Free Reply to Response - District Court of Arizona - Arizona

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PATRICIA A. GITRE, P.L.C. Patricia A. Gitre 331 N. First Avenue, Suite 150 Phoenix, Arizona 85003 State Bar No: 011864 (602) 452 - 2918 fax (602) 532 ­ 7950 patgitre@patriciagitre,com Attorney for Gina Anderson IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

UNITED STATES OF AMERICA, Plaintiff, vs. GINA ANDERSON, Defendant.

CR04-1281-PHX-DGC REPLY TO GOVERNMENT'S RESPONSE MOTION TO UNSEAL PLEA AND SENTENCING PROCEEDINGS AND MOTION FOR PAYMENT OF PLEA AND SENTENCING TRANSCRIPTS AND DISCLOSURE OF PRESENTENCE INTERVIEW REPORTS

Defendant Gina Anderson through counsel replies to the government's response (#90) to Defendant's Motion to unseal and obtain transcripts of plea, sentencing, and any other relevant proceedings including presentence reports. The government contends without any basis, that this court has no authority to unseal any of the above cases. These cases are all located in the Federal District Court of Arizona and therefore, does not exceed the jurisdiction of this Court.1 The federal government requested that these files be sealed and it has the authority to unseal the same files. The defense seeks disclosure of the entire file not just what the

Even if it was in another federal jurisdiction, if the Arizona District Attorney's office indirectly or directly caused the matters to be sealed, this Court would have jurisdiction to order the government to seek an order to unseal.
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Case 2:04-cr-01281-DGC

Document 94

Filed 02/16/2006

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government believes should be disclosed as material that is not contained with the plea agreements, minute entries or judgments may be relevant to the defense. Second, the government claims that the defense is not entitled to transcripts of the sealed records without this Court's in camera review. The procedure set for in United States v Alvarez, 358 F.3d. 1194 (9th. Cir. 2004) relates to presentence reports only and does not cover other proceedings. The defense seeks transcripts of any cooperating witnesses whether or not they are called at trial, by the government as the defense may want to call the same witnesses to impeach the government's witnesses. Third, the defense is entitled to disclosure of this information and the government has not proffered

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any legal basis why the defense is not entitled to transcripts of relevant and material proceedings. Each of the identified individuals provided information to the government regarding drug deals at the border and with Michael Anderson. Each has obtained a favorable deal or a dismissal of all charges as a direct result of their information provided to the government. Further, Maria de Lourdes Newell (CR01-00384-EHC-1) is or was married to Jose Florencio Arvizu-Montijo (CR01-00384-EHC-1), Luis Javier Villegas- Ruiz (CR02-00514JAT-3) and (CR92-00255-FRZ-CRP) is a friend of these individuals and Dayan Alberto Tassinari-Rodriguez (CR99-00659) is Ms. Newell's son. Because of their family relationship their individual and collective bias, truthfulness, motive, credibility, and reliability are areas the defense is constitutionally entitled to explore on cross examination or its defense case. United States v. Schoneberg, 396 F.3d 1036, 1042 (9th. Cir. 2005) ["Where a plea agreement allows for some benefit or detriment to flow to a witness as a result of his testimony, the defendant must be permitted to cross examine the witness sufficiently to make clear to the jury what benefit or detriment will flow, and what will trigger the benefit or detriment, to show why the witness might testify falsely in order to gain the benefit or avoid the detriment."]. In the case of Tassinari (the chief informant against Michael Anderson), the government dismissed a 28 count indictment against him for

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structuring money laundering charges2. The government has no direct evidence to establish that Michael Anderson was involved in receiving bribes from drug dealers at the border. At best, it has circumstantial evidence that he had more money than he reported on the joint tax returns. With these facts, it cannot be seriously disputed by the government that the information they provided to the government and the deals they were ultimately given by the government in exchange for their testimony and information regarding Michael Anderson and Gina Anderson is irrelevant or immaterial to the defense in this case. The government's proposed order does not address disclosure of tapes, transcripts or other documents contained in the court files and therefore its offer to comply with some of the requested material is

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insufficient.3 A plea agreement does not recite the witnesses' own statements but rather the government's version of the facts. A plea proceeding does and a defendant's statements are under oath. These statements may be admissible at trial whether or not the witness testifies for the government. FRE 804(b)(1) and (3).4 The defense submits that three business days is too short for the defense to effectively digest and utilize the "Jencks" material. This usually means that the government will disclose on a Friday for a Tuesday jury trial date. This creates a problem for copying, investigation, and trial preparation over a single weekend. The defense would request at least seven (7) business days before trial for disclosure of the requested materials. For the above reasons, Defendant Anderson respectfully requests the court:

Tassinari was on bench warrant status for just short of two years. The day of his initial appearance in the above cited case, he immediately "confessed" and told the federal government about his alleged drug deals with Michael Anderson while Anderson was a border patrol agent. 3 The government already promised that it would provide some of the material at least three business days before trial so its recitation of timing of disclosure pursuant to the Jencks Act is moot. The issue now is when the files will be unsealed and transcripts may be prepared in adequate time before trial and disclosed on a date chosen by the court. 4 The Sixth Amendment Right to Confrontation belongs to the Defendant, not the government.
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1) Order that all sealed matters in the above cases be unsealed and disclosed to defense counsel on a date prior to trial. 2) Authorize payment of all transcripts of any relevant proceedings to be paid to each court reporter at the prevailing CJA rates with disclosure to defense counsel on a date prior to trial. 3) Order disclosure of presentence reports to defense counsel on a date prior to trial. Excludable delay under 18 U.S.C. §3161(h) (1)(F) and 8(A) may occur as a result of this motion or an order based thereon. RESPECTFULLY SUBMITTED on February 16, 2006.

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/s Patricia A. Gitre Patricia A. Gitre Attorney for Defendant

ORIGINAL filed electronically and copies of the foregoing Delivered via inter-court mail on February 16, 2006 Clerk of the Court Judge David G. Campbell Judge of the U.S. District Court John Boyle Mary Beth Pfister Attorneys for the government David Lockhart Attorney for Michael Anderson /s Patricia A. Gitre

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