Reported by: SUSAN VAUGHAN, CSR No. 9673

For Plaintiff UNITED STATES OF AMERICA:

(No appearance)

For the Defendant:

OFFICE OF THE FEDERAL DEFENDER
801 "K" Street, Suite 1024
Sacramento, CA 95814
By: QUIN A. DENVIR (appearing via speakerphone)
Federal Defender, Eastern District of California
JUDY CLARKE (appearing via speakerphone)
Executive Director, Federal Defenders of
Eastern Washington and Idaho

STERNBERG, SOWARDS & LAURENCE
604 Mission St., 9th floor
San Francisco, CA 94105
BY: GARY D. SOWARDS (appearing via speakerphone)

Also Personally Present: Brian Means, Law Clerk<
Thad Behrens, Law Clerk

                               -- 000 --
1                   SACRAMENTO, CALIFORNIA

2              THURSDAY, DECEMBER 18, 1997, 4:24 P.M.

3                        -- 000 ---

4    (The following ex parte discussion was held in chambers.

5  Mr. Denvir, Ms. Clarke and Mr. Sowards were present via

6  speakerphone. Neither Government's counsel nor the defendant

7  was present.)

8    THE COURT: Mr. Denvir.

9    MR. DENVIR: Yes, Your Honor.

10   THE COURT: I received the letter you sent me, which is

11 dated December 18, with attachments. Is this a good time to

12 talk to you about procedures to be followed, or would you

13 prefer to do that at some other time?

14   By the way, this is being reported.

15   MR. DENVIR: Yes, Your Honor. Judy Clarke and

16 Gary Sowards are here. And this is as good a time as any, I

17 guess.

18   THE COURT: My question is, do you have procedures in

19 mind that you would like to have the Court employ? It appears

20 that we need a hearing. I agree with you -- I mean, unless

21 the situation has changed since you presented the letter ---

22 there should be an ex parte in camera hearing so that we can

23 obtain your client's views.

24   MR. DENVIR: Yes, Your Honor, I think that's correct.

25 we did see Mr. Kaczynski after the letter went over, and the



          SUSAN VAUGHAN, CSR No. 9673 



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1  situation has  not changed I do not thing that it will.  I think

2  that this, as you can see, had a long history, and I think

3  it's -- his positions are pretty firm, as set forth in the

4  letter. And I think probably the next step would be to have

5  an ex parte in camera hearing where you could explore with

6  Mr. Kaczynski where -- further what he set forth in the

7  letter, and we could respond or play whatever role you like.

8    THE COURT: How about the timing of the hearing? Have

9  you given that any thought? When would you like to have the

10 matter heard?

11   MR. DENVIR: I would think as soon as the Court could do

12 it, it would be better. This is obviously a major problem,

13 and with the jury procedures coming up and opening statement,

14 it seems it needs to be addressed.

15   THE COURT: You want to do it tomorrow?

16   MR. DENVIR: Absolutely. We're available at your

17 convenience. we told Mr. Kaczynski that you would likely have

18 him brought over, and probably tomorrow, because of the

19 timing. So we'd be available anytime you want tomorrow.

20   THE COURT: I have a hearing scheduled tomorrow which I

21 could continue, if necessary. That hearing is scheduled to

22 commence at 9:00 o'clock. I don't anticipate the hearing

23 lasting more than an hour, if it lasts that long.

24   MR. DENVIR: I would think, Your Honor, we could do it

25 at 10:30, then, or whenever the marshals could bring him



          SUSAN VAUGHAN, CSR No. 9673 



1  over. I don't imagine  - - don't think that this initial

2  hearing would take more than an hour, hour and a half. You

3  just need an opportunity to explore with Mr. Kaczynski and

4  counsel where things are and try to figure out where to go

5  from here. We are all very unhappy and sad to be in this

6  position, but we are in the position. we have to do, I guess,

7  what we can.

8    THE COURT: Do you contemplate providing me with any

9  authority that would help the Court consider the issues that

10 are presented at the hearing?

11   MR. DENVIR: Your Honor, I don't think we had planned on

12 that.

13   [Discussion, redacted at defense counsel's request, of

14 what was raised and characterized by defense counsel as a

15 hypothetical competency issue that is intertwined with

16 privileged matters surrounding representation.]

17   MR. DENVIR: If you'd like, we could have whatever you

18 wanted in the afternoon. In the meantime, we would try to get

19 those authorities together and get them over to chambers as

20 soon as possible. Maybe the Court, in order to have it

21 available, would rather schedule it for more like 3:30

22 tomorrow. We would try to get it to you by noon or

23 11:00 o'clock if we can, or if we brief one issue we will get

24 it over to you.

25   THE COURT: I like that approach. And I think we will



          SUSAN VAUGHAN, CSR No. 9673 



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1  schedule it for 3:30. I'll call over to the marshal.

2    I assume we're done with those matters.

3    MR. DENVIR: Yes.

4    THE COURT: I wanted to bring something else to your

5  attention.

6    I received information in chambers -- I personally

7  didn't receive it, but an individual on my staff received this

8  information  -- we received the information right around

9  4:00 o'clock  -- that a reporter, a news reporter named

10 Christina Craft has unsuccessfully attempted to meet with

11 Mr. Kaczynski, allegedly at his request, but was denied

12 access. I've also been informed that Ms. Craft is considering

13 legal action to compel the marshals to allow the visitation.

14   I thought I should bring that to your attention.

15   MR. DENVIR: I think we're aware of Ms. Craft and what

16 she is doing, Your Honor. We appreciate that, and I think

17 we're dealing with the client on that. It's a client

18 question. And just as of today we've provided information so

19 he is in a position to contact her as he likes. And if he

20 says he wants the visitor, then we will make those

21 arrangements.

22   To let you know, we are aware of Ms. Craft's concerns,

23 and I think we're addressing them with the client, since we

24 think it is the client's decision in that regard, not

25 Ms. Craft's.



          SUSAN VAUGHAN, CSR No. 9673 



1    THE COURT: I have another matter -- just a moment.

2    (Pause in the proceeding.)

3    THE COURT: What did you want me to do with the

4  communications you sent over?

5    MR. DENVIR: The letters from Mr. Kaczynski and our

6  cover letter?

7    THE COURT: Right. Right.

8    MR. DENVIR: We would ask, Your Honor, that they be

9  sealed until further order of the Court, until the Court can

10 determine -- as you can see, there's attorney-client ---

11   THE COURT: I agree.

12   MR. DENVIR: -- communications in there, and underlying

13 this entire matter there will be a need to explore some of

14 those things. So we think that, given the case that we cited

15 you and just the very nature of it, you're fully authorized to

16 treat it ex parte and in camera.

17   THE COURT: I think I'd have to file an order. Let me

18 get your input.

19   My inclination, then, would be to file an order today

20 that states, "I've received a written communication from

21 defendant's counsel that, based on a preliminary review, does

22 not appear to contain matters to which the public or press

23 possess a contemporary right of access. Pending resolution of

24 this matter, the clerk of the court is directed to

25 provisionally file the subject document under seal. On



          SUSAN VAUGHAN, CSR No. 9673 -- (9i6) 446-1347



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1  December 18, '97 an in camera hearing was conducted on the

2  matter for the purpose of determining the necessity of further

3  in camera hearings concerning the matter."

4    MR. DENVIR: That seems to me to fit the bill perfectly,

5  Your Honor.

6    THE COURT: Okay. Thank you ---

7    MR. DENVIR: (Redacted material concerning

8  attorney-client communications.]

9    THE COURT: I appreciate that. Does the Government know

10 about this problem?

11   MR. DENVIR: They know about this problem, Your Honor.

12 They've known for a couple weeks now, as Mr. Kaczynski has

13 indicated, there was a delay in his having the letter

14 delivered while we dealt with the Government on the question

15 of resolving the case. I have not informed them of this

16 letter. I can certainly call Mr. Cleary. He understands the

17 nature of the problem -- I don't know the details -- but that

18 there is a problem. If you want, we can advise them of that,

19 or actually your order may tell them all they need to know.

20   THE COURT: Are you in a position to fax over the

21 Government's letter? I'm not sure that I can find that

22 readily.

23   MR. DENVIR: I -- if you'll give me one moment I can

24 tell you whether I have that. I think ---

25   (Pause in the proceeding.)



          SUSAN VAUGHAN, CSR No. 9673 



                                                       7

1    MR. DENVIR: You're referring to the one about the

2  competency question?

3    THE COURT: Correct.

4    MR. DENVIR: if you give me one moment, I think I . . .

5    (pause in the proceeding.)

6    MR. DENVIR: Yes, Your Honor. It was a November 21st

7  letter, and I do have a copy of it. We can fax it over to

8  you. Can I make sure we have the Court's fax number? I'm

9  sure we do, but just ---

10   THE COURT: Yes. We're going to get that now. I'm

11 going to check with my secretary to make sure I don't give you

12 the wrong number.

13   MR. BEHRENS: It's [fax number deleted].

14   THE COURT: [Fax number deleted].

15   MR. DENVIR: I have it right in my hand. I'll send it

16 over. I believe it's a two-page letter dated November 21.

17   THE COURT: Thank you very much.

18   MR. DENVIR: Thank you, Your Honor.

19   THE COURT: It's adjourned.

20                  (Time noted: 4:40 p.m.)

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                        REPORTER'S CERTIFICATE

                               -- 000 --

UNITED STATE OF CALIFORNIA    )

                         )

COUNTY OF SACRAMENTO          )

       I, SUSAN VAUGHAN, certify that I was the official court

 Reporter and that I reported verbatim in shorthand writing the

 foregoing proceedings; that I thereafter caused My shorthand writing

 to be reduced to typewriting; and that the pages numbered 1-7

 inclusive, constitute a complete, true and correct record of said

 proceedings:

             COURT: U.S. District Court Eastern District of California



             JUDGE: Honorable GARLAND E. BURRELL, JR., Judge



             CAUSE: U.S. vs.  Theodore Kaczynski Case No. Cr.  S-96-

                  259 GEB



          DATE:     THURSDAY, DECEMBER 18, 1997



          IN WITNESS WHEREOF, I have subscribed this certificate at

 Sacramento, California, on the 26th day of December, 1997.





SUSAN VAUGHAN, CSR No. 9673