Government's Status Report and Application for Exclusion of Time

United States of America, Plaintiff v. Theodore John Kaczynski, Defendant.

TOPIC: Government's Status Report and Application for Exclusion of Time

DOCKET-NUMBER: CR-S-96-259GEB

VENUE: United States District Court for the Eastern District of California.

YEAR: Filed: July 18, 1996

JUDGE: Garland E. Burrell, U.S. District Judge

ATTORNEY(S): Charles J. Stevens, U.S. Attorney, Robert J. Cleary, Assistant U.S. Attorney, Stephen P. Freccero, Assistant U.S. Attorney, Bernard F. Hubley, Assistant U.S. Attorney, R. Steven Lapham, Assistant U.S. Attorney, Sacramento, For the Defendant.

Preliminary Statement

The Court had scheduled a status conference for July 19, 1996, at which time the Government anticipated that a motions schedule would be set. Defense counsel apprised the Government of its desire to defer for approximately 60 days the status conference and the ordering of a motions schedule. Owing to the large amount of discovery and the complexity of the case, the Government informed defense counsel that it would not object to a defense request for additional time.

Set forth below is certain information, in the nature of a status report, that may helpful to the Court. We have included an application for exclusion of time for speedy trial purposes and a proposed order excluding time.

1. Appointment of Ms. Clark

The Government has no objection to a discretionary appointment of second counsel at this time and takes no position with respect to which attorney should be so appointed. The Government does not know what sort of arrangements Ms. Clark is seeking for reimbursement of expenses and, hence, is unable to predict what her travel and per diem expenses will be.

Although the Government has no objection to appointment of counsel, it appears that appointment of second counsel under the Criminal Justice Act, 18 U.S.C. ss3005 et seq., is not mandatory, for the reasons that follow. The Department of Justice has in place a detailed protocol to be followed in all federal prosecutions, such as this, in which the death penalty may be sought. The death penalty protocol provides the defense with an opportunity to present all mitigating factors to the United States Attorney. The United States Attorney must submit a sentencing recommendation, along with the defense arguments in mitigation, to a Committee appointed by the Attorney General, including the Deputy Attorney General and the Assistant Attorney General of the Criminal Division. Defense counsel will be afforded the opportunity to personally present their mitigation arguments to the Committee. The Committee must then give its sentencing recommendation to the Attorney General. The Attorney General will then make the Manual, s9-10.000.

The defense has not yet formally presented its arguments in mitigation to the United States Attorney as the initial step set forth in the death penalty protocol. Accordingly, the Attorney General has not yet determined whether the Government will seek the death penalty in this case, and appointment of second counsel under the Criminal Justice Act is not required.

2. Scheduling

As set forth in detail below (see item 3), the Government has produced a considerable amount of evidence to the defense, commencing prior to the date of indictment. Included in this production is approximately 22,000 pages of documents. Defense counsel has advised the Government that they need more time to evaluate this information in order to formulate defense strategy, to decide which motions to file, and to determine how long it will take to prepare the motions. Accordingly, the Government does not object to the defense request to continue the July 19 status conference to September 20, 1996. The Government requests that at that time, the Court set a motions schedule, including a date for any change of venue motion the defense may wish to file.

3. Discovery

In broad terms, the Government has produced discovery on a very expeditious basis, with the bulk of the Rule 16 materials being provided to the defense on the day of indictment. Within the next few days, the Government will have made available to the defense the overwhelming majority of the Rule 16 discovery. Jencks material will be provided sufficiently in advance of trial so as not to delay the trial proceedings. Potential impeachment material, if any, will be provided at the same time. The Government is aware of its obligations under Brady v. Maryland, 373 U.S. 83 (1963) and will provide timely disclosure if any exculpatory material comes to light.

More specifically, since prior to indictment the Government has been providing the defense with a substantial amount of materials, consisting generally of: (a) all of the photographs of the evidence that was seized by the Government during the execution of a search warrant on the defendant's cabin in Montana, (b) all of the photographs of physical evidence from the sixteen so-called "Unabom" bombs, (c) all of the various "Unabom documents," i.e., correspondence written by the then-unidentified "Unabomber" and sent to several different individuals and publications, and (d) all of the nearly 200 letters written primarily between the defendant and his family. Further details concerning the discovery provided thus far, and discovery issues generally, are set forth in June 19, 1996, and June 24, 1996, letters to counsel, attached hereto as Exhibits A and B, respectively.

Within the next few days, we expect to provide the defense with numerous laboratory reports. Over the next several months, as the Government progresses with its forensic examinations of the voluminous physical evidence obtained from the defendant's cabin, it will continue to generate and produce to the defense, laboratory reports relating to those examinations.

Also within the next few days, in order to facilitate the defense's review of the discovery, the Government will designate a number of documents that it deems especially relevant to the crimes charged in the indictment and to the other Unabom bombings.

The Government continues to work with the defense to ensure that they have access to all discovery in the most efficient and meaningful manner. We do not anticipate any problems requiring.the Court's intervention in the discovery process.

4. Exclusion of Time

Section 3161(h)(8) excludes from the Speedy Trial calculation "[a]ny period of delay resulting from a continuance granted by any judge ... if the judge granted such continuance on the basis of his findings that the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial." In determining whether to grant such a continuance, a court may consider, among other factors, "[w]hether the case is so unusual or so complex ... that it is unreasonable to expect adequate preparation for pretrial proceedings ... within the time limits established by this section"; and "[w]hether the failure to grant such a continuance in a case which, taken as a whole, is not so unusual or so complex ... would deny counsel for the defendant ... the reasonable time necessary for effective preparation, taking into account the exercise of due diligence." 18 U.S.C. s3161(h)(8)(B).

The following factors support issuance of an "ends of justice" continuance under Section 3161(h)(8):

(A) During the search of the defendant's cabin between April 3 and April 14, 1996, the Government seized an enormous quantity of physical and documentary evidence. Indeed, the documents from the search amount to approximately 22,000 pages.

(B) The investigation in this case concerns a series of 17 bombs covering a 17-year time span. The Government has amassed a considerable amount of physical evidence obtained from those crime scenes. Although this has been made available for the defense's review in Washington, D.C., since the date of indictment, the defense has not yet had a chance to examine that physical evidence. [FN1]

FN1. Photographs of most of this evidence has been provided to the defense. See Exhibit A, pp. 3-5. End of FN.

(C) During the course of this lengthy investigation, the Government has obtained literally millions of pieces of information relating to other potential suspects and having no direct bearing on the defendant. For example, the Government's investigative files include drivers license information from several states and student records from various academic institutions. See Exhibit A, p. 7. Nonetheless, the Government has offered to make that information available to the defense, and the defense has accepted the offer. The bulk of that evidence is stored on computer and we have just begun discussing with defense counsel a format for producing that information. The defense has not yet reviewed that data.

(D) The defense has advised that it needs additional time to further develop its legal strategy and to evaluate potential motions.

On the basis of these factors, the Government submits, with the defendant's concurrence, that this is a "complex" case within the meaning of Section 3161(h)(8)(B)(ii) in that it is unreasonable to expect the defense to adequately prepare for pretrial proceedings or for trial within the time limits established by the Speedy Trial Act. In the alternative, the case qualifies under Section 3161(h)(8)(B)(iv) as one in which the failure to grant a continuance would deny the defendant "the reasonable time necessary for effective presentation, taking into account the exercise of due diligence." Under either alternative, for the reasons discussed, the ends of justice outweigh the best interest of the public and the defendant in a speedy trial. A proposed order excluding time from the speedy trial calculation is attached.

5. Trial Date

The Government is prepared to commence trial shortly after the resolution of all pretrial motions. With the exception of the Government's contemplated motion to admit certain evidence pursuant to Fed.R.Evid. 404(b), the scheduling and resolution of pretrial motions will depend largely on what notices and motions, if any, are filed by the defense. For example, Fed.R.Crim.P. 12.2(a) & (b) requires the defense to provide the Government with written notice if they intend to rely on the defense of insanity or if they intend to introduce expert testimony relating to a mental disease, defect, or other condition bearing upon the issue of whether the defendant had the mental state required for the offenses charged. If the defense were to serve such notice, we would anticipate a resultant delay as both sides prepare for psychiatric evaluations of the defendant and related evidentiary hearings.

The Government suggests that both parties be prepared to advise the Court at the next status conference what motions, if any, they intend to file so that a briefing schedule may be set. The Government expects that pretrial motions can be fully submitted by the end of this calendar year and requests that trial commence shortly after those motions are decided.

6. Other Matters--Computerization

Given the volume of evidence in this case, we have been evaluating ways to present the trial evidence in the most efficient manner that also is meaningful to the jury. To that end, and with the Court's permission, we would like to use a computer system in court for trial presentation. In particular, we would like to present photographic evidence through a system which incorporates compact discs and television monitors. In addition, we are contemplating using an imaging system to store and retrieve the voluminous documentary evidence in the case.

We expect to work out the details of this mode of presentation in consultation with defense counsel and will apprise the Court of our progress in this regard.

Dated: July 18, 1996

Respectfully submitted,

CHARLES J. STEVENS
United States Attorney
By: /s/Robert J. Cleary
ROBERT J. CLEARY
Special Attorney to the
U.S. Attorney General

EXHIBIT A

U.S. Department of Justice

United States Attorney
Northern District of California

11th Floor, Federal Building
450 Golden Gate Avenue, Box 36055
San Francisco, California 94102

June 19, 1996

BY OVERNIGHT COURIER

Michael Donahoe
Assistant Public Defender
Public Defenders of Montana, Inc.
2nd Floor
New York Block
46 No. Last Chance Gulch
Helena, Montana 59601

Re: United States v. Theodore J. Kaczynski

MCR 96-6-H-CCL (D.Mont.)

CR S 96-259-GEB (E.D.Cal.)

Dear Mr. Donahoe:

This letter provides discovery pursuant to Rule 16(a) of the Federal Rules of Criminal Procedure and seeks reciprocal discovery.

I. Disclosure By the Government Generally

The Government will provide discovery relating to, among other things, 17 separate bombing incidents, as set forth in the following table.

II. Discovery Ready To Be Picked Up

1. Photographs of Bombs and Non-Documentary Evidence: The following items presently are available for you to pick up at the U.S. Attorney's Office in Helena, Montana:

(A) six soft-cover binders which contain photographs of predominantly non- documentary evidence (including X-rays of a bomb) that we seized during the search of your client's cabin. The only such evidence that was not photographed were items K1683 through K1686 [FN1] (vacuum sweepings and debris);

FN1. "K---" and "Q---" are the designations used by the FBI Laboratory to identify evidence submitted to it. Complete listings of all of these designations and the evidence to which they refer are contained in the Lab reports which will be provided at a later date. End of FN.

(B) one hard-cover 3-ring binder which contains photographs of predominantly non-documentary evidence relating to bomb 16. The only such evidence that was not photographed were the following items: Q178-180 (paneling), Q186-188 (swabs) Q203 (3 envelopes), Q232 (suit coat), Q238 (debris, destroyed as a biohazard), Q239 (swabs), Q242 (ceiling tile, destroyed as a biohazard), Q243 (counter top), Q245 (notebooks), Q257-259 (vacuum sweepings), Q262 (table paper), Q271-272 (swabs), Q295 (paper), Q296 (ceiling tile), Q297 (debris, destroyed as a biohazard), Q300 (debris), Q302 (debris), Q308 (debris, destroyed as a biohazard), Q312 (glass fragments), and Q313 (debris);

(C) one hard-cover 3-ring binder which contains photographs of predominantly non-documentary evidence relating to bomb 15. The only such evidence that was not photographed were the following items: Q24 (2 microcassette tapes), Q45 (wood pieces, counter top), Q108 (miscellaneous debris), Q109 (leaf), Q11O (screw), Q112 (2 microcassette tapes), Q121 (bed sheets), Q130-132 (swabs), and Q133 (pack of cigarettes);

(D) one hard-cover 3-ring binder which contains photographs of predominantly non-documentary evidence relating to bombs 13 and 14. The only such evidence that was not photographed were the following items from bomb 14: Q160 (fragments of paper), Q183 (fragments of paper), Q184 (fragments of metal and plastic), Q187-188 (white sheets), Q193 (hospital gown), Q194-195 (sheets), and Q196 (medical waste). This binder also contains a series of photographs which compare various aspects of bombs 13 and 14;

(E) one hard-cover 3-ring binder which contains photographs of predominantly non-documentary evidence relating to bombs 11 and 12. The only such evidence that was not photographed were items Q103, Q106 and Q108 (all of which are debris from bomb 11);

(F) one hard-cover 3-ring binder which contains photographs of predominantly non-documentary evidence relating to bombs 7, 8, 9 and 10;

(G) one hard-cover 3-ring binder which contains photographs of predominantly non-documentary evidence relating to bombs 1, 2, 3, 4, 5 and 6;

(H) one hard-cover 3-ring binder which contains various comparison photographs of some of the components from some of the bombs listed above; and

(I) one hard-cover 3-ring binder labeled "Unabom Photographs for Defense" which contains photographs of documentary and non-documentary evidence such a typewriter, maps, and carbon paper.

2. Photographs of Documentary Evidence: The following items presently are available for you to pick up at the U.S. Attorney's Office in Helena, Montana:

(A) one hard-cover 3-ring binder which contains photographs of the packages, cover letters, and copies of the "Unabom Manifesto" (a 56-page document, plus notes, entitled: "Industrial Society and Its Future") that were sent to the New York Times, the Washington Post, Penthouse Magazine, and Professor Tom Tyler. This binder also contains a photograph of a 2-page letter sent to Scientific American magazine.

(B) one hard-cover 3-ring binder labeled "Documents," which contains photographs of miscellaneous letters, labels and stamps relating to some of the bombs listed above;

(C) four wooden crates containing photographs of the documents the Government seized during the search of your client's cabin. We shot 33 rolls of negatives in photographing all of this documentary evidence. Those rolls of negatives are numbered 1-29, 30A, 30B, 31A, and 31B. Each roll of negatives resulted in one or more rolls of prints. These are the prints that are provided to you in the four wooden crates. Each roll of prints is labeled with the negative roll from which it was developed. In those instances in which a single roll of negatives resulted in multiple rolls of prints, the latter are labeled with a negative roll number and a "Part" number. For example, if negative roll 7 created three rolls of prints, those rolls of prints would be labeled "Roll 7, Part 1," "Roll 7, Part 2," and "Roll 7, Part 3."

3. Lists: In order to facilitate your review of the evidence that the Government seized from your client's cabin, the following lists presently are available for you to pick up at the U.S. Attorney's Office in Helena, Montana:

(A) an eight-page list entitled "Items Photographed." This list provides the FBI's Laboratory "Specimen Number" (see footnote 1, above) for all documentary evidence seized from the cabin and tells you which roll of negatives contains the photograph of that document. This list also contains a column headed "FO#." This is the designation ascribed to the evidence by the Evidence Response Team that searched the cabin (hereinafter "ERT Number"). This information is provided to you because you will see references to this alpha-numeric designation in the FBI Lab Reports;

(B) an eight-page list entitled "Items Not Photographed." This list provides the Specimen Number, the ERT Number, and a description of all evidence which was seized from the cabin but not photographed; and

(C) a ten-page list entitled "Books." Included in this list are all books, papers, and maps that were seized. No books or educational papers were photographed, although loose papers that were contained in-books were photographed and presently are available to you (see section II2(C), above). Generally, only the front cover of maps were photographed. [FN2] However, if a particular section of a map had some writing on it, such as a circle around a particular location, that portion of the map was photographed and presently is available to you (see section II2(C), above).

FN2. There is one exception to this general rule: one map which was in tatters was not photographed at all. However, it is included in the listing of maps referred to above and is presently available for your inspection (see section IV1). End of FN.

III. Discovery Provided Herein

Included in this package are the following documents:

(A) 816 pages of material consisting of photocopies and photocopies of photographs, of 122 letters written by your client predominantly to members of his family, some of which are undated and the rest of which are dated from September 16, 1968 to November 30, 1995, and newsclippings and essays (T 1-122); photocopies of additional letters and other materials (T 122--178) will be forwarded to you within the next week. Along with these materials we are including, for your convenience, 2 indices which correlate the documents based on their "T" number designation (an internal numbering designation) with the corresponding "K" laboratory designation.

(B) a binder labeled "Letters/Labels/Stamps" which contains photographs of those various items, including 13 documents written by the then-unidentified "Unabom" subject, dated from June 3, 1980 to June 24, 1995.

IV. Miscellaneous Discovery

1. Physical Evidence Available for Inspection: Some pieces of physical evidence have not been photographed, e.g., items that were not germane to the Lab Reports (see section II1(A) through (E), above). In addition some of the documentary evidence seized from your client's cabin was not photographed, e.g., books, educational papers, and maps (see section II3(C), above). As noted above, a complete listing of the cabin evidence that we did not photograph is available to you at the U.S. Attorney's Office in Helena, Montana (see section II3(B), above). In any event, all physical and documentary evidence that was not photographed--- as well as that which was photographed--is available for your inspection at the FBI Laboratory in Washington, D.C. Please let me know if you wish to inspect these items, and I will make the necessary arrangements.

2. Computer and Other Evidence Unrelated to Mr. Kaczynski: As you can tell from the table on pages 1-3, above, this investigation has been on-going, in different forms, for many years. During that time, evidence was developed relating to other, potential suspects. In addition, voluminous records and other information was obtained that was not suspect-specific, e.g., drivers license information from various states and student records from different academic institutions. Much of this evidence has been stored on a large main- frame computer. Except for the fact that your client's name was included among certain records that we obtained from Harvard University and the State of Illinois, none of this evidence relates to your client. Enumerated below are some of the categories of information that we have stored on the mainframe computer:

(A) employment records

(B) business customer lists

(C) airline flight records

(D) business phone directories

(E) records from the California Department of Corrections.

In addition, we have numerous Lab Reports which exculpate some of the prior suspects in the investigation and which are completely unrelated to your client. We do not intend to use those reports as evidence in chief at trial. Further, we do not believe them to be in any way relevant, let alone material, to the preparation of the defense. See Fed.R.Crim.P. 16(a)(1)(D).

We would be happy to make the information listed in this subsection available to you, subject to certain protective orders, if you want to review it. Please let us know if you do wish to inspect this data and, if so, in what format.

3. Brady disclosures: Pursuant to our obligations under Brady v. Maryland, 373 U.S. 83 (1963), and its progeny, we are informing you of the following facts: (1) bank records from the Western Federal Savings Bank in Helena, Montana, reveal that a check was deposited to your client's account on December 11, 1985 (the deposit slip was dated December 9, 1985; (2) in 1981 the laboratory of the Bureau of Alcohol, Tobacco & Firearms concluded that bomb #5 was a hoax and not designed to detonate; (3) we have uncovered in excess of 20 latent fingerprints and/or palmprints from crime scene debris or correspondence associated with Unabom events, some of which were identified and some were not identified, and none of which are the fingerprints of your client; (4) you may wish to speak to Professor Noel Reynolds of the Political Science Department at Brigham Young University, Provo, Utah, concerning word print analysis of the Unabom subject. We direct you to this information in an abu ndance of caution and without conceding that the information is, in fact, exculpatory. The Government will provide potential impeachment material, if any, at the time it provides prior statements of witnesses pursuant to Title 18, United States Code, Section 3500.

4. Summaries of Expert Witness Testimony: Written summaries of testimony the Government intends to offer under Fed.R.Evid. 702, 703 and 705 as evidence at trial will be provided at a later date.

V. Disclosure By the Defendant

The Government hereby requests reciprocal discovery under Fed.R.Crim.P. 16(b). Specifically, we request that you allow inspection and copying of: (1) any books, papers, documents, photographs, and tangible objects, or copies or portions thereof, which are in the defendant's possession, custody or control, and which the defendant intends to introduce as evidence or otherwise rely on at trial; and (2) any results or reports of physical or mental examinations and of scientific tests or experiments made in connection with this case, or copies thereof, which are in the defendant's possession or control, and which the defendant intends to introduce as evidence or otherwise rely on at trial or which were prepared by a witness whom the defendant intends to call at trial. We further request that you disclose a written summary of testimony you intend to use under Fed.R.Evid. 702, 703 and 705 as evidence at trial. This summary should describe the opinions of the witness, the bases and reasons therefore, and the witness's qualifications.

Pursuant to Fed.R.Crim.P. 26.2, the Government also requests that the defendant disclose prior statements of witnesses the defendant will call to testify. We request that such material be provided on the same basis upon which we agree to supply the defendant with Section 3500 material relating to Government witnesses.

We wish to remind you that Fed.R.Crim.P. 12.2(a) & (b) requires you to provide the Government with written notice if the defendant intends to rely on the defense of insanity at the time of the alleged crime or intends to introduce expert testimony relating to a mental disease, defect, or other condition bearing upon the issue of whether he had the mental state required for the offenses charged.

The Government requests a response to its Rule 12.2 demand within the time period allowed by the Court for the filing of pre-trial motions.

* * * * * *

Please contact me at your earliest convenience concerning any further discovery which you may request.

Very truly yours,

ROBERT J. CLEARY
Special Attorney to the
U.S. Attorney General

/s/Stephen P. Freccero
by: STEPHEN P. FRECCERO
Special Attorney to the
U.S. Attorney General

EXHIBIT B

U.S. Department of Justice
United States Attorney
Northern District of California

11th Floor, Federal Building
450 Golden Gate Avenue, Box 36055
San Francisco, California 94102

June 24, 1996

HAND DELIVERY

Quin Denvir
Federal Defender
Eastern District of California
801 K St., 10th Floor
Sacramento, CA 95814

Re: United States v. Theodore J. Kaczynski

CR S 96-259-GEB (E.D.Cal.)

Dear Mr. Denvir:

This letter supplements a letter dated June 19, 1996 which was sent to Michael Donohoe, Esq. by overnight courier. A copy of that letter was provided to you on June 21, 1996 in Sacramento, California.

Included along with this letter are additional documents which had been previously referred to in Section III(A) of the June 19, 1996 letter, specifically photocopies and photocopies of photographs, of 56 letters written by your client predominantly to members of his family, some of which are undated and the rest of which are dated from August 10, 1968 to November 30, 1995, and newsclippings and essays (T 122--178). Along with these materials we are including, for your convenience, 2 indices which correlate the documents based on their "T" number designation (an internal numbering designation) with the corresponding "K" laboratory designation. These indices are updated versions of the indices previously provided and encompass the additional materials which are being provided along with this letter.

Pursuant to our obligations under Brady v. Maryland, 373 U.S. 83 (1963), and its progeny, we are providing you with a copy of a letter dated April 19, 1996 purportedly sent by the "Freedom Club" and addressed to Louis Freeh, Director of the FBI. We direct this material to you in an abundance of caution and without conceding that the information is, in fact, exculpatory.

Please contact me at your earliest convenience concerning any further discovery which you may request.

Very truly yours,
ROBERT J. CLEARY
Special Attorney to the
U.S. Attorney General

/s/Stephen P. Freccero
by: STEPHEN P. FRECCERO
Special Attorney to the
U.S. Attorney General