UNITED STATES OF AMERICA,

Plaintiff,

VS.
No. Cr. S-96-259 GEB

THEODORE JOHN KACZYNSKI,

Defendant.

Reported by:                SUSAN VAUGHAN, CSR No. 9673
                         A P P E A R A N C E S

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
      Federal Defender, Eastern District of California

      JUDY CLARKE

      Executive Director, Federal Defenders of

                     Eastern Washington and Idaho

                            JOHN P. BALAZS
                      Assistant Federal Defender,
                    Eastern District of California


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




                               -- 000 --

1                        SACRAMENTO, CALIFORNIA

2                   MONDAY, DECEMBER 22, 1997, 8:27 A.M.

3                             -- 000 ---

4           (The following ex parte hearing was held in the

5      courtroom, with Government's counsel and the public being

6      excluded.)

7           THE COURT: Good morning. Please call the case.

8           THE CLERK: calling criminal case S-96-259,

9      United States vs. Theodore Kaczynski.

10          THE COURT: Will you please state your appearances for

11     the record.

12          MR. DENVIR: Quin Denvir, Judy Clarke, Gary Sowards and

13     John Balazs for Mr. Kaczynski, who is present in Court.

14          THE COURT: Thank you.

15          This is a continuation of an ex parte hearing in camera

16     which I've authorized pursuant to the request of defense

17     counsel. I did that because defense counsel indicated to me

18     that there were communication issues involved that touch on

19     attorney-client communications and that the Government should

20     not be apprised of those communications, at least at this

21     stage of the proceeding and that it would also be appropriate

22     to exclude the public. Therefore, I granted the ex parte

23     request.

24          These things happen sometimes. There are times when

25     lawyers and clients have communication problems. That's why



               SUSAN VAUGHAN, CSR No. 9673 

                                                            2

1      there's precedent that allows me to do what I'm doing: so

2      that the judge can be involved, just to the extent necessary

3      to assist with the communication difficulty.

4           I gave you that preamble because I want you to know that

5      the extent of my involvement really depends on you. I--

6      shouldn't be involved more than necessary, but I should be

7      involved to the extent it's necessary.

8           THE DEFENDANT: (Nods head up and down.)

9           THE COURT: And I don't know when we will reach the

10     moment when my involvement is no longer needed, but if we do

11     reach that point, you need to let me know, because I don't

12     want to pry needlessly into those type of matters that are

13     generally held in confidence by the parties, counsel and the

14     defendant himself.

15          Is there anything you can say about the status of the

16     matter that could assist the Court in deciding how we should

17     proceed?

18          THE DEFENDANT: (Redacted material concerning

19     attorney-client communications.]

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

21     what was raised and characterized by defense counsel as a

22     hypothetical competency issue that is intertwined with

23     privileged matters surrounding representation.]

24          THE COURT: I gave the media a deadline for briefing the

25     question as to whether any aspect of this in camera ex parte



               SUSAN VAUGHAN, CSR No. 9673 

                                                            3

1      proceeding should be public. I also believe I gave the

2      parties an opportunity to brief the same issue.

3           It's possible that you haven't received my order because

4      we didn't fax the order. I think we just had the order

5      served.

6           MR. DENVIR: I think we did receive it, Your Honor.

7           (Discussion off the record between the clerk and the

8      Court.)

9           THE COURT: Are you going to respond to it? Are you

10     going to file a brief?

11          MR. DENVIR: I think we will, Your Honor; yes.

12          THE COURT: Would you cover in the brief you file the

13     components of the attorney-client privilege so that I can be

14     assured that everything -- if this is in fact your position

15     that everything that occurred on Friday was covered by the

16     doctrine?

17          MR. DENVIR: (Nods head up and down.)

18          THE COURT: I think it's pretty clear that the vast

19     portions, if not everything covered today, is covered by the

20     doctrine, but I'm curious about Friday.

21          (Discussion off the record between Mr. Balazs,

22     Mr. Denvir and Ms. Clarke.)

23          MR. DENVIR: I guess the question, Your Honor, was

24     whether you wanted simultaneous briefing by the media and ---

25     or can we just reply to the media?



               SUSAN VAUGHAN, CSR No. 9673 



                                                            4

1           THE COURT: I'd ask for simultaneous briefing.

2           MS. CLARKE: By the 29th?

3           THE COURT: I just mentioned Friday. I should have also

4      mentioned the conference call on Thursday.

5           MR. DENVIR: (Nods head up and down.)

6           THE COURT: Thank you.

7           MR. DENVIR: Our position -- I've got to tell you -- is

8      that all those matters, since they are attorney-client

9      matters, whether they're privileged, whether they involve

10     communications or not, they are matters that are ex parte and

11     confidential.

12          We will brief it.

13          THE COURT: The media has a different position on it.

14          is Mr. Kaczynski going to attend the peremptory

15     challenge portion of the hearing?

16          THE DEFENDANT: I think the -- my attorneys have just

17     advised me to go back to jail, because they may be in another

18     room.

19          Ms. CLARKE: we were going to ask the Court to allow us

20     to be in a different room from the Government so there can be

21     some discussion without, you know, whispering.

22          THE COURT: I see.

23          Ms. CLARKE: And something like that might be awkward to

24     drag Ted back and forth.

25          THE COURT: That's your decision.



               SUSAN VAUGHAN, CSR No. 9673 



                                                            5

1           THE DEFENDANT: All right. Then I'll go back to jail,

2      Your Honor.

3           THE COURT: All right. Thank you.

4           MS. CLARKE: Thank you, Your Honor.

5                        (Time noted: 9:45 a.m.)

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                        REPORTER'S CERTIFICATE

                               -- 000 --

STATE OF CALIFORNIA      )

                    ) SS.

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 1-5 and

 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:     MONDAY, DECEMBER 22, 1997



          IN WITNESS WHEREOF, I have subscribed this certificate at

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





SUSAN VAUGHAN, CSR No. 9673