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United States v. Kaczynski

November 16, 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*fn1

On November 8, 2010, Defendant Theodore John Kaczynski ("Kaczynski") filed an "Application to Stay the Court's Orders Regarding the Sale of His Writings and Papers Pending Appeal[,]" or in the alternative, "until November 18, 2010, to permit him to seek a stay . . . from the Ninth Circuit . . . ." (Def.'s Appl. to Stay the Court's Orders Pending Appeal ("Mot."), 1:18-22, ECF No. 785.) Kaczynski argues "the equities involved in this case strongly favor a stay[,]" since "if there is no stay . . . , there is the possibility that Kaczynski will lose some of his documents forever . . . ." Id. at 4:5-6, 13-14.

Kaczynski's November 8, 2010 stay motion was filed by Kaczynski's counsel on his behalf, but about a month before this stay motion was filed, Kaczynski filed a "Motion for Substitution of Counsel and Notice of Appeal" in which he requested a stay of the same orders, purportedly proceeding in propria persona while he was simultaneously represented by counsel. (ECF No. 778.) In light of Kaczynski's request for new appointed counsel, the court ordered Kaczynski's counsel to provide information concerning his request for another appointed lawyer, and did not immediately authorize Kaczynski to engage in hybrid representation.*fn2 (ECF No. 782.) However, on November 8, 2010, Kaczynski's counsel filed a "Withdrawal of Defendant's Motion for New Counsel," stating "Kaczynski authorized counsel to withdraw his motion for substitution of counsel[,]" thus mooting the hybrid representation issue. (ECF No. 784.)

A Minute Order issued requesting responses to Kaczynski's November 8, 2010 stay motion. (ECF No. 786.) The United States filed an opposition to Kaczynski's motion on November 12, 2010. (Opp'n to Def.'s Mot. to Stay, ("Gov. Opp'n"), ECF No. 788.) The Named Victims filed an opposition on November 15, 2010, in which they join the government's opposition and incorporate by reference the arguments they made in the "Named Victims' Response to [Kaczynski's] Motion to Modify August 4, 2010 Order." (Named Victims' Opp'n to Def.'s Mot. to Stay, ECF No. 790.)

Kaczynski's pending stay motion concerns orders issued after the Ninth Circuit's decision in U.S. v. Kaczynski, 551 F.3d 1120, 1128 (9th Cir. 2009) ("Kaczynski"), in which it affirmed the district court's approval of the government's plan ("Plan") for selling or disposing of Kaczynski's property seized during the investigation of his bombings.

Following the Kaczynski decision, a status conference was scheduled for the purpose of ascertaining the status of progress made under the Plan. The government, however, filed a status report in which it sought clarification of parts of the Plan. (ECF No. 758.) Clarification was eventually provided in an order issued on August 5, 2010, which supplemented the August 10, 2006 Order affirmed in Kaczynski. (ECF No. 771.)

On August 19, 2010, Kaczynski filed a motion to modify the August 5, 2010 Order, in which he included two alternative proposals "[p]roviding [him] a means of obtaining corrections" to his copy of his unredacted writings. (ECF No. 772, at 2:14-15.) Under his first proposal, Kaczynski requested the August 5, 2010 Order be modified to require the government to provide his counsel with a copy of his writings prior to any redactions, and to provide his counsel with ninety days after receipt of the copy within which to request new copies of any illegible or corrupted documents. Id. at 3:12-16. Kaczynski's second proposal requested the August 5, 2010 Order be modified to provide his counsel with one year after receipt of a copy within which to request new copies of any illegible or corrupted documents. Id. at 4:7-10. The second proposal would require "the government to keep its own copy of the original documents, prior to redaction, so that such applications [could] be fulfilled." Id. at 3:23-25.

The Court adopted Kaczynski's second proposal in an order filed September 17, 2010, but prescribed that he will receive a physical instead of an electronic copy since the Named Victims' opine that giving Kaczynski an electronic copy would "allow Kaczynski, in a manner of minutes, to upload to the Internet a complete and unredacted set of his writings," likely "reduc[ing] the auction value of the redacted originals." (ECF No. 775, 3:22-4:6; ECF No. 777.)

Kaczynski's motion to modify also requested that the August 5, 2010 Order be modified to include a "provision" for the disposal of papers seized from his cabin that are "the writings of others, e.g. letters from others to [him]." (ECF No. 772, 2:1-4.) Kaczynski argued "these documents are fairly characterized as essential to the communication of ideas in [Kaczysnki's] own writings because many of them are responses to [his] writings or related in some other manner to his writings and are thus logically disposed of in the same manner as [Kaczynski's] own writings." Id. at 5:6-5:9. The government objected to this modification request arguing:

Since January 26, 2003, when Kaczynski filed a motion that the personal property seized from his cabin, including his writings, be sold or returned to him, Kaczynski has alleged that he has a First in his writings Amendment right to disseminate his ideas embodied -- but until now he has never alleged that his First Amendment rights are somehow violated if he is not given copies of anyone else's writings. (ECF No. 773, 2:11-15.) The district court construed this objection as essentially raising a laches defense. (ECF No. 777, 8:2-5.)

I. DISCUSSION

Kaczynski's stay motion is premised upon two issues, which were raised in his motion to modify the August 5, 2010 Order: 1) whether "he should be afforded an opportunity to examine the copy of his documents provided by the government and make application for corrections prior to the sale of the documents;" and 2) if "the copy provided by the government should include all papers and documents seized from his cabin, not just documents written by himself." (Mot. 4:8-12.)

A) Timing of Kaczynski's Receipt of the Copy of His Writings

Kaczynski argues "it is probable that the Ninth Circuit will agree that [he] is entitled to review the copy provided by the government prior to the sale of his documents," citing two portions of Kaczynski in support of his argument. (Mot. 6:11-25.) The portions of Kaczynski upon which Kaczynski relies, however, do not dictate when the government must provide Kaczynski with copies of his writings. In discussing the ...


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