLE TO TRANSCRIBE AND GIVE ME
TODAY WAS DEFENDANT'S CHANGE OF PLEA BACK IN APRIL OF '96
AND IN THAT HE SPECIFICALLY ADMITS TO NOT ONLY POSSESSING
OVER 100 CELLULAR PHONE CODES BUT ACTUALLY USING THOSE
CODES TO ACCESS CELLULAR SYSTEMS, AND I HAVE A COPY OF
THOSE PAGES FOR THE COURT IF THE COURT WOULD LIKE TO SEE
THEM.
THE COURT: I DON'T NEED THEM.
MR. PAINTER: ARE THERE ANY QUESTIONS YOUR HONOR HAS OF THE GOVERNMENT?
THE COURT: NO. ALL RIGHT. BEFORE WE GO BACK--NOW LET'S GO BACK
BECAUSE I HAVE TOLD YOU WHAT I AM GOING TO DO ON THE
SUPERVISED RELEASE VIOLATIONS. MR. RANDOLPH: I UNDERSTAND.
THE COURT: AND I AM NOT GOING TO STAY THE SENTENCING HEARING.
MR. RANDOLPH: THE NORTH CAROLINA SENTENCING.
THE COURT: RIGHT.
MR. RANDOLPH: ALL RIGHT.
THE COURT: WELL, I HAVE NO OTHER--I AM GOING TO DO THE SUPERVISED
RELEASE AND THE NORTH CAROLINA. THAT IS ALL I HAVE.
(23)
MR. RANDOLPH: WELL, I HAD ASKED TO STAY BOTH SO I WAS JUST CLARIFYING,
YOUR HONOR.
THE COURT: YES.
MR. RANDOLPH: WILL THE COURT THEN BE LIMITING, THOUGH, THE INFORMATION
THAT IT CONSIDERS IN THE NORTH CAROLINA SENTENCING TO
ALLEGATIONS ARISING FROM ACTS IN NORTH CAROLINA AND NOT
FROM THE OTHER EXTRANEOUS MATERIAL THAT--FOR WHICH I HAVE
NOT RECEIVED THE DISCOVERY AND FOR WHICH THE GOVERNMENT
IS NOT ARGUING?
THE COURT: WELL, I DON'T KNOW WHAT THAT MEANS.
MR. RANDOLPH: THE PARTIES STIPULATED THAT FOR PURPOSES OF RELEVANT
CONDUCT THE GOVERNMENT WOULD NOT PRESENT INFORMATION AND
WOULD REQUEST THAT THE COURT NOT CONSIDER ANY ACTS
OUTSIDE OF THE NORTH CAROLINA PLEA.
THE COURT: ALL RIGHT.
MR. RANDOLPH: THE P.S.R. IN THE NORTH CAROLINA CASE CONTAINS A GREAT
DEAL OF INFORMATION BECAUSE THE PROBATION OFFICE IS NOT
BOUND BY THE STIPULATION BETWEEN THE PARTIES. IT IS THAT
INFORMATION WHICH IS THE SUBJECT MATTER IN THE MAIN OF MY
DISCOVERY REQUEST.
THE COURT: WELL, WE WILL CONTINUE THIS TO THE NORTH CAROLINA CONDUCT.
MR. RANDOLPH: ALL RIGHT.
MR. RANDOLPH: THEN FIRST, YOUR HONOR, I WILL ADDRESS THE NORTH CAROLINA
CASE--I'M SORRY--THE SUPERVISED RELEASE CASE.
I WONDER--NOT TO THROW A CURVE BALL IN THIS, YOUR HONOR,
BUT I BELIEVE THAT THE LAW DOES NOT ALLOW THE COURT TO
CONSIDER BEHAVIOR AFTER THE EXPIRATION OF SUPERVISED
RELEASE.
THE COURT: ALL RIGHT. WE WILL START THAT WAY.
MR. RANDOLPH: ALL RIGHT. I AM GOING TO--I KNOW THE COURT WANTS TO GO
FORWARD TODAY. I WONDER IF IT MAKES SENSE TO BRIEF THAT
ISSUE BECAUSE IT WILL--IT IS A SIGNIFICANT HALF OF WHAT
I HAVE TO SAY ABOUT MR. MITNICK. WHAT HAPPENED BEFORE
DECEMBER 7TH AND WHAT HAPPENED AFTERWARDS.
THE COURT: WELL, YOU CAN--YOU CERTAINLY CAN RELY ON THIS STATEMENT,
AND THAT IS, THAT AFTER ALL THE TIME I HAVE TAKEN IN THE
LAST THREE DAYS TO LOOK AT THIS PROBLEM, I BELIEVE I KNOW
EVERYTHING THAT THERE IS TO KNOW THAT IS IN WRITING ABOUT
WHAT TOOK PLACE.
MR. RANDOLPH: ALL RIGHT. THERE ARE RECOMMENDATIONS MADE BY THE PROBATION
OFFICE, AND ONE OF THE THINGS THAT IS OF CONCERN TO ME
THAT--SINCE THE PROBATION REPORTS AND THE RECOMMENDATIONS
WERE PREPARED BY MR. GULLA, THAT NOTWITHSTANDING THE
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COURT'S LIMITING TO ITEMS 1 AND 2, AND THE COURT
DEFERRING--I TAKE IT THAT THE COURT IS ALSO--I AM ALSO
BEING ALLOWED TO ARGUE AND THE COURT IS ACCEPTING FOR
PURPOSE OF SENTENCE, THAT SUPERVISED RELEASE EXPIRED ON
DECEMBER 7TH, 1992.
THE COURT: INDEED YOU ARE.
MR. RANDOLPH: ALL RIGHT. HAVING SAID THAT THEN, YOUR HONOR, THE ONLY
POINT I WILL MAKE WITH RESPECT TO MR. GULLA'S TESTIMONY
HAVE TO DO WITH WHETHER THE COURT CAN CONSIDER HIM A--
HIS ASSESSMENT OF THE CASE RELIABLE RATHER THAN GOING
INTO THE SPECIFICS OF WHETHER THINGS OCCURRED ON A CERTAIN
DATE OR NOT.
THE COURT: I DON'T UNDERSTAND THAT.
MR. RANDOLPH: MOST OF MY ARGUMENT INITIALLY WITH MR. GULLA WAS TO TRY
AND PROVE THAT CERTAIN THINGS OCCURRED ON DATES WHEN HE
SAID THEY DIDN'T.
AT THIS POINT IN TIME--
THE COURT: WE ARE GOING TO TAKE YOUR VERSION.
MR. RANDOLPH: ALL RIGHT. THE ONLY ADDITIONAL COMMENT I WOULD MAKE IN
THAT REGARD, YOUR HONOR, IS THAT I SPOKE TO MR. DEAN WHO
IS THE SUPERVISING PROBATION OFFICER IN THE PROBATION
OFFICE AND MR. GULLA'S SUPERVISOR WITH RESPECT TO THE
QUESTION OF WHETHER A CERTIFIED LETTER SHOULD BE SENT
UNDER THE CIRCUMSTANCES OF THE NOVEMBER 9TH LETTER OF
1992, AND MR. DEAN STATED THAT THEY DON'T HAVE A WRITTEN
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POLICY IN THAT REGARD BUT THE GENERAL PROCEDURE IS IF
THERE IS AN ISSUE AS TO WHETHER OR NOT THE SUPERVISEE
HAS CHANGED HIS LOCATION OR IS NO LONGER AT THAT ADDRESS,
THEN THE PRACTICE IS TO SEND A CERTIFIED LETTER BECAUSE
THAT WILL CONFIRM, IF THE CERTIFIED LETTER COMES BACK,
THAT THE PERSON WAS NOT THERE TO RECEIVE IT.
IN THAT REGARD, YOUR HONOR, I DIRECT THE COURT'S ATTENTION
TO THE NOTES THAT MR. GULLA PROVIDED WHICH HE REFERENCED,
AND HIS ENTRY OF 11-9-92 THAT HE WROTE IN HERE, "AT NEW OR
SAME RESIDENCE," AND IN HIS TESTIMONY HE INDICATED THAT
THERE WAS A QUESTION IN HIS MIND AT THAT TIME, AND THAT IS
WHY HE PUT THAT NOTE DOWN THERE.
UNDER THOSE CIRCUMSTANCES, IT IS MY BELIEF THEN THAT A
CERTIFIED LETTER PURSUANT TO THE POLICY OF THE PROBATION
OFFICE SHOULD HAVE BEEN SENT.
LET ME SKIP PAST MOST OF THIS ARGUMENT, YOUR HONOR. IT
HAD TO DO WITH WHEN EVENTS OCCURRED.
IN LIGHT OF THE COURT'S RULING, YOUR HONOR, I THINK AT
THIS POINT IN TIME I NEED TO GO TO WHAT SHOULD THE
SENTENCE BE UNDER THE GUIDELINES.
THE COURT: YES.
MR. RANDOLPH: LET ME JUST--I HAD A LOT TO SAY BEFORE THAT, YOUR HONOR,
AND I APOLOGIZE. ALL RIGHT.
YOUR HONOR, THE IRONY OF THE GOVERNMENT'S MEMORANDUM IN
ASKING FOR 24 MONTHS WHEREIN THE DEFENSE ASKS FOR 4 TO 10
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MONTHS IS THAT THE GOVERNMENT ARGUES THAT THE POLICY
STATEMENT IN THE GUIDELINES SHOULD BE FOLLOWED WITH
RESPECT TO GIVING A CONSECUTIVE SENTENCE.
AS THE COURT NOTES IN OUR PAPERS, WE HAVE SUBMITTED THAT
ISSUE TO THE COURT--WHETHER IT SHOULD BE CONSECUTIVE, BUT
WE HAVE ALSO ASKED THE COURT IN TERMS OF APPLYING THE
POLICY STATEMENTS TO BE EVEN-HANDED IN APPLYING THEM, AND
THE SECOND HALF OF THAT IS THAT THE POLICY STATEMENT CALLS
FOR A SENTENCE OF NO MORE THAN 4 TO 10 MONTHS, SO THE
GOVERNMENT IS ASKING THE COURT TO FOLLOW THE POLICY
STATEMENT WHEN IT IS CONVENIENT TO THE THE GOVERNMENT AND
TO REJECT IT IN TOTO WHEN IT IS NOT.
WITH RESPECT TO THE POLICY STATEMENT WHICH CALLS FOR A
SENTENCE OF 4 TO 10 MONTHS, THE GOVERNMENT THEN SUGGESTS
THAT YOU SHOULD GO BEYOND THAT STATEMENT BECAUSE
VIOLATION NUMBER ONE IN THE WARRANT--
THE COURT: NOW, LET'S ONCE AGAIN STICK WITH BEING VERY CLEAR.
MR. RANDOLPH: ALL RIGHT.
THE COURT: THE FOUR TO TEN MONTHS THAT YOU ARE TALKING ABOUT IS ON
WHICH?
MR. RANDOLPH: THAT IS WHAT THE POLICY STATEMENT IN THE GUIDELINES, YOUR
HONOR, CALLS FOR UNDER GUIDELINES CHAPTER 7B1.4, AND THAT
IS SET FORTH ALSO IN THE PROBATION RECOMMENDATIONS--THAT
THAT IS WHAT THE POLICY--THE GUIELINES CALL FOR. NOW,
THE--AND THAT THE REASON THAT IS, YOUR HONOR, IS FOR THE
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PURPOSE OF THE SUPERVISED RELEASE, IT IS A CRIMINAL
HISTORY CATEGORY TWO, AND IT IS A GRADE C VIOLATION.
IF IT WAS A GRADE B VIOLATION, YOUR HONOR, AND THE COURT
WILL RECALL AT FIRST MR. GULLA STATED THAT VIOLATION --
LLEGAL OR UNAUTHORIZED ACCESS INTO COMPUTERS WAS A GRADE
C. HE THEN CHANGED IT LATER ON WITHOUT ANY BRIEFING
AND CHANGED IT TO A GRADE B CLAIMING THAT HE HAD MADE A
MISTAKE.
VIOLATION NUMBER TWO--AND I DON'T WANT TO MAKE A MISTAKE,
YOUR HONOR. PERHAPS I SHOULD GET THE VIOLATIONS IN FRONT
OF ME.
VIOLATION NUMBER TWO IS THE ALLEGATION WHICH WAS ADMITTED
THAT MY CLIENT ASSOCIATED WITH MR. DEPAYNE.
THE COURT: HE ADMITTED ONE AND TWO.
MR. RANDOLPH: YES.
VIOLATION ONE WAS THE UNAUTHORIZED ACCESS TO THE PAC BELL
CONFIDENTIAL VOICE MAIL SYSTEM AND VIOLATION NUMBER TWO
WAS THE ADMISSION THAT HE MAINTAINED ASSOCIATION WITH
LEWIS DEPAYNE.
THE COURT: AND SO YOUR FIRST ARGUMENT IS THAT ON ONE IT IS 4 TO 10
MONTHS.
MR. RANDOLPH: ON ONE IT IS 4 TO 10 MONTHS, AND THE ARGUMENT IS, YOUR
HONOR, THAT IS A GRADE C VIOLATION, THAT MR. GULLA WAS
CORRECT WHEN HE FIRST SENT THE LETTER TO THE COURT DATED
AUGUST 25TH, 1995 IN WHICH HE SET THAT FORTH ONLY AS A
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GRADE C VIOLATION.
THE COURT: ALL RIGHT. NOW WE ARE ON NUMBER TWO.
MR. RANDOLPH: NUMBER TWO IS NOBODY HAS EVER ARGUED THAT IT WAS ANYTHING
BUT A GRADE C VIOLATION, SO IF THE COURT ACCEPTS OUR
ARGUMENT ON NUMBER ONE THAT IT IS A GRADE C, THIS COURT
UNDER THE GUIDELINES, YOUR HONOR, THE COURT IS TO ACCEPT
THE HIGHEST GRADE. IF THEY ARE BOTH GRADE C, THEN THE
GUIDELINES POLICY STATEMENT CALLS FOR--WITH A CRIMINAL
HISTORY OF TWO AND A GRADE C VIOLATION, IT CALLS FOR A
SENTENCE OF 4 TO 10 MONTHS.
PARENTHETICALLY, YOUR HONOR, IF THE COURT ACCEPTS THAT
THE VIOLATION REGARDING THE PAC BELL COMMUNICATIONS
SYSTEM WAS A B AS OPPOSED TO A C, THEN IT WOULD BE--THE
GUIDELINE RANGE WOULD BE 6 TO 12 MONTHS, SO TAKING
VIOLATION NUMBER ONE, THE PAC BELL VIOLATION, BASICALLY
IN OUR PLEADING WHAT I HAVE TRIED TO CONVINCE THE COURT
IS THAT MR. GULLA WAS CORRECT IN SAYING IT WAS A GRADE C
VIOLATION WHICH IS DEFINED AS CONDUCT CONSTITUTING A
FEDERAL, STATE OR LOCAL OFFENSE PUNISHABLE BY ONE YEAR OR
LESS, IN OTHER WORDS, A PETTY OFFENSE OR A MISDEMEANOR.
GRADE B HAS TO BE ONE YEAR OR MORE. MR. GULLA IN CLAIMING
THAT HE CAME TO A GRADE B VIOLATION AS HIS CONCLUSION
LIKENED VIOLATION NUMBER ONE TO CALIFORNIA PENAL CODE
SECTION 502 WHICH I HAVE ATTACHED TO OUR PLEADING AS
EXHIBIT B, BUT IF YOU LOOK AT THAT, YOUR HONOR, IN OUR
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PLEADINGS WE HAVE SUBMITTED TO THE COURT THAT WHAT MY
CLIENT DID WAS KNOWINGLY AND WITHOUT PERMISSION ACCESS
OR CAUSE TO BE ACCESSED A COMPUTER, COMPUTER SYSTEM OR
COMPUTER NETWORK, AND THAT IS A VIOLATION OF SECTION 502
(C) (7) AND CONSTITUTES AN INFRACTION OR A MISDEMEANOR
DEPENDING UPON VICTIM EXPENDITURE OR WHETHER IT IS A
SECOND OR SUBSEQUENT VIOLATION OF THAT CODE SECTION, SO
MR. GULLA LIKENING TO THIS CODE SECTION IN SETTING FORTH
THAT LANGUAGE IS AGREEING THAT MR. MITNICK HAS VIOLATED A
MISDEMEANOR.
NOW, IN ORDER TO GET THERE THE COURT HAS TO ASSUME THAT
A VOICE MAIL SYSTEM IS A COMPUTER, AND I CITED THE CASES
AND THE ANALYSIS FROM THE CALIFORNIA STATUTES THAT--AND I
CITED ONE CASE THAT WE HAD, YOUR HONOR, THAT THE
LEGISLATURE IN CALIFORNIA HAD NO INTENTION OF MAKING
EVERYTHING A COMPUTER, AND IF I CAN STEP BACK, ONE OF THE
PROBLEMS THAT MR. MITNICK FACES IN FIGHTING THE CHARGES
THAT HE HAS BEEN IN THIS COURT IS THAT THE WORD COMPUTER
IS USED WITHOUT ANY CLARIFICATION OR CLARITY AS TO WHAT
IS BEING DONE.
EVERYTHING THAT IS BEING DONE IS HAPPENING TO A COMPUTER
AND VIOLATING AND STEALING COMPUTER DATA, AND THIS IS A
PERFECT EXAMPLE OF IT WHEREIN WHAT HE REALLY DID, IF YOU
LOOK AT THE ALLEGATIONS, IF YOU LOOK AT THE FACTS OF WHAT
HE IS ALLEGED TO HAVE DONE RATHER THAN SIMPLY THE WORDS
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THAT A STATUTE SAYS IN THE ALTERNATIVE, IS THAT HE
WITHOUT PERMISSION ACCESSED THE VOICE MAIL SYSTEM AND
LISTENED TO VOICE MAIL.
THE FEDERAL STATUTE AGAIN DESIGNATES THIS SAME--HAS--
THERE IS A MORE RELEVANT FEDERAL STATUTE, YOUR HONOR,
WHICH DESIGNATES THE OFFENSE OF ILLEGAL ACCESS TO VOICE
MAIL, AND I HAVE SET IT FORTH ON PAGE 7, WITHOUT
AUTHORIZATION THROUGH AN ELECTRONICS COMMUNICATIONS
SERVICE.
THE FEDERAL STATUTE DESIGNATES THAT AS A PETTY OFFENSE.
I OFFER THOSE TWO EXAMPLES IN SUPPORT OF OUR ARGUMENT
THAT IT IS A GRADE C VIOLATION THAT HE ADMITTED TO, AND
IT SHOULD REMAIN SO.
THEN WE GO TO VIOLATION NUMBER 3, YOUR HONOR, WHICH IS--
THE COURT: NO
MR. RANDOLPH: I AM SORRY. THAT WAS--
THE COURT: WE ARE NOT GOING TO VIOLATION 3.
MR. RANDOLPH: I APOLOGIZE. THAT WAS VIOLATION NUMBER ONE.
VIOLATION NUMBER 2 IS THE ASSOCIATION WITH MR. DE PAYNE
WHICH AGAIN MY CLIENT ADMITTED TO, AND IT WAS IN
VIOLATION OF HIS SUPERVISED RELEASE TO BE SURE, AND THE
MITIGATION FACTOR THAT I SET FORTH TO YOUR HONOR NOT BY
WAY OF EXCUSING THE CONDUCT BUT SIMPLY AS A MITIGATING
FACTOR, THAT WHILE MR. MITNICK WAS STILL IN THE HALFWAY
HOUSE AND THEN SUBSEQUENT WHEN HE GOT OUT OF THE HALFWAY
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HOUSE HE STILL HAD A CLOSE RELATIONSHIP WITH HIS THEN
EX-WIFE OR ABOUT TO BE EX-WIFE BONNIE BATELLO, AND IT WAS
AT THAT TIME AS HE CONTINUED TO SEE BONNIE BATELLO THAT
THE ASSOCIATION WITH MR. DE PAYE BECAME A FACTOR BECAUSE
MISS BATELLO BY THEN WHILE MR. MITNICK HAD BEEN IN CUSTODY
AND THEN HE WAS IN THE HALFWAY HOUSE HAD SEVERED HER
MARRIAGE RELATIONSHIP WITH MR. MITNICK AND HAD--WAS NOW
LIVING WITH MR. DE PAYNE. AGAIN I OFFER THAT IN
MITIGATION, NOT AS AN EXCUSE, YOUR HONOR, BUT THAT IS A
GRADE C VIOLATION, AND I ASK THE COURT TO CONSIDER IT AS
SUCH.
WE SUGGEST THAT THE GOVERNMENT'S UPWARD DEPARTURE FROM--
IF THE COURT ACCEPTS MY ARGUMENTS IN TOTO FROM A RANGE 4
TO 10 OR EVEN IF THE COURT ACCEPTS THE GOVERNMENT'S
ARGUMENT THAT IT IS A GRADE B AND GOES FROM 4 TO 10 TO 6
TO 12, TO DOUBLE THE SENTENCE--IT IS ONE THING TO GIVE
THE HIGH END, YOUR HONOR, BUT IT IS ANOTHER THING TO TAKE
THE HIGH END AND THEN GO BEYOND THE POLICY STATEMENT OF
THE GUIDELINES AND DOUBLE IT WITH THE ACTIVITY THAT THIS
COURT HAS IN THE SUPERVISED RELEASE VIOLATION PRIOR TO
DECEMBER 7TH, 1992.
APPLICATION--THE GOVERNMENT IN ORDER TO GET TO THIS
REQUEST FOR AN INCREASE HAS TO GO TO APPLICATION NOTES 2
AND 3 OF SECTION 7(B)1.4. NOW, I DID MAKE A MISTAKE I
BELIEVE, YOUR HONOR, WHEN I WAS CLAIMING THAT--PAGE 10
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WITH RESPECT TO APPLICATION NOTE TWO.
I ARGUED THAT IF THE COURT FOUND THAT SOMEHOW THE HIGH
END OF THE RANGE WAS NOT SUFFICIENT AND THAT IT HAS TO
DEPART, I ASKED THE COURT TO SIMPLY MOVE DOWN A GRADE.
WELL, THAT WAS A MISTAKE ON MY PART BECAUSE APPLICATION
NOTE TWO DEALS WITH A SITUATION WHERE AFTER THE CONDUCT
OCCURRED THERE HAD BEEN SUBSEQUENT CRIMINAL VIOLATIONS
AND FOR WHICH--LET ME SEE.
APPLICATION NOTE TWO DEALS, YOUR HONOR, IN A SITUATION
WHERE A DEFENDANT SUBSEQUENT TO THE FEDERAL SENTENCING
RESULTING IN SUPERVISION HAS BEEN SENTENCED FOR AN
OFFENSE THAT IS NOT THE BASIS OF A VIOLATION PROCEEDING.
THE GOVERNMENT IS CLAIMING THAT APPLICATION NOTE TWO
APPLIES HERE.
I WOULD SAY THAT IT DOESN'T.
NUMBER ONE, STRICTLY TECHNICALLY SPEAKING, MR. MITNICK
HAS NOT BEEN SENTENCED IN THE NORTH CAROLINA CASE.
ONCE HE IS SENTENCED IT IS TRUE THAT HIS CRIMINAL HISTORY
WILL INCREASE ONE POINT AND IT WILL GO FROM CRIMINAL
HISTORY 2 TO CRIMINAL HISTORY 3, SO LET'S ASSUME THE
FOLLOWING SCENARIO.
HAD MR. MITNICK BEEN SENTENCED HAS WEEK, YOUR HONOR, IN
THE NORTH CAROLINA CASE, THEN APPLICATION NOTE TWO WOULD
BE APPLICABLE AND THE COURT WOULD BE APPROPRIATE IN
MOVING HIM FROM CRIMINAL HISTORY TWO UNDER 7 (B)1.4 TO
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CRIMINAL HISTORY 3 UNDER 7 (B)1.4.
IN CRIMINAL HISTORY 3, IT WOULD BE--IF IT WAS A GRADE C
WHICH, OF COURSE, WE HAVE URGED IT IS, IT IS 5 TO 11
MONTHS.
UNDER GRADE B IT IS 8 TO 14 MONTHS. SINCE HE HASN'T BEEN
SENTENCED THAT APPLICATION NOTE SHOULD NOT APPLY.
SECONDLY, YOUR HONOR, THE MOST IT SHOULD APPLY SINCE IT
DEALS WITH CRIMINAL HISTORY, AND I ASK THE COURT NOT TO
CONSIDER MY COMMENTS ON PAGE 10 OF THE MEMO, LINES 9
THROUGH 14 BECAUSE REALLY IF THE COURT IS OF A MIND THAT
IT DOES APPLY AND THAT NOTE TWO WOULD ONLY CREATE MOVING
TO THE RIGHT ON THE REVOCATION TABLE OR INCREASING HIS
CRIMINAL HISTORY FROM TWO TO 3.
SECONDLY, WE HAVE APPLICATION NOTE 3 WHICH THE GOVERNMENT
IS RELYING ON AND APPLICATION NOTE 3 TALKS ABOUT WHERE
YOU HAVE A GRADE C VIOLATION AS I AM ARGUING THAT YOU DO
HERE THAT IS ASSOCIATED WITH A HIGH RISK OF NEW FELONIOUS
CONDUCT AND THEN THEY TALK ABOUT CRIMINAL SEXUAL ABUSE--
THAT IS THE TYPE OF THING THAT THEY ARE TALKING ABOUT
THERE--THAT A DEPARTURE MAY BE WARRANTED.
NOW UNDER OUR CIRCUMSTANCES, YOUR HONOR, IN APPLICATION
NOTE 3 IT SHOULD--THE COURT SHOULD LOOK AT THE BEHAVIOR
THAT WE ARE TALKING ABOUT HERE AND FIRST OFF, IN RESPONSE
TO THE ASSOCIATION WITH MR. DE PAYNE AND IN THE ACCESS,
THAT IS WHAT IS--I THINK PROBATION WOULD AGREE IS A
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TECHNICAL VIOLATION, PARTICULARLY IN THE CIRCUMSTANCES
HERE.
IT WOULD BE--THE GOVERNMENT IS GOING TO ARGUE THAT THAT
ALONE--THE ASSOCIATION WITH MR. DE PAYNE WOULD CREATE A
HIGH RISK OF NEW FELONIOUS CONDUCT, NOT WHETHER IT DID OR
NOT AND NOT WHETHER THERE WAS CONDUCT BECAUSE THE CONDUCT
AFTER SUPERVISED RELEASE IS OVER HAS TO BE CONSIDERED IN
NEW INDICTMENTS AND NOT BY THIS COURT FOR THE PURPOSE OF
THE SUPERVISED RELEASE VIOLATION THAT IS BEING HEARD AFTER
THE TERMINATION DATE, BUT WE WOULD ARGUE, YOUR HONOR, THAT
THE COURT SHOULD NOT CONSIDER AN UPWARD ADJUSTMET BEYOND
WHICH WOULD BE APPLIED IF THE AT ISSUE RISK WAS REALIZED.
HERE WHAT THE ALLEGATION IS IS THAT HE ASSOCIATED WITH
MR. DE PAYNE AND THEREFORE COMMITTED THE VIOLATION WHICH
IS VIOLATION NUMBER ONE.
WE HAVE ARGUED THAT VIOLATION NUMBER ONE WHICH IS THE
CONDUCT THAT THEY ARE FOCUSING ON AND HAS TO BE FOCUSED
ON BECAUSE THAT IS THE OFFENSE IS ALSO A GRADE C AND IT
SHOULD CAUSE NO INCREASE, BUT EVEN IF THE COURT CONSIDERED
IT TO BE A GRADE B, THEN THE MOST IT SHOULD GO IS TO A
GRADE B.
THAT CONDUCT AT CRIMINAL HISTORY 3 WHICH I HAVE ARGUED IS
THE MOST THE COURT COULD GO TO UNDER APP. NOTE 2 AND GRADE
B WHICH IS THE MOST THE COURT COULD OR SHOULD GO TO UNDER
APP. NOTE 3 WOULD BE 8 TO 14 MONTHS.
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IT IS FOR THOSE REASONS, YOUR HONOR, THAT WE URGE THE
COURT TO NOT ENHANCE MY CLIENT BEYOND THE GUIDELINES AND
THAT IF THE COURT WAS OF A MIND TO ENHANCE HIM BEYOND THE
GUIDELINES PURSUANT TO APP. NOTES 2 AND 3 THAT 2 CAN ONLY
GO TO CRIMINAL HISTORY 3 AND APP. NOTE 3 SHOULD PROPERLY
ONLY GO TO A GRADE B VIOLATION UNDER 7(B)1.4 AND ANYTHING
BEYOND THAT IS INAPPROPRIATE UNDER THE CIRCUMSTANCES OF
THIS CASE.
THE COURT: SO THE MOST YOU COULD HAVE IS AN GRADE B.
MR. RANDOLPH: YES, YOUR HONOR, 8 TO 14 MONTHS.
THE COURT: THAT IS 8 TO 14 MONTHS.
MR. PAINTER: YOUR HONOR, IF IT WILL BE HELPFUL, I CAN COMMENT JUST ON
THAT ONE.
THE COURT: NO, IT WOULDN'T BE HELPFUL.
MR. RANDOLPH: SO, YOUR HONOR, FOR THE REASONS--
THE COURT: SO IT IS 4 TO 10 ON NORTH CAROLINA AND 8 TO 14. THESE ARE
MAXIMUMS I AM TALKING ABOUT.
MR. RANDOLPH: FROM MY READING, YES, YOUR HONOR, ACCORDING TO THE
DEFENSE, YES.
THE COURT: THE MAXIMUM IS 4 TO 10 ON NORTH CAROLINA.
MR. RANDOLPH: YES, YOUR HONOR.
THE COURT: AND 8 TO 14 ON THE SUPERVISED RELEASE.
MR. RANDOLPH: IF THE COURT REJECT THE OTHER ARGUMENTS I HAVE MADE, YES,
YOUR HONOR, THAT IS CORRECT.
THE COURT: ALL RIGHT.
MR. RANDOLPH: EVERYTHING ELSE I HAVE TO SAY HAS TO DO WITH THE FACT
THAT THE COURT CANNOT CONSIDER CONDUCT FOR PURPOSES OF
SUPERVISED RELEASE THAT OCCURS AFTER EXPIRATION OF
SUPERVISED RELEASE FOR THE PURPOSE OF A SENTENCE FOR A
VIOLATION OF SUPERVISED RELEASE.
THE COURT: I TOLD YOU THAT I WAS GIVING YOU THAT IN THE ARGUMENT.
MR. RANDOLPH: OH.
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THE COURT: NOW I WILL NOT FORECLOSE THE GOVERNMENT FROM SAYING WHAT
IT WANTS TO ABOUT THAT.
MR. RANDOLPH: ALL RIGHT. WELL--
THE COURT: FOR THE PURPOSE OF THE ARGUMENT I WILL GRANT THAT.
MR. RANDOLPH: THEN FOR PURPOSES OF--NOW THAT IS EVERYTHING I HAVE TO
SAY ABOUT SUPERVISED RELEASE. SHOULD I MOVE ON TO--
THE COURT: NO, THAT'S IT. THAT IS EVERYTHING YOU HAVE GOT TO SAY;
ISN'T IT?
MR. RANDOLPH: NO. I HAD SOME COMMENTS TO MAKE WITH RESPECT TO THE RULE
20 CASE, YOUR HONOR, THAT I HADN'T MADE YET.
THE COURT: ABOUT NORTH CAROLINA.
MR. RANDOLPH: YES, YOUR HONOR.
THE COURT: GO ON.
MR. RANDOLPH: ALL RIGHT. I THINK PERHAPS THE COURT MAY HAVE MISPOKEN.
THE GUIDELINE RANGE FOR THE NORTH CAROLINA CASE IS 2 TO 8
MONTHS AS AGREED ON BY THE PARTIES.
THE COURT: NOW, JUST A MINUTE. LET'S STAY WITH THIS NOTION OF
CLARITY.
THE COURT SAID TO YOU, "SO IT IS YOUR POSITION THAT IT IS
4 TO 10 MONTHS ON NORTH CAROLINA," AND I WAS TALKING
ABOUT THE MAXIMUM.
MR. RANDOLPH: ALL RIGHT.
THE COURT: SO IT IS YOUR POSITION.
MR. RANDOLPH: I AM SORRY.
THE COURT: THE COURT WAS REPEATING YOUR POSITION.
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MR. RANDOLPH: YOU ARE CORRECT, YOUR HONOR.
THE COURT: NOW LET'S STAY RIGHT WITH--LET'S KEEP THE RECORD AS CLEAR
AS WE CAN.
MR. RANDOLPH: LET ME--IF I MAY TAKE A MINUTE AND SAY IT AGAIN.
MY POSITION WITH RESPECT TO THE SUPERVISED RELEASE IS
THAT WE BELIEVE THE APPROPRIATE--
THE COURT: I KNOW WHAT YOU THINK IS APPROPRIATE. I SAID TO YOU THE
MOST--THE MAXIMUM WOULD BE 8 TO 14 MONTHS.
MR. RANDOLPH: THAT'S CORRECT. THAT IS OUR POSITION.
THE COURT: AND THEN I SAID TO YOU, "AND THE MOST --THE MAXIMUM ON
NORTH CAROLINA NO MATTER WHICH WAY YOU LOOK AT IT WOULD
BE 4 TO 10 MONTHS.
MR. RANDOLPH: I MISSPOKE, YOUR HONOR, AND MY CLIENT CORRECTED ME. IT IS
RIGHT HERE IN OUR PAPERS THAT WE PRESENTED TO YOUR HONOR,
THE GUIDELINES RANGE.
THE COURT: I KNOW WHAT THE PAPERS SAY.
I WAS REFERRING TO YOUR ORAL ARGUMENT.
MR. RANDOLPH: I WAS WRONG IN THAT REGARD, YOUR HONOR. RULE 20 IS 2 TO 8
MONTHS.
THE COURT: ALL RIGHT.
MR. RANDOLPH: THAT IS AS AGREED UPON BY THE PARTIES.
WE HAVE ASKED THE COURT TO CONSIDER THE LOW END OF THE
GUIDELINE RANGE, AND FOR PURPOSES OF MY ARGUMENT TODAY I
WILL LIMIT MY COMMENTS ONLY TO THE PLEA AND TO THE
ACTIVITY THAT OCCURRED IN NORTH CAROLINA AND NOT TO
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OUTSIDE.
IF I MAY TAKE A MINUTE TO PARE THIS DOWN.
WELL THAT BEING THE CASE THEN, YOUR HONOR, THE ONLY
COMMENTS I THINK THAT GO--THAT I NEED TO MAKE ARE WITH
RESPECT TO RESTITUTION. THE DEFENDANT IS MAKING THE
FOLLOWING REQUEST.
WITH RESPECT TO THE RESTITUTION FOR THE PLEA OF
CONVICTION, THE DEFENSE BELIEVES THAT THE AMOUNT OF
RESTITUTION IS LESS THAN WHAT IS CONTAINED IN THE
PARAGRAPH IN THAT REGARD WHICH IS--LET ME TAKE A MOMENT,
PLEASE--PARAGRAPH 17.
NOTWITHSTANDING THAT, THE ONLY LIMITATION THAT THE
DEFENSE REQUESTS AND MR. MITNICK AGREES TO PAY THE
RESTITUTION EVEN AS SET FORTH IN PARAGRAPH 17 WHICH IS
THE LOSS AMOUNT OF SOME 17 HUNDRED DOLLARS, YOUR HONOR,
THAT HE WOULD REQUEST THAT THE COURT DELAY HIS HAVING TO
PAY THAT LOSS AMOUNT UNTIL HE HAS BEEN PLACED ON
SUPERVISED RELEASE, AND THE REASON FOR THAT IS THAT HE
WILL AT LEAST--IT IS A VERY PRACTICAL REASON. IF A
RESTITUTION AMOUNT IS ORDERED THEN THAT GOES ON THE BOOKS
AND ANY TIME MR. MITNICK HAS 50 DOLLARS ON HIS BOOKS
WHILE HE IS IN CUSTODY TO GET SOME INCIDENTALS THAT
RESTITUTION WILL BE TAKEN OUT OF THAT MONEY. THAT HAS
BEEN HIS EXPERIENCE AND MINE AS WELL, AND THAT IS WHY WE
ARE ASKING THAT WE WOULD NOT OBJECT TO THE RESTITUTION
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AND LOSS AMOUNT AS SET FORTH IN PARAGRAPH 17 IF THE COURT
WOULD SO LIMIT IT. OTHERWISE, THE CASES THAT WE HAVE
CITED INDICATE THAT A LOSS AMOUNT FOR THE PLEA OF
CONVICTION IS NOT APPROPRIATE UNDER THESE CIRCUMSTANCES.
THERE ARE A NUMBER OF CORRECTIONS THAT WE REQUESTED,
YOUR HONOR, AND AGAIN OUT OF AN ABUNDANCE OF CAUTION
BECAUSE THE P.S.R. FOLLOWS A PERSON AROUND, I HAVE SET
THOSE FORTH IN DETAIL.
LET ME SEE IF I CAN HIGHLIGHT THE ONES THAT DO NOT DEAL
WITH CONDUCT OUTSIDE OF NORTH CAROLINA.
PARAGRAPHS 12, 13 AND 14 ARE OUTSIDE NORTH CAROLINA AS IS
15 AND 16. SEVENTEEN IS THE RESTITUTION AMOUNT.
PARAGRAPHS 39 THROUGH 44, YOUR HONOR, WE HAVE ASKED THE
COURT TO STRIKE THE REFERENCE TO THE UNDER SEAL JUVENILE
COURT RECORDS FOR THE REASONS SET FORTH THEREIN, AND I
WILL SUBMIT THAT FOR THE COURT'S CONCERN AND
CONSIDERATION.
THE COURT: YOU SUBMIT AN ORDER TO ME ON THE PORTIONS YOU WANT
STRICKEN.
MR. RANDOLPH: I WILL DO SO.
THEN HAVING SAID THAT, YOUR HONOR, WITH RESPECT TO THE
PORTIONS, THE REMAINDER HAS TO DO WITH 47 AND 49. THE
ONLY THING I WOULD SAY FINALLY, YOUR HONOR, IS THAT
BECAUSE OF THE PENDING INDICTMENT, UPON MY ADVICE TO MR.
MITNICK, I AM SPEAKING ON HIS BEHALF--AND I KNOW THAT HE
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WOULD MAKE A STATEMENT TO THIS COURT BOTH ACKNOWLEDGING
RESPONSIBILITY--
THE COURT: WAIT A MINUTE. YOU DON'T WANT TO SAY ANYTHING?
THE DEFENDANT: MY ATTORNEY ADVISED ME NOT TO BECAUSE OF THE PENDING
INDICTMENT.
THE COURT: NO. YOU DON'T WANT TO SAY ANYTHING?
THE DEFENDANT: BECAUSE OF THE ADVICE, YES, YOUR HONOR.
THE COURT: GO ON.
MR. RANDOLPH: THANK YOU. I WOULD JUST ADD, YOUR HONOR, THAT MR. MITNICK
DOES HAVE FAMILY SUPPORT AND ALTHOUGH THIS IS THE SECOND
TIME THAT HE HAS APPEARED BEFORE YOUR HONOR, AND I
REALIZE THE POSITION THAT WE ARE IN, THE FAMILY HAS NOT
ABANDONED HIM.
THEY THINK THAT HIS FREEDOM AND THEIR CONCERN ABOUT HIM
IS WORTH AT LEAST ASKING THIS COURT TO CONSIDER NOT ONLY
WHAT HE DID BUT THE TYPES OF OFFENSES THAT HE IS ACCUSED
OF.
THE COURT: I DON'T KNOW WHAT THAT MEANS.
MR. RANDOLPH: WELL, YOUR HONOR, BOTH IN THE NORTH CAROLINA CASE HE HAS
PLED GUILTY TO BEING IN POSSESSION OF ACCESS DEVICES--
THERE IS NO QUESTION ABOUT THAT, BUT THOSE ACCESS DEVICES
EVEN THOUGH THE GOVERNMENT HAS PRESENTED WHAT THE NUMBERS
ARE AND ASKING FOR THE UPPER RANGE OF THE GUIDELINE--OF
THE PLEA AGREEMENT, NOTWITHSTANDING THAT THIS COURT SINCE
IT HAS NOT CONCERNED ITSELF WITH ISSUES THAT ARE
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ALLEGATIONS AND SPECULATION WHICH ABOUNDS WITH MR.
MITNICK BOTH IN THE MEDIA AND EVEN IN THE PAPERS THAT
HAVE BEEN PRESENTED FROM THE PROBATION DEPARTMENT, THE
COURT HAS SAID THAT IT WILL FOCUS ITS ATTENTION ONLY ON
WHAT IS CONTAINED IN NORTH CAROLINA, AND WITH RESPECT TO
THAT FOCUS AND THAT BEHAVIOR, YOUR HONOR, I ASK THE COURT
TO SENTENCE HIM WITHIN THE RANGE WHEREIN THE COURT SEES
FIT, AND WE HAVE ASKED FOR THE LOW END, AND I WOULD ASK
THE COURT TO SENTENCE HIM WITHIN THAT RANGE. THANK YOU
VERY MUCH.
THE COURT: WE ARE GOING TO STOP AND TAKE A RECESS.
(RECESS.)
THE COURT: ALL RIGHT. MR. PAINTER.
MR. PAINTER: YOUR HONOR, LET ME START WITH THE NORTH CAROLINA CASE,
IF I MAY.
THE COURT: WELL, IF YOU SENTENCE THE NORTH CAROLINA CASE FIRST IT
CHANGES THE RESULT OF THE SUPERVISED RELEASE.
MR. PAINTER: YOUR HONOR, I AM NOT SURE IF IT TECHNICALLY WILL OR NOT.
IT CERTAINLY DOESN'T CHANGE WHAT THE GOVERNMENT'S
POSITION WILL BE. IT WOULD BE UP TO THE COURT WHICH IS TO
SENTENCE--
THE COURT: LET'S ASSUME IT DOESN'T CHANGE IT.
MR. PAINTER: OKAY. ASSUMING IT DOESN'T, WE WILL START WITH THE NORTH
CAROLINA CASE. BRIEFLY THERE THE RANGE IDENTIFIED BY THE
PRESENTENCE REPORT AND AGREED TO BY THE PARTIES IS A
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RANGE OF 2 TO 8 MONTHS.
AS THE COURT IS WELL AWARE, WHEN THE RANGE IS LESS THAN
20 MONTHS THE COURT NEED NOT IDENTIFY ANY REASONS FOR
SELECTING ANY PARTICULAR POINT WITHIN THE RANGE. HOWEVER,
AS THE GOVERNMENT STATED BOTH IN ITS ORIGINAL SENTENCING
PAPERS AND AGAIN IN THE PAPERS IT FILED ON FRIDAY, AND
YOUR HONOR, I APOLOGIZE FOR THOSE BEING FILED ON FRIDAY
BUT WE DID NOT GET THE DEFENDAT'S POSITION PAPER UNTIL
LATE THURSDAY NIGHT, I DON'T BELIEVE THE PROBATION
OFFICER HAS HAD ANY CHANGE--THAT IS NOT MR. GULLA--ON THE
NORTH CAROLINA CASE TO EVEN EVALUATE THOSE POSITION
PAPERS.
THE FACT THAT THE COUNT TO WHICH HE PLED GUILTY OF
POSSESSION OF 15 OR MORE ACCESS DEVICES INVOLVED THE
POSSESSION OF OVER ONE HUNDRED ILLEGAL CELLULAR PHONE
CODES--WHEN HE WAS ARRESTED ONE OF THE THINGS HE HAS WAS
A PHONE PROGRAMMED WITH 5 OF THOSE CODES--THAT THE USE OF
THOSE PHONE CODES DID CAUSE LOSSES TO CELLULAR OPERATORS.
THE DEFENDANT IN HIS PAPERS, AT LEAST, CONTESTED THAT.
HOWEVER, LOOKING AT THE TRANSCRIPT OF HIS PLEA HEARING HE
SPECIFICALLY ADMITTED TO NOT ONLY HAVING POSSESSION OF THE
CODES BUT--AND I QUOTE, YOUR HONOR, IT WAS STATED THAT MR.
MITNICK HAD, IN FACT, BEEN ACCESSING AND OBTAINING
TELEPHONE SERVICE WITHOUT THE PERMISSION OF THE CELLULAR
PROVIDERS.
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THE COURT ASKED THE DEFENDANT IF THAT IS WHAT HE DID AND
HE SAID, "YES, YOUR HONOR," IN FACT HE HAD USED THOSE
CODES.
HE HAD BEEN PREVIOUSLY CONVICTED FOR BOTH
TELECOMMUNICATIONS FRAUD AND COMPUTER FRAUD AND HE HAD
BEEN APPREHENDED WHILE IN POSSESSION OF FALSE I.D. WHILE
HE HAD BEEN A FUGITIVE.
THE TELECOMMUNICATIONS FRAUD ALLEGATION EASILY JUSTIFIES
A SENTENCE AT THE UPPER END OF THAT RANGE OF 8 MONTHS FOR
THE NORTH CAROLINA CASE.
THERE WERE A COUPLE OTHER STATEMENTS MADE, ONE RELATING
TO RESTITUTION. I CONFESS I DON'T COMPLETELY UNDERSTAND
THE DEFENDANT'S VIEW ON THAT. HE SAYS THAT HE CAN'T BE
ORDERED TO PAY RESTITUTION BECAUSE IT WASN'T PART OF THAT
COUNT.
WELL, THE NUMBERS IDENTIFIED BY THE PROBATION OFFICE AND
THE FACT OF THE ADMISSION THAT HE USED THOSE NUMBERS TO
OBTAIN CELLULAR SERVICE, CLEARLY THAT ARISES FROM CONDUCT
THAT WAS COUNT TWO IN THE INDICTMENT THAT HE PLED GUILTY
TO. CLEARLY RESTITUTION IS PROPER, AND I BELIEVE THAT IT
SHOULD BE IMPOSED.
YOUR HONOR, WITH RESPECT TO SEVERAL SECTIONS THAT HE MOVES
TO STRIKE IN THE PRESENTENCE REPORT, AGAIN UNFORTUNATELY
BECAUSE OF THE TIMING OF THE DEFENDANT'S POSITION THE
PROBATION OFFICE HAS NOT HAD A CHANCE TO EVALUATE THOSE.
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THE COURT: THAT IS WHY HE IS GOING TO SUBMIT AN ORDER.
MR. PAINTER: YOUR HONOR, WE MAY--AT THAT TIME WE WILL TAKE UP THOSE
PARTICULAR ISSUES, PARTICULARLY THE REQUEST TO DROP--I
THINK IT IS ALLEGATIONS 39 THROUGH 44 RELATING TO A
JUVENILE CONVICTION. I BELIEVE THAT WAS TAKEN FROM THE
PRESENTENCE REPORT SUBMITTED TO YOUR HONOR IN THE CONTEXT
OF THE 1989 ALLEGATION WHICH YOUR HONOR ACCEPTED.
THE COURT: I THINK SO.
MR. PAINTER: YOUR HONOR, WE THINK CLEARLY IN THE CONFINES OF NORTH
CAROLINA CASE A SENTENCE AT THE 8 MONTH RANGE IS CLEARLY
APPROPRIATE.
MOVING ON TO SUPERVISED RELEASE, YOUR HONOR, FIRST OF ALL,
I SPOKE WITH--PROBATION OFFICER FRANK GULLA IS NOT HERE
TODAY.
THE COURT: HE HAD AN ACCIDENT, I BELIEVE.
MR. PAINTER: I SPOKE WITH HIM THIS MORNING. HE IS AVAILABLE, IF THE
COURT WISHES, BY TELEPHONE BUT HE IS AT HOME. HE INFORMED
ME THAT, INDEED, THAT THERE WOULD NOT BE CREDIT GIVEN FOR
TIME IN A HALFWAY HOUSE.
HE ALSO INFORMED ME HE ADVISED THE COURT OF THAT SEVERAL
MONTHS AGO IN ONE OF THE LETTERS TO THE COURT SO HE IS
NOT, AS COUNSEL SAID, PLAIN WRONG. HE ADVISED THE COURT
OF THAT AS SOON AS A CHANGE, I BELIEVE, IN THE LAW TOOK
PLACE.
NOW, WITH RESPECT TO HOW THIS WHOLE THING WORKS ON THE
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SUPERVISED RELEASE, DEFENSE COUNSEL MAKES MUCH OF SAYING
THAT THESE ARE GUIDELINES. THE COURT SHOULD FOLLOW THE
GUIDELINES. THE COURT SHOULD NOT UPWARDLY DEPART FROM
THESE GUIDELINES.
THIS IS A DIFFERENT ANIMAL, YOUR HONOR. AS YOU KNOW IT IS
A SUPERVISED RELEASE VIOLATION CASE, AND THE GUIDELINES
ARE NOT STRICT GUIDELINES. THEY ARE POLICY STATEMENTS
ONLY.
THERE ARE REASONS--THE COURT CAN EASILY SENTENCE ANYWHERE
WITHIN THE RANGE OF POSSIBILITIES AND THAT INCLUDES UP TO
TWO YEARS IN THIS CASE.
THE COURT DOES NOT NEED TO FOLLOW THE MECHANICAL
STRICTURES IT WOULD IF IT WERE UPWARDLY DEPARTING FROM
THE GUIDELINES IN A SUBSTANTIVE CASE--IN A SUBSTANTIVE
CHARGE.
THERE IS CASE LAW THAT THE GOVERNMENT CITED FOR PRECISELY
THAT PROPOSITION.
NEVERTHELESS, YOUR HONOR, AND IT IS INCORRECT TO SAY THE
GOVERNMENT IS RELYING ON PARTICULAR APPLICATION NOTES TO
URGE AN UPWARD DEPARTURE.
THE GOVERNMENT IS RELYING ON THE WHOLE CIRCUMSTANCES OF
THIS CASE TO SAY LOOK AT WHAT THE DEFENDANT DID. LOOK AT
THE EREGIOUSNESS OF WHAT THE DEFENDANT DID IN THE CONTEXT
OF WHAT THE DEFENDANT WAS CONVICTED FOR--IN THE CONTEXT OF
WHAT THE COURT DID IN SENTENCING THE DEFENDANT ORIGINALLY,
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GRATING HIM SOME LENIENCY AND BECAUSE OF ALL OF WHAT HE
DID--DESPITE THE COURT'S LENEINCY--SENTENCE HIM TO THE
UPPER END OF THAT RANGE--THAT TWO YEAR RANGE.
SPECIFICALLY, YOUR HONOR, I THINK THE PRIMARY THING THAT
THE GOVERNMENT IS ARGUING IS LOOK AT THAT FIRST
ALLEGATION.
THE FIRST ALLEGATION IS, NO MATTER HOW MR. RANDOLPH TRIES
TO PAINT IT, ACCESSING--ILLEGALLY ACCESSING COMPUTERS,
TELECOMMUNICATIONS DEVICES WHEN THIS COURT SPECIFICALLY
AS A SPECIAL CONDITION TOLD THE DEFENDANT NOT TO DO
THAT--WHEN THIS COURT SAID BACK IN 1989,"I AM NOT GOING
TO FOLLOW THE PROBATION OFFICER'S RECOMMENDATION THERE.
I AM NOT GOING TO UPWARDLY DEPART. I AM NOT GOING TO GIVE
YOU A SENTENCE AT THE HIGH END OF THE RANGE, BUT I AM
GOING TO IMPOSE THIS CONDITION."
NEVERTHELESS, HE ENGAGES IN PRECISELY THAT KIND OF
CONDUCT, THE ALLEGATION--THE PROBATION OFFICER'S
ALLEGATION STATES,"ILLEGALLY ACCESSES THE COMPUTER--THE
PACIFIC BELL VOICE-MAIL COMPUTERS."
THAT IS WHAT THE DEFENDANT ADMITTED TO.
HE DIDN'T ADMIT TO CALLING INTO AN ANSWERING MACHINE
WITH AN UNAUTHORIZED PASS WORD.
HERE IF YOU LOOK AT THE CONDUCT--AND THE GOVERNMENT HAS
SET THIS OUT IN ITS PAPERS--WHAT HE DID WAS VERY SERIOUS.
HE BROKE INTO THE PACIFIC BELL VOICE-MAIL COMPUTERS AND
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THE DEFENDANT, IF ANYONE, KNOWS THAT THOSE ARE, IN FACT,
COMPUTERS--BROKE INTO THEM, USED PASS WORDS--SECRET PASS
WORDS OF SECURITY INVESTIGATORS FOR PACIFIC BELL WHILE HE
WAS WORKING FOR A COMPANY CALLED TELTEC WHO WAS BEING
INVESTIGATED BY PACIFIC BELL.
HE ALSO HAD SERVICES ON HIS PHONE--ON THE PHONES OF LEWIS
DE PAYNE AND THE PHONES OF HIS EMPLOYER--THAT WERE NOT
BEING PAID FOR THAT THE DEFENDANT WAS RESPONSIBLE FOR.
WE SET THAT ALL OUT AGAIN IN THE AFFIDAVIT OF KENNETH
MCQUIRE AND AN AFFIDAVIT OF--OH, IT IS IN THE
PRESENTENCE--THE PROBATION OFFICER'S LETTER AND IT IS
ALSO IN THE AFFIDAVIT OF KENNETH MCQUIRE AND SUPPORTED BY
THE DECLARATIONS AND EXHIBITS TO THEM.
NOW, THAT WAS A BREACH OF TRUST.
WHAT THE COURT IS SENTENCING THE DEFENDANT FOR IN THE
SUPERVISED RELEASE CONTEXT IS HIS BREACH OF TRUST, THE
TRUST THE COURT REPOSED IN HIM, AND HE CLEARLY DID NOT
CARE WHAT THE COURT WANTED HIM TO DO BECAUSE HE JUST
FLAUNTED THAT. HE DID THE EXACT SAME CONDUCT.
HE ASSOCIATED WITH DE PAYNE, AND AGAIN BACK TO THAT FIRST
VIOLATION, YOUR HONOR, THIS IS NOT, YOU KNOW, A GRADE B,
GRADE C SORT OF ARGUMENT. THIS IS CONDUCT THAT IS
PRECISELY THE KIND OF CONDUCT THAT HE HAS GOTTEN IN
TROUBLE FOR IN THE PAST.
IT IS NOT SOMEONE WHO IS CONVICTED OF ONE ITEM AND THEN
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DOES SOME OTHER SMALL FELONY MISDEMEANOR OR SOMETHING OF
THAT NATURE, AND THE GOVERNMENT CLEARLY ARGUES THAT HIS IS
A GRADE B VIOLATION. THE PROBATION OFFICE STATED AS MUCH.
THE PROBATION OFFICE DID GIVE REASONS FOR THAT.
IF YOU LOOK AT THE STATUTE--THE STATE STATUTE, THE
DEFENDANT DID ACCESS THE COMPUTER SYSTEM. HE DID USE THE
COMPUTER SYSTEM. HE OBTAINED INFORMATION BY LISTENING TO
THOSE MESSAGES. THAT IS A VIOLATION OF 506(C)1.
THAT IS A FELONY, YOUR HONOR, AND THAT WOULD QUALIFY AS A
GRADE B, BUT I DON'T THINK WE REALLY EVEN NEED TO FOCUS
ON THE GRADE B/GRADE C DISTINCTION BECAUSE OF THE
EGREGIOUSNESS OF THE CONDUCT THERE.
NOW ALLEGATION TWO--THE ALLEGATION RELATING TO ASSOCIATING
WITH LEWIS DE PAYNE, WELL, YOU KNOW, IT IS JUST NOT LEWIS
DE PAYNE AS BEING SOMEONE ELSE WHO HAS KNOWN TO BE
PARTICIPATING IN THE PAST IN COMPUTER OR
TELECOMMUNICATIONS FRAUD.
THIS IS LEWIS DE PAYNE WHO THE DEFENDANT HIMSELF HAD
ASSOCIATED WITH IN COMMITTING THOSE CRIMES EARLIER ON IN
HIS CAREER, SO AGAIN IT IS SOMETHING BEYOND JUST THE
SIMPLE FACT THAT HE IS ASSOCIATING WITH SOMEONE AGAINST
THE COURT'S ORDER.
NOW, YOUR HONOR, THE NEXT THING I WOULD LIKE TO ARGUE,
AND I THINK THIS IS CLEARLY APPROPRIATE, IS THAT AFTER--
AND THERE IS EVIDENCE--UNCONTROVERTED EVIDENCE IN THE
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RECORD THAT THE DEFENDANT KNEW THAT THERE WAS A WARRANT
OUTSTANDING FOR HIS ARREST FROM THIS COURT.
HE KNEW THAT WHEN HIS ATTORNEY CALLED THE PROBATION
OFFICE AND OFFERED TO SELF-SURRENDER.
WE KNOW, AND THERE IS A DECLARATION ATTACHED TO THE
GOVERNMENT'S POSITION PAPER, THAT WHEN AN APARTMENT THAT
HE HAD IN SEATTLE WHERE HE WAS USING A FALSE NAME OF A
MAN NAMED MERRILL WAS RAIDED AND HE WASN'T FOUND THERE,
AMONG THE INFORMATION--THE COMPUTER INFORMATION FOUND
THERE--WAS STORED THERE--WERE ARTICLES ABOUT HIM--ABOUT
HIM BEING WANTED ON THIS COURT'S WARRANT.
IT IS CLEAR HE KNEW ABOUT IT. IT IS CLEAR HE AGAIN WAS
FLAUNTING THIS COURT'S JURISDICTION AND HAD NO ITENTION
OF EVER TURNING HIMSELF IN UNLESS HE WAS CAUGHT, WHICH,
IN FACT, LATER ON HE WAS CAUGHT.
MR. RANDOLPH SAYS YOU CAN'T CONSIDER ANYTHING AFTER THAT
DECEMBER 7TH POINT, ASSUMING FOR ARGUMENT THAT THAT IS
WHEN SUPERVISED RELEASE ENDED.
THAT IS JUST NOT THE CASE, YOUR HONOR.
THERE IS NO EVIDENCE--THERE IS NO CASE LAW I HAVE SEEN
THAT DIRECTS THE COURT TO IGNORE THAT INFORMATION. CLEARLY
IF THE COURT IS SENTENCING SOMEONE ON ITS BREACH OF TRUST
TO THIS COURT, THE COURT CAN LOOK AT HOW THE DEFENDANT
REACTED, WHAT REMORSE THE DEFENDANT SHOWED.
THE COURT: IT IS INTERESTING TO ME BECAUSE I HAVE NEVER HEARD IT
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DESCRIBED AS A BREACH OF TRUST.
MR. PAINTER: WELL, YOUR HONOR, I THINK WHAT IT DOES IS IT RELATES BACK
TO THE SENTENCING IN 1989. THE COURT SENTENCED THE
DEFENDANT FOR PARTICULAR CONDUCT IN '89 AND THEN SAID
OKAY. THIS IS YOUR SENTENCE. YOU GET SUPERVISED RELEASE
AFTER THAT SENTENCE. IN FACT, THE COURT IN THAT CASE GAVE
HIM THE LOW END OF THE RANGE.
THE COURT: THAT IS NOT BECAUSE I TRUSTED HIM.
MR. PAINTER: WELL, I GUESS, YOUR HONOR, I HAVE SEEN IT DESCRIBED THAT
WAY IN THE CASE, THAT THE COURT WHEN IT PUT SOMEONE ON
SUPERVISED RELEASE HOPES AND TRUSTS HE IS GOING TO FOLLOW
THOSE GUIDELINES ON SUPERVISED RELEASE. WHAT HAPPENS THEN
IS SOMEONE VIOLATES THAT. THEY BREACH THAT TRUST.
THE COURT: I THINK IN THIS PARTICULAR INSTANCE YOU MUST LOOK AT IT
THIS WAY.
THE COURT DID NOT TRUST MR. MITNICK TO FOLLOW THOSE
CONDITIONS.
THE COURT IMPOSED THOSE CONDITIONS IN THE HOPE THAT HE
WOULD FOLLOW THEM, BUT IT WAS NOT AN EXPECTATION THAT HE
WOULD.
MR. PAINTER: WELL, YOUR HONOR, THEN LET ME PHRASE IT THIS WAY. DISPITE
THE HOPES OF THE COURT AND DISPITE THE RESTRICTIONS--
THE COURT: EXCUSE ME. I SHOULD FINISH IT THIS WAY. I TOLD YOU I HAVE
REAL APPREHENSION ABOUT ANY SITUATION IN WHICH MR. MITNICK
IS NEAR A COMPUTER AND THAT WOULD BE WHETHER IT IS IN THE
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M.D.C. OR WHEREVER IT IS.
MR. PAINTER: I UNDERSTAND THAT, YOUR HONOR.
THE COURT: I HAD THAT APPREHENSION THEN AND I HAVE IT NOW.
MR. PAINTER: AND I IMAGINE THAT IS WHY THOSE CONDITIONS WERE IMPOSED AT
THAT TIME, YOUR HONOR, AND SIMILAR CONDITIONS WE WOULD ASK
TO BE IMPOSED IN ADDITION TO THE OTHER CONDITIONS WHEN THE
DEFENDANT IS SENTENCED IN THE NORTH CAROLINA CASE.
I GUESS, YOUR HONOR, IN SUM WHAT WE ARE TRYING TO SAY IS
WHAT THE DEFENDANT DID WAS NOT ONLY THE EXACT SAME CONDUCT
WHETHER THE COURT EXPECTED HIM TO OR NOT.
THE COURT: SAME--SAME CONDUCT.
MR. PAINTER: SAME CONDUCT, EXACTLY. THAT CONDUCT WAS VERY SERIOUS, THAT
HE THEN--HE BASICALLY THUMBED HIS NOSE AT THE COURT, YOUR
HONOR. WHAT HE DID BACK THEN--HE THEN TOOK OFF. WHEN HE
TOOK OFF IS IMMATERIAL FOR THIS ARGUMENT.
THE FACT IS HE KNEW OF THE WARRANT BEING OUT THERE AND HE
DIDN'T CARE.
THE COURT: I DON'T THINK THAT, EITHER. I THINK THAT YOU HAVE TO BE
VERY FEARFUL IF MR. MITNICK IS PERMITTED TO DO ACTS IN
CONJUNCTION WITH COMPUTERS, AND IT IS NOT A MATTER OF
SCORN FOR THE COURT. IT IS A QUESTION OF REAL APPREHENSION
THAT THIS COURT HAS ABOUT HIM.
MR. PAINTER: I UNDERSTAND, YOUR HONOR.
THE COURT: AND IT IS THE SAME KIND OF CONDUCT.
MR. PAINTER: IT IS THE SAME KIND OF CONDUCT. I THINK WHAT I WAS
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REFERRING TO IS THAT ONCE IT WAS CLEAR A WARRANT WAS OUT
THERE AND ONCE IT WAS CLEAR HE KNEW ABOUT IT, HE DIDN'T
COME AND TURN HIMSELF IN. WHAT HE DID WAS HE ENGAGED IN
USING A NUMBER OF ALIASES OVER THE COURSE OF TWO AND A
HALF YEARS TO TRY TO EVADE ARREST. HE DIDN'T HAVE ANY
REMORSE WHEN HE WAS COMING BACK TO THIS COURT--
THE COURT: THE COURT WAS NOT ANTICIPATING THAT HE WOULD COME AND TURN
HIMSELF IN.
THE COURT WAS APPREHENSIVE OF THE VERY SITUATION THAT
OCCURRED.
MR. PAINTER: I UNDERSTAND, YOUR HONOR.
THE COURT: NOW, IN THAT REGARD HAVING VIOLATED THOSE CONDITIONS, YOUR
POSITION IS THAT ANY SENTENCE WHICH IS UP TO TWO YEARS IS
A LEGAL SENTENCE.
MR. PAINTER: THAT IS NOT ONLY MY POSITION, YOUR HONOR, THAT IS THE
POSITION OF THE PROBATION OFFICER AND--
THE COURT: NO. I AM ASKING YOU.
MR. PAINTER: YES, IT IS MY POSITION, YOUR HONOR. OUR POSITION IS THAT A
TWO YEAR SENTENCE IS AUTHORIZED, IS LEGAL AND THAT TWO
YEAR SENTENCE CAN AND SHOULD BE RUN CONSECUTIVELY TO THE
NORTH CAROLINA CASE WHERE WE WOULD SUGGEST AN 8 MONTH
SENTENCE. I BELIEVE THAT IS NOT ONLY OUR POSITION BUT THE
POSITION THAT I HAVE BEEN ABLE TO DISCERN IN THE LAW AND
THE POSITION OF THE PROBATION OFFICER AS WELL.
I DON'T KNOW WHAT THE PROBATION OFFICER RECOMMENDS BUT I
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KNOW THAT--
THE COURT: NOW MR. RANDOLPH'S POSITION IS THAT THE RANGE IS 8 TO 14
MONTHS.
MR. PAINTER: I THINK EVEN MR. RANDOLPH WOULD ADMIT THAT IN THE
SUPERVISED RELEASE CONTEXT, AND YOUR HONOR, WE DID CITE A
CASE THAT SAYS PRECISELY THIS, THE COURT IS NOT BOUND--THE
COURT CAN FREELY REJECT THESE POLICY STATEMENTS. THIS IS
NOT THE--
THE COURT: I BELIEVE THAT IS CORRECT.
MR. PAINTER: AND SO--
THE COURT: BUT IT CAN'T EXCEED TWO YEARS.
MR. PAINTER: IT CANNOT EXCEED TWO YEARS, CORRECT, FOR THAT--FOR THE
SUPERVISED RELEASE. I BELIEVE TWO YEARS IS THE MAXIMUM THE
COURT CAN IMPOSE, AND THAT IS WHAT THE GOVERNMENT IS
URGING.
LET ME JUST SEE IF THERE IS ANYTHING ELSE, YOUR HONOR. AS
FAR AS ANY MOTIONS TO STRIKE, I WILL DEAL WITH THAT AT
THAT TIME, YOUR HONOR. IF THE COURT HAS NO FURTHER
QUESTIONS, THAT IS ALL I HAVE RIGHT NOW.
THE COURT: WHICH IS NOT TO SAY THAT I AM NOT VERY APPREHENSIVE ABOUT
MR. MITNICK AND THE USE OF COMPUTERS.
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MR. RANDOLPH: I UNDERSTAND, YOUR HONOR. THERE IS--ANOTHER COMMENT
COUNSEL MADE WAS WITH RESPECT TO SERVICES, JUST AN
ALLEGATION AGAIN, YOUR HONOR, WHEN COUNSEL IS TALKING AND
IT GOES VERY QUICKLY, SUDDENLY THINGS MELD. THE
SPECIFICITY IS LOST AND ONE THINGS MELDS INTO ANOTHER.
THERE IS AN ALLEGATION SUDDENLY THAT SERVICES WERE PLACED
ON MY CLIENT'S PHONE AND FAMILY MEMBERS AND THAT HE WAS
RESPONSIBLE FOR THAT TALKING AS IF THAT WAS AN ALLEGATION
OF SUPERVISED RELEASE WHICH IT WAS NOT, AND THE REFERENCE
HE MADE TO AGENT MCQUIRE IN HIS AFFIDAVIT IS TAKEN FROM A
STATEMENT OF MR. LEWIS DE PAYNE WHOM WE HAVE NO ACCESS TO
TO DISPUTE, AND AS I UNDERSTAND, MR. LEWIS DE PAYNE HAS
SINCE RECANTED A PORTION OF THAT STATEMENT, SO I AM ASKING
THE COURT TO BE VERY CAREFUL IN ASSESSING THE ARGUMENTS,
CERTAINLY TO LISTEN TO COUNSEL BUT TO GO--ALWAYS GO BACK
TO WHAT THE EVIDENCE IS THAT HAS BEENPRESENTED TO YOUR
HONOR.
WE TRIED TO BE DILIGENT IN TERMS OF WHAT WE HAVE
PRESENTED. IT DOES MATTER WHETHER IT IS A GRADE B OR A
GRADE C UNLIKE WHAT COUNSEL SAYS BECAUSE IF THE COURT
FINDS THAT IT IS A GRADE C THEN IF THE COURT FEELS THAT IT
SHOULD GO BEYOND TO THE UPWARD LEVEL OF THE GUIDELINE THAT
IS PROPOSED OR BEYOND THAT, SHOULD YOU GO BEYOND THAT A
MONTH OR TWO, SHOULD YOU GO BEYOND THAT TO THE MAXIMUM 24
YEARS--IT DOES MAKE A DIFFERENCE WHAT THE STARTING POINT
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IS.
THE COURT: MONTHS.
MR. RANDOLPH: PARDON ME?
THE COURT: MONTHS.
MR. RANDOLPH: MONTHS. THANK YOU, YOUR HONOR, FOR THAT CLARIFICATION.
FINALLY, YOUR HONOR, I ASK THE COURT EVEN THOUGH YOUR
HONOR MUST NOT FOLLOW--YOU HAVE THE ABILITY TO REJECT THE
POLICY STATEMENTS.
IT IS NOT AS YOUR HONOR WELL KNOWS, BUT IT SOUNDED LIKE
COUNSEL WAS SUGGESTING THAT YOU CAN JUST BRUSH THEM ASIDE.
OBVIOUSLY THE COURT CANNOT DO THAT, AND IT IS--EVEN IN THE
MOST RECENT CASE OF U.S. VERSUS SABLIN WHICH WE CITED TO
YOUR HONOR WHICH GIVES THE COURT GREAT DISCRETION IN
SENTENCING MATTERS, NONETHELESS, IT ADVISES THE COURT TO
HAVE DUE REGARD FOR THE RELATIONSHIP OF THE SENTENCE
IMPOSED TO THE SENTENCES PRESCRIBED BY THE GUIDELINES, AND
SO EVEN WHILE IT GIVES THE COURT MORE DISCRETION THAN IT
HAS HAD IN THE PAST, IT NONETHELESS HARKENS BACK TO THE
GUIDELINES.
WE HAVE A GUIDELINE STATEMENT HERE. WE HAVE A POLICY
STATEMENT THAT IS IN THE GUIDELINES THAT MAKES
RECOMMENDATIONS TO THIS COURT, AND I URGE THE COURT TO THE
EXTENT THAT IT FEELS APPROPRIATE TO FOLLOW THOSE
GUIDELINES IN CIRCUMSTANCES AND IN A CASE LIKE THIS.
THAT IS WHY WE HAVE MADE THE REQUEST OF THIS COURT THAT WE
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HAVE, AND WE ASK THE COURT TO SENTENCE MY CLIENT WITHIN
THE GUIDELINES.
AS COUNSEL HAS URGED, YOU SHOULD FOLLOW THE POLICY
STATEMENT IN SENTENCING HIM CONSECUTIVELY. WE SUBMIT THAT,
BUT WE ALSO URGE THE COURT WITH THE SUPERVISED RELEASE TO
FOLLOW THE SAME POLICY STATEMENT IN THE SAME PARAGRAPH--
THE SAME CHAPTER, I SHOULD SAY, WHICH SUGGESTS THE RANGE
THAT I HAVE ADVISED THE COURT, THE MAXIMUM BEING--EVEN IF
YOU ENHANCE IT FROM THE ARGUMENTS OF COUNSEL, THE MAXIMUM
BEING 14 MONTHS.
FINALLY, YOUR HONOR, THE COURT SAID SOMETHING BEFORE THE
BREAK WHICH SURELY I ACKNOWLEDGE THAT WITH RESPECT TO THE
RULE 20 CASE THAT THE COURT CAN CONSIDER HIS CRIMINAL
HISTORY BACKGROUND, AND, OF COURSE, YOU MAY, PARTICULARLY
THE MAIN PORTION WITH THE EXCEPTION OF THE MISDEMEANOR IN
SANTA CLARA WHICH GIVES HIM ONE POINT, HE GETS THE
REMAINING FOUR POINTS OF HIS CRIMINAL HISTORY WHICH PUTS
HIM INTO A CRIMINAL HISTORY 3 FROM THE 1988 CASE BEFORE
YOUR HONOR, AND IF YOU GIVE HIM EVEN A DAY IN CUSTODY,
THEN--WHICH THE GUIDELINES OBVIOUSLY CALL FOR MORE THAN
THAT--HE WILL GET YET ANOTHER CRIMINAL HISTORY POINT. THAT
IS THE TOTAL OF 5 CRIMINAL HISTORY POINTS STEMMING FROM
THE 1988 CONVICTION BEFORE THIS COURT.
THE COURT: NOTHING THAT YOU ARE SAYING NOW IS GOING TO HAVE ANY
EFFECT ON THE SENTENCE.
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MR. RANDOLPH: I UNDERSTAND.
THE COURT: WHAT YOU HAVE GOT TO LOOK AT IS THE FACT THAT MR. MITNICK
GOES ON DOING THE SAME THING.
MR. RANDOLPH: WELL, I UNDERSTAND THAT, YOUR HONOR. IN THE TWO CASES
BEFORE--THAT YOU HAVE BEFORE YOU, YES, THAT IS TRUE. YOU
HAVE SIMILAR TYPE ALLEGATIONS BOTH IN THE SUPERVISED
RELEASE AND IN THE RULE 20 CASE, BUT THE GOVERNMENT SAYS
SO WHAT YOU SHOULD DO IS THROW HIM IN JAIL AND THROW AWAY
THE KEY FOR THE MAXIMUM THAT YOU CAN POSSIBLY SQUEEZE OUT
OF THE GUIDELINES.
I SUGGEST, YOUR HONOR, THAT IS NOT WHAT SHOULD HAPPEN TO
MR. MITNICK, AND THE REASON I SAY THAT IS THE GUIDELINES,
EVEN THOUGH HE HAS COMMITTED SIMILAR OFFENSES AND IT IS
UPSETTING TO THIS COURT I AM SURE, BUT NONETHELESS THE
GUIDELINES DO TAKE THAT INTO ACCOUNT WHEN THEY MAKE THE
RECOMMENDATIONS OF WHAT THE POLICIES ARE, AND THAT IS WHY
I AM ASKING THE COURT TO STAY WITHIN THE GUIDELINE RANGE,
BECAUSE THAT IS WHAT THE U.S. COMMISSION WHICH WE HAVE TO
DEAL WITH IN SENTENCING PRESCRIBES FOR OFFENSES EVEN IF
THEY ARE SIMILAR ONES DESPITE WHAT THE GOVERNMENT SAYS IN
THEIR EMOTIONAL APPEAL TO YOU, AND THE SECOND THING IS--
THE COURT: I DON'T THINK IT WAS PARTICULARLY EMOTIONAL. I WOULDN'T
CHARACTERIZE IT THAT WAY.
MR. RANDOLPH: ALL RIGHT. BUT EVEN IN ASKING FOR YOUR HONOR TO GO BEYOND
THE GUIDELINES, I THINK THE GOVERNMENT HARKENS BACK TO
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WELL, IT IS THE SAME ACTIVITY. IT IS THE SAME THING. WELL,
IT IS TRUE, YOUR HONOR, THAT IT IS WITHIN THE SAME--
CERTAINLY THE ACTS ARE NOT IDENTICAL BUT THEY ARE THE SAME
TYPE OF CONDUCT--NO QUESTION ABOUT THAT--BUT NONETHELESS
THE GUIDELINES TAKE THAT INTO ACCOUNT WHEN THEY PRESCRIBE
WHAT THE SENTENCE SHOULD BE, AND THAT IS WHY I AM URGING
THIS COURT TO FOLLOW THE GUIDELINES IN SENTENCING MY
CLIENT.
THERE ARE OTHER REASONS.
THERE IS EXAMINATION AND INVESTIGATION WHICH I INDICATED
TO THE COURT IS UNDERWAY BY THE DEFENSE, BUT WE ARE A LONG
WAYS AWAY FROM HAVING THAT PRESENTATION TO YOUR HONOR, AND
I SUBMITTED OUR STATUS UNDER SEAL, AND SO I CANNOT ARGUE
THAT TO THIS COURT FOR SENTENCING, AND I WILL NOT, BUT ALL
I AM ASKING FOR TODAY IS FOR THE COURT TO FOLLOW THE
GUIDELINES REGARDLESS OF THE FACT THAT IT IS SIMILAR TYPE
OF CONDUCT. I THANK YOU.
THE COURT: YES. WELL, I AM GOING TO IMPOSE THIS SENTENCE EITHER
TOMORROW OR SOME DAY THIS WEEK BECAUSE I WANT THE
CONDITIONS TO BE VERY SPECIFIC. I AM GOING TO WRITE THEM
WITH MR. LATTA SO THAT I DON'T HAVE ANY AMBIGUITY IN THE
CONDITIONS, BUT I AM GOING TO GIVE HIM A MONTHS ON THE
NORTH CAROLINA PLEA, AND I AM GOING TO GIVE HIM 14 MONTHS
ON THE VIOLATION--ON VIOLATION OF CONDITIONS ONE AND TWO
OF THE SUPERVISED RELEASE, AND I AM NOT GOING TO TAKE ANY
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MORE ARGUMENT, AND I AM NOT GOING TO CHANGE MY MIND, SO IT
IS 14.
FOURTEEN IS THE GENERAL UPPER RANGE OF THE SUPERVISED
RELEASE AND EIGHT IS THE MOST I CAN GIVE HIM ON NORTH
CAROLINA.
MR. PAINTER: IS IT CORRECT THAT YOUR HONOR HAS THOSE RUNNING
CONSECUTIVE?
THE COURT: THEY ARE CONSECUTIVE.
MR. PAINTER: THANK YOU.
THE COURT: THEY WILL BE CONSECUTIVE, AND THE ONLY QUESTIONS ARE THE
CONDITIONS AND EXACTLY HOW THEY WILL BE WORDED. NOW, I
DON'T WANT TO HEAR ANY MORE ARGUMET. IT IS 8 AND 14, AND
THEY ARE CONSECUTIVE, AND SO YOU CAN PICK THE TIME THAT
YOU ARE GOING TO COME BACK TO ACTUALLY IMPOSE IT ON HIM.
MR. PAINTER: YOUR HONOR, ANY TIME IN THE NEXT COUPLE OF DAYS.
THE COURT: WELL THEN WE WILL LEAVE IT UP TO MR. RANDOLPH.
MR. RANDOLPH: YOUR HONOR, WOULD THE COURT CONSIDER DOING IT NEXT MONDAY
AFTERNOON?
THE COURT: YES. THAT'S FINE. YOU CAN'T FILE. ANYTHING IN WRITING. YOU
CAN'T MAKE ANYMORE ARGUMENT. WE ARE FINISHED WITH THESE 2
CRIMINAL NUMBERS, THE CRIMINAL NUMBERS, OF COURSE, BEING
THE ONES--
MR. RANDOLPH: I UNDERSTAND.
THE COURT: --THAT RELATE TO NORTH CAROLINA AND THE ONES THAT RELATE
TO THE SUPERVISED RELEASE VIOLATIONS, AND WHEN I SAY I AM
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NOT GOING TO LISTEN TO ONE MORE WORD, I MEAN THAT. I AM
NOT GOING TO READ ANOTHER WORD AND I AM NOT GOING TO
LISTEN TO ANOTHER WORD.
I REGARD THIS AS BEING A FAIR ASSESSMENT OF WHAT THE LAW
REQUIRES ME TO DO.
I THINK SOMETHING MORE IS IN ORDER BUT THIS IS WHAT THE
LAW GENERALLY PRESCRIBES AND SO THAT IS WHAT I WILL GIVE
HIM.
NOW JUST SO THAT I AM SURE THAT I DON'T MAKE A MISTAKE
HERE ABOUT YOUR UNDERSTANDING WHAT I'VE SAID, I HAVE
LISTENED AND LOOKED AT EVERYTHING I AM GOING TO LISTEN TO
OR LOOK AT WITH RESPECT TO THIS SENTENCING, AND SO DON'T
HAVE ANYONE GIVE ME ANYTHING MORE.
MR. RANDOLPH: THE COURT DID WANT ME TO FILE A MOTION?
THE COURT: NO, NO. I SAID YOU GIVE ME A PROPOSED ORDER FOR THE THINGS
YOU WANTED TO STRIKE FROM THE PRESENTENCE REPORT.
MR. RANDOLPH: I WILL DO SO.
MR. PAINTER: YOUR HONOR, IF THAT IS DONE BEFORE NEXT MONDAY'S HEARING
RATHER THAN FILE ANYTHING I WILL SIMPLY COMMENT AT THAT
MAYBE AT MONDAY'S HEARING.
THE COURT: THAT'S ALL RIGHT. I WILL DO THAT MYSELF AND NO MORE
ARGUMENT.
MR. PAINTER: ON RESTITUTION, YOUR HONOR, ARE YOU GOING TO WITHHOLD
MAKING A DECISION ON THAT UNTIL MONDAY?
THE COURT: WELL, WHAT HE IS CONCERNED ABOUT IS WHETHER RESTITUTION
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WILL BE IMPOSED ON HIM WHILE HE IS SERVING THE SENTENCE.
MR. RANDOLPH: THAT'S CORRECT, YOUR HONOR.
MR. PAINTER: OKAY. I THINK HE ALSO ARGUED IT SHOULDN'T BE IMPOSED,
BUT--
THE COURT: WELL, I AM NOT INTENDING TO DO THAT. I JUST LOOKED AT AN
ORDER TODAY WHERE YOU TAKE THAT OUT OF THE AMOUNT OF MONEY
THAT THE PERSON IS PAID FOR WORK IN PRISON, AND IT IS VERY
DIFFICULT TO IMPOSE THAT KIND OF AN A SENTENCE. I AM GOING
TO ORDER RESTITUTION.
MR. PAINTER: THANK YOU VERY MUCH.
MR. RANDOLPH: THE ONLY OTHER THING IS, YOUR HONOR, EARLY ON I HAD ASKED
THAT--I HAD INDICATED TO THE COURT THAT THE BUREAU OF
PRISONS WILL DESIGNATE MY CLIENT IN A--AS A DIFFERENT
DESIGNATION IF THERE WAS A FINDING THAT HE WAS A FUGITIVE
OR ABSCONDED DURING SUPERVISED RELEASE AS OPPOSED TO IF HE
WAS IN THAT STATUS AFTER SUPERVISED A RELEASE EXPIRED, SO
MAY I ASK THAT THE COURT AT LEAST FOR THE PURPOSE OF THE
RECORD IN THAT REGARD--YOU HAVE ALREADY INDICATED THAT--
THE COURT: WHEN I READ THE SENTENCE I WILL DO THAT.
MR. RANDOLPH: ALL RIGHT. THANK YOU.
THE COURT: NOW, IS THERE ANYTHING ELSE?
MR. RANDOLPH: NOTHING FURTHER.
MR. PAINTER: YOUR HONOR WILL POSTPONE DISMISSING ANY COUNTS UNTIL NEXT
MONDAY THEN?