Free Motion to Dismiss Counts (Less Than All) - District Court of Arizona - Arizona

B ar bar a L . H ul l , At t or ney
8 6 Wes t U ni ver s i t y Dr i ve S ui t e 1 0 1 A Mes a, Ar i z ona 8 5 2 0 1 4 8 0 .8 3 4 .0 0 0 2

October 27, 2005

Timothy Duax, Esq. Assistant United States Attorney Two Renaissance Square 40 North Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408

HAND-DELIVERED

Re: United States v. Johnston, et al., Case No. 04-1167-PHX-DGC Dear Mr. Duax: As you know, I represent Robert McKay in the above matter. This letter is handdelivered to you today for the purpose of memorializing the specifics of the videotape disclosure the defense requires in this case. I received your voicemail message Tuesday evening canceling our meeting of yesterday at 1:30 p.m. That meeting was scheduled for the purposes of covering those videotape disclosure issues remaining. Your message stated you would not return until this evening and that you would call me upon your return. I am in hearings before Judge Bolton on the Cisneros case this week, and I had informed Judge Campbell you and I could address this issue this week. In the event that we are unable to meet tomorrow, I am hand-delivering this detailed synopsis to you today in hopes that no more time is lost in your need to provide these tapes by November 4th. I will attempt here to provide as specific information as possible on this issue. In April of 2004, Michael Kemp of your office delivered to the defense 38 VHS tapes of incidents in Laughlin. A few of those tapes are from the Golden Nugget and include an incident which occurred a short time before the Harrah's incident. Most were of the Harrah's incident. The poor quality and the obvious tampering of those tapes has been raised repeatedly in court since the middle of 2004. It was also addressed privately with Mr. Kemp before and after being raised in court. Initially, Mr. Kemp did not know if the tapes were altered. Later in 2004, Mr. Kemp acknowledged the alteration of the tapes. Since 2004, Mr. Kemp has advised that he would supply all videos, including replacements of the original tapes.

Case 2:03-cr-01167-DGC

Document 944-2

Filed 12/12/2005

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Mr. Timothy Duax, Esq. October 27, 2005 Page Two In the January 2005 case management conference, a discussion was again held as to these videotapes - the original 38 tapes and the balance. The court directed Mr. Kemp to produce the additional tapes and better quality, unedited versions of the original tapes. The Court set a deadline of February 18, 2005. On February 25, 2005, 348 tapes were provided to the defense which did not include unedited versions of the original 36-38 tapes addressed previously. The following is provided in order to memorialize what the defense review to date of those tapes provided by the Government has discerned, and what material remains outstanding. As the April 27, 2005 events occurred at Harrah's Casino, law enforcement officers were monitoring the activities from Harrah's lower level surveillance room. As police were able to gain control of the casino area, Las Vegas Metropolitan Police Department ("LVMPD") pulled about 38 videotapes from the recording machines found to include the primary coverage of the event. These tapes were impounded by LVMPD and placed in evidence and used as the core evidence from which law enforcement investigated and prepared indictments in the Nevada State and Federal cases. What tapes have been provided to the defense evidence that some have been altered, some have been replaced and/or edited with events from other dates, and many cannot be viewed without Harrah's multiplex equipment. A summary follows by listing the LVMPD evidence item numbers (a copy of the actual videotape labels is attached hereto for reference): Tape #400: about two hours have been edited from this tape that would have shown events on the casino floor immediately prior to the shooting that occurred at about 0216 hours on April 27, 2002; Tape #402: altered; about one hour edited out at the beginning of the tape; Tape #403: not viewable; multi-switch camera utilized; Tape #405: altered; entire videotape is from April 20, 2002; Tape #407: altered; approximately two hours have been deleted; those two hours include the time of the Harrah's incident hours; Tape #408: altered; of the 8-hour tape, only 10 minutes remain beginning at 0320 Tape #410: altered; two hours including time of event have been deleted;

Case 2:03-cr-01167-DGC

Document 944-2

Filed 12/12/2005

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Timothy Duax, Esq. October 27, 2005 Page Three Tape #411: altered; three hours beginning at the time of the event have been deleted; Tapes # 414, 416, 417, 418, 419: not viewable, multicam utilized; Tape #415: no copy provided; Tape #420: altered; two hours of time of event deleted; quad view; Tape #423: altered: two hours of time of event deleted; Tape #425: altered; two hours of time of event deleted; Tape # 426: altered; this tape should have the dispatch audio; audio deleted; Tape # 426: a very important tape as evidenced in still photographs provided; tape is missing; Tape # 428: altered; no images on tape. An additional 51 videotapes from Harrah's have been disclosed by the Government in the Nevada case. The Government there has indicated that more than half of those tapes will be used at trial there. None of those tapes have been provided the defense here. The LVMPD claims a Hell's Angel instigated the Harrah's melee by kicking a Mongol. Witnesses claim the Mongol instigated the incident, and we know that Harrah's Camera 21 is located directly above the location in the casino where this incident took place. It is critical to the defense of the Laughlin incident allegations that the videotape from this camera be disclosed. What is marked as Item 420 for purposes of LVMPD evidence identification is the first videotape shown to the grand jury in the Nevada federal indictment. We have twice been provided a videotape marked as Item 420 which purports to be a copy of that same videotape. This is the very first videotape shown to the grand jury in the Nevada indictment, used to depict the Harrah's incident. Both copies provided to the defense are blank.

Case 2:03-cr-01167-DGC

Document 944-2

Filed 12/12/2005

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Timothy Duax, Esq. October 27, 2005 Page Four What is marked as Item 20 for purposes of LVMPD identification purposes is the videotape from Camera 10 which covers the parking lot incident outside the Golden Nugget on Thursday, April 26, 2002. We know these are eight-hour tapes. The copy provided the defense starts at 17:56 and ends at 20:40. Approximately 5 hours have been deleted, including the incident alleged by LVMPD to be "minor" where approximately 20-30 Mongols attacked a Hell's Angel. We know from Harrah's surveillance logs t hat LVMPD obtained copies of that videotape on Friday, April 27th at approximately 9:00 a.m. We also know the original tape covers the event, because the defense was provided still photographs from that videotape covering the event. We also know from those surveillance logs that LVMPD entered the surveillance room to begin monitoring beginning in the late afternoon on Friday, April 27th. The copy of Item #400 provided to the defense begins at 18:04:49 and ends at 00:15:34. Two hours are edited out at the critical time covering that event. Stills taken by Harrah's for the LVMPD and/or ATF evidence the first still was taken at 18:04:45 (Friday April 26th) and the last still is taken at 02:03:38 (Saturday April 27th). The tape provided by the ATF as part of the disclosure starts at 18:04:49 on Friday and ends at 00:15:34 Saturday morning. One hour and nine minutes have been edited from this tape. This timeframe would include the critical time period prior to the event which erupted at about 02:16:00 Saturday morning. We require readable, unedited copies of the originals. The intended purpose of our meeting scheduled for yesterday afternoon was to answer any questions you might have as to the precise-as-possible identification of those known areas of concern. Again, in hopes of preventing any delays, this letter outlines in as precise as possible a fashion those specific tapes that have clearly been altered. We believe we have completed the review of those tapes provided by your office. Should additional issues be discovered, we will notify you immediately. Please provide this evidence on or before the November 4, 2005 deadline. Sincerely,

Barbara L. Hull BLH/sr encls. (Photocopies of videotape labels.)

Case 2:03-cr-01167-DGC

Document 944-2

Filed 12/12/2005

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