Free Response to Motion - District Court of Arizona - Arizona

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DANIEL G. KNAUSS United States Attorney District of Arizona PETER SEXTON Assistant U.S. Attorney Arizona State Bar No. 011089 [email protected] Two Renaissance Square 40 N. Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Telephone: (602) 514-7500

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America, CR-02-993 PHX-FJM Plaintiff, v. Janice Gamblin, et al., Defendants. UNITED STATES' RESPONSE TO ROBERT JOHNSON'S AND GROUP ANGELIL INTERNATIONAL HOLDINGS' MOTION TO PRODUCE AND PRESERVE DOCUMENTS AND UNSEAL COURT FILE

Movants, Robert Johnson and Group Angelil International Holdings, seek an order 17 requiring the United States to preserve and produce all records in its possession related to this 18 criminal prosecution, and to unseal any sealed pleadings or proceedings. The United States joins 19 in the Response filed by defendants Ronald Wanchuk and Janice Gamblin (Doc. No. 261), and 20 incorporates by reference its Response in Opposition to Motion for Hearing Regarding Final 21 Order of Forfeiture (Doc. No. 259). This Response briefly addresses movants' motion to 22 preserve, produce and unseal. 23 1. 24 On October 9, 2007, undersigned counsel told movants' lawyers, at a meeting in the 25 United States Attorney's Office, that the records of the criminal investigation would be 26 maintained and preserved until all pending motions and requests were resolved. That continues 27 to be, and will remain, the position of the United States in this matter. 28 Preservation of Records.

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Unsealing Court Pleadings and Proceedings.

The United States believes all sealed matters can be unsealed. Counsel for defendants Gamblin and Wanchuk do not oppose unsealing. Assuming counsel for defendants Keith and Kimberlyn Salvato have no continuing need to seal any portion of the record, it would appear the Court can unseal all sealed matters. 3. Productions of Records.

At the eleventh hour, in a civil pleading in the context of a criminal matter, movants seek every single record the government possesses in an extremely voluminous criminal file. They even ask for confidential Presentence Reports that were prepared for the Court. Rule 32.2(c)(1)(B), Fed. R. Crim. P., provides that, in regard to ancillary proceedings, the Court may "permit the parties to conduct discovery in accordance with the Federal Rules of Civil Procedure if the court determines that discovery is necessary or desirable to resolve factual issues." In this context, given the lateness of the Petition, movants request for discovery should be deferred until the Court rules on the government's pending dispositive motion before the Court. Discovery in an ancillary proceeding is appropriate only after the Court has ruled on any dispositive motions filed under Rule 32.2(c)(1)(A), such as a motion to dismiss for lack of standing or a failure to state a claim. Fed. R. Crim. P. 32.2(c)(1)(B); see also, United States v. BCCI Holdings (Luxembourg), S.A., 961 F.Supp. 282, 285 (D.D.C.1997)(noting that it was not unreasonable for government to await outcome of its motion to dismiss before requesting discovery from third-party petitioner). 1/ Thus, no records will be produced to the movants until the Court so directs.

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The Advisory Committee explained that because ancillary proceedings can be enormously complicated, "procedures akin to those available under the Federal Rules of Civil Procedure," such as motions to dismiss, discovery, and motions for summary judgment, "should be available to the court and the parties to aid in the efficient resolution of the claims." Fed.R.Crim.P. 32.2 Advisory Committee Note to Subdivision (c); Pacheco v. Serendensky, 393 F.3d 348, 352 (2 nd Cir. 2004).

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Respectfully submitted this 9 th day of November, 2007.

DANIEL G. KNAUSS United States Attorney District of Arizona S/ Peter Sexton PETER SEXTON Assistant U.S. Attorney

I hereby certify that on November 9, 2007, I electronically transmitted the attached document to the Clerk's Office using the CM /ECF system for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Larry Hammond Maureen Beyers Osborn Maledon, PA 2929 N. Central, Suite 2100 P.O. Box 36379 Phoenix, AZ 85067-6379 Counsel for Ronald W anchuk Tyrone Mitchell, Esq. 1700 North Seventh Street, Suite 3 Phoenix, AZ 85006 Counsel for Keith Salvato Alexander Poulos Tiffany & Bosco 2525 East Camelback Road Phoenix, AZ 85016-4237 Counsel for M ovants Robert Johnson, et al. Thomas Hoidal Hoidal and Hannah, PLC 111 W est Monroe, Suite 1210 Phoenix, AZ 85003-1732 Counsel for Janice Gamblin

Adrian P. Fontes, Esq. 111 W est Monroe Street, Suite 425 Phoenix, AZ 85003 Counsel for Kim Salvato

S/ Peter Sexton

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