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United States v. Kaczynski

September 17, 2010

UNITED STATES OF AMERICA, PLAINTIFF,
v.
THEODORE JOHN KACZYNSKI, DEFENDANT.



The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge

ORDER

Defendant Theodore John Kaczynski ("Kaczynski") filed a motion on August 19, 2010, to modify the August 5, 2010 Order, which supplemented the court-approved plan developed to sell or dispose of the property seized during the criminal investigation of Kaczynski's criminal bombings. Specifically, Kaczynski seeks to modify the August 5, 2010 Order to 1) provide a mechanism to request corrections to the electronic copy of his original writings, which the government is to provide his counsel after the conclusion of the auction, and 2) to provide for "the disposal of papers that were seized from [his] cabin that are not [his] own writings, but the writings of others...." (ECF No. 772, 1:25-2:4.)

Kaczynski argues he is entitled "to an opportunity to request that the government replace any illegible or corrupted documents that may exist in the electronic copy provided by the government in the first instance." Id. at 2:11-13. His motion includes two alternative proposals to ensure his receipt of a complete copy of his writings. Kaczynski first proposes that the government provide his counsel an electronic copy of his original writings "[p]rior to any redactions[,]" and that after receipt of the copy his counsel be given ninety days in which "to examine the electronic copy and apply to the government for correction of any illegible document or corrupted file contained in the initial copy." Id. at 3:12-16. Kaczynski argues "if the Court is not willing to order that the auction be delayed [for 90 days] to ensure that [he] receives a complete, exact copy of his documents," his alternative, second proposal should be adopted. Id. at 3:19-23.

Kaczynski's second proposal provides for "one year from the date in which the electronic copy is originally provided to [Kaczynski's] counsel during which he can, through counsel, make application to the government for a new copy of any illegible or corrupted document or file." Id. at 4:7-10. Kaczynski notes this proposal requires "the government to keep its own copy of the original documents, prior to redaction, so that such applications can be fulfilled." Id. at 3:23-25.

Kaczynski further argues in his motion that a provision should be made for the writings seized, other than those he authored, since "these items have not been dealt with separately in the litigation." Id. at 4:27-5:1, 5:10-16. Kaczynski states:

The simplest, least costly method for disposing of such documents is to either return them to Mr. Kaczynski or copy such documents along with Mr. Kaczynski's own writings and include them in the electronic copy to be provided to counsel. Such method avoids any additional litigation should the government's implementation of the order lead to the destruction or loss of such documents. Further, these documents are fairly characterized as essential to the communication of ideas in Mr. Kaczysnki's own writings because many of them are responses to Mr. Kaczynski's writings or related in some other manner to his writings and are thus logically disposed of in the same manner as Mr. Kaczynski's own writings.

Id. 5:2-9.

The government objected to Kaczynski's motion in a filing on August 26, 2010, in which it argues, inter alia, "[the] motion is a transparent attempt to prevent the sale of his property, to keep wasting this Court's time and scant resources, and to continue victimizing the victims[, which] should be summarily denied." (ECF No. 773, 2:7-9.) The government also argues Kaczynski waited "two months after the [status conference]" to request the ability to compare his electronic copies to the originals, and "he has never [previously] alleged that his First Amendment rights are somehow violated if he is not given a copy of anyone else's writings." Id. 2:3-7, 2:13-15.

An order issued on September 3, 2010 requesting "[c]counsel for the United States, Theodore John Kaczynski, and the Named Victims... to discuss Kaczynski's objection concerning when Kaczynski's counsel shall be provided an electronic copy of Kaczynski's original writings as they appeared prior to redactions." (ECF No. 774, 1:12-16.) The September 3, 2010 Order includes the statement: "the Court desires further input on this objection in a filing or filings due no later than September 13, 2010." Id. 1:21-23.

The Named Victims filed a response on September 13, 2010. (ECF No. 775.) In their response, the Named Victims object to Kaczynski's first proposal that he be granted 90 days before the auction to apply for corrections to the electronic copy of his writings, arguing "the long-planned auction would be delayed another 90 days while Kaczynski's [counsel] quality-checks the electronic version of the unredacted writings." Id. 1:21, 1:24-26. The Named Victims contend the delay is "unfair and unnecessary" because, inter alia, it represents yet another attempt by Kaczynski to privilege his own asserted rights above the Named Victims' right to compensation. What he seeks is nothing less than perfection. Based on the miniscule risk that a handful of the 40,000 pages at issue here fails to meet his standard of legibility, the victims will suffer-at a minimum-another three months' [sic] delay in receiving money that their families vitally need.

But Kaczynski is not entitled to perfection-merely to a reasonable accommodation.... Indeed, the Ninth Circuit held years ago that the auction plan must seek to maximize monetary returns for the victims if it is to "defeat" Kaczynski's countervailing right to the return of his property.... That approach-mandating the design and implementation of an auction plan capable of "defeat[ing]" Kaczynski's rights-certainly does not privilege those rights above the Named [Victims'] rights or give him a veto over the auction whenever some detail of it is not to his liking.

Id. 1:26, 2:5-18. The Named Victims further argue that any infringement to Kaczynski's First Amendment rights in not receiving an exact copy of his original writings is de minimis and does not give rise to a First Amendment claim. Id. at 2:21-3:11.

The government also filed a response to Kaczynski's objection on September 13, 2010 in which it "concurs with the Named Victims'" responses to Kaczynski's modification motion. (ECF No. 776, 2:13.)

The government and Named Victims do not object to Kaczynski's second proposal in which he requests a one-year period after receipt of his copy within which he can "[apply] to the government for a new copy of any illegible or corrupted document or file, and [have] the government... comply with such application provided it is made within that one-year window of time." However, the ...


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