Free Other Notice - District Court of Arizona - Arizona

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PATRICIA A. GITRE, P.L.C (#011864) 331 N. 1st Avenue, Suite 150 Phoenix, Arizona 85003 Telephone: (602) 452-2918 Fax: (602) 532-7950 Attorney for Kevin J. Augustiniak IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA UNITED STATES OF AMERICA, Plaintiff, vs. KEVIN J. AUGUSTINIAK Defendant. The parties through Patricia A. Gitre, attorney for Kevin Augustiniak and Tim Duax, counsel for the government, provide notice to the Court as to the status of media discovery from the investigations cases listed below. On November 4, 2005 the defense met with the government to discuss discovery disputes and obtain discovery ordered by the court to be disclosed on or before November 4, 2005. The majority of the discussion centered on the Laughlin tapes. Mr. Duax reviewed and discussed Barbara Hull's letter as to the issues raised and agreed most of Hull's letter was correct. The parties engaged in a detailed discussion of additional issues raised by Chuck Whiteman, investigator, as to the Laughlin videos. Mr. Whiteman provided Mr. Duax certain disclosed Las Vegas Police Department (LVPD) reports (inventory list of tapes) that establish certain video surveillances exist to assist in locating the missing tapes or original tapes. The defense identified the following issues including but not limited to editing of tapes, manipulation, chain of custody, generation of tape from the original source, missing tapes, blank and defective recordings. The defense also discussed disclosure relating to other investigations as set forth below.

CR03-1167-PHX-DGC JOINT NOTICE TO THE COURT AS TO STATUS OF DISCOVERY AND DEFENSE RESPONSE TO GOVERNMENT'S TWO AND SIX WEEK DISCLOSURES

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On November 9, 2005, Mr. Duax went to LVPD to examine tapes and discuss all issues raised by the defense concerning the tapes. On November 16, 2005 Chuck Whiteman, Pat Gitre and Tim Duax met to discuss the status of the discovery relating to these tapes. The government agreed to provide any additional discovery regarding these tapes, inventory logs, surveillance logs, camera logs and any additional discovery related to these tapes on or before December 6, 2005. The defense does not waive any objection to the timeliness of the government's disclosure, scope of disclosure or any evidentiary foundational issues including whether the tapes are sanitized or edited, chain of custody, authenticity and any others issues related to the any of these items disclosed or not disclosed by the government. The defense further does not waive or concede any additional issues that may arise with new disclosure or discovery of non-disclosed evidence. LAUGHLIN - CASE NUMBER 785040-02-0054 38 Tapes Mr. Whiteman explained that the defense has a disk of stills taken from the tapes included in 38 tapes. He also pointed out specific tapes that appear to be edited. The defense questions the editing of tapes, the source of the tapes, the generation and the chain of custody of these tapes. Mr. Duax after reviewing the tapes at LVPD, states that he believes that any errors on the defense version (editing, defects, time missing, etc.) are unintentional copying errors. At this time, the government does not know what generation or version the defense received but will replace all tapes that appear to be edited or defective by the above stated date. The government is unable to establish or provide the defense with a "chain of custody (surveillance logs/inventory, logs for cameras)" and/or reports as to the tapes at this time but will provide these reports and a complete set of these tapes with additional footage by the above stated date.

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51 Tapes On November 4, 2005 the government produced 45 of the 51 tapes. (#349-399). The government expected delivery of all 51 tapes, however, when the tapes arrived, there were only 45 tapes. The government inquired of ALL-AROUND-VIDEO as to the missing tapes and was told that 5 of the tapes were missing and one tape was damaged. The government immediately requested the missing 5 tapes and ALLAROUND-VIDEO agreed to send the missing tapes as quickly as possible. Subsequently, the defense reviewed and found that there are 9 tapes missing (not 5 as listed), #373 is viewable (is not "no good" as listed), Tapes #381, #384, and #393 are not viewable. The following tapes are missing: 351,352,353,355,368,372,383,386,389. See Defective Discovery List attached as Exhibit 1. The defense will return the 45 tapes to the government by Tuesday November 22, 2005. The government will determine whether the original tapes are also defective and inform the defense and if not, locate and replace any defective and missing tapes by the above stated date. 348 Tapes Harrah's surveillance tapes were impounded by LVPD. The surveillance tapes were provided to ALLAROUND-VIDEO for duplication. In February, 2005 the 348 tapes were sent from ALL-AROUND-VIDEO to the government. The government, without reviewing or unpacking the tapes placed them with APEX for review and copying by the defense. When the government went to APEX to receive its copy of the 348 tapes, tapes 1-22 were missing. As of November 16, 2005 APEX has not been able to locate these videos in its facility, and has told Mr. Duax it is inquiring of defense counsel Mark Paige regarding the missing videos. In the interim, the defense agreed to provide its copy of tapes 1-22 by November 22, 2005 for the government to copy for its evidence. Defense has the following issues with the tapes disclosed:

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· · ·

Surveillance logs when compared to the Audio and Videos are not the same. Specifically the video/audio does not reflect the directions given to direct cameras and video shots. Missing portions of the tapes, such as there are 16 VCRs 2-3 persons sitting at camera controls to manipulate the views/shots (there were up to 60 recorders at any given time were in operation.)

·

. For example there a tape labeled 8 hours but contains only two hours of tape. Discussion regarding which entity had custody of the original unedited tapes - the gaming commission, the security detail for Harrah's, the cops, etc. The government in this case has not requested any material from Harrah's or its representatives including internal investigation reports, tapes, surveillance, etc.

· ·

Whether state or federal agents edited tapes. Government is attempting to resolve this issue. Mr. Whiteman said the Mongol incident of the 26th is not available and no one can locate it at this time on any tape. The government believes that the footage of the Mongol incident is contained on some of the tapes it intends to produce by December 6, 2005.

·

Need disclosure of MC-11 VHS Tapes made at Harrah's. This tape in particular is a "sound" video, should be the dispatch used by Security Surveillance team of Harrah's.

On November 16, 2005, the government agreed to provide any missing tapes, defective tapes, replace tapes that were "edited" or missing portions of a recording. It will disclose any MC-11 Tapes with audio (possibly tapes #182-84,177,167,168,169,207 and 208) by the stated deadline. The government believes that any error regarding missing portion of the tapes on the copies disclosed to the defense was a copying error, not deliberate sanitization or editing by any agency. The government will provide the best copies available from the original tapes.

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Multiplex Camera -Tapes The parties discussed the tapes that must be viewed with a multiplex camera. 17-25 Multiplex cameras done by LVPD with 32 frames per second (Tapes 403,414,416,417,418,419 may be multiplex tapes). The defense knows that the government compiled CDROMS from the Multiplex cameras tapes and footage is missing. The parties discussed that specific equipment must be used to view which was purchased by LVPD (approximately 49K). The defense states there are missing Multiplex tapes for Harrah's and Gold Nugget. The government agrees there may be missing or mislabeled tapes and will provide these tapes by the stated deadline. The government states that the defense, in order to view these multiplexes tapes, it has two choices: 1) purchase the equipment or; 2) hire private company to "demux" the tapes for viewing purposes. Cost is unknown at this time. Field Tapes The defense received some of the Field tapes by LVPD that contain duplicates, blanks tapes and one was just "snow." The government agreed to provide good copies of the 11 Field tapes by LVPD by the above stated date. OPERATION DEQUIALLO - CASE NUMBER 784015-02-0006 The government sought and is seeking a protective order as to certain electronic recordings and other documents associated with this case number. See Government's Notice of Filing Ex Parte Application to Defer Certain Discovery dated 8/12/05 (Dkt. 780) and Government's Notice of Filing Supplemental Ex Parte Application to Defer Certain Discovery filed November 4, 2005 (Dkt. 884). See Government's Protective Order List re: Matrix Items attached as Exhibit 2.

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1

On October 19, 2005, the government filed its "Two Week and Six Week Materials" list attached as Exhibit A. See Dkt. 851. This list does not contain all the items that listed in the Ex Parte Notices to Defer Discovery filed by the government. On November 4, 2005 the government provided almost all of the audio/video recordings (ES) made by Michael Kramer but not surveillance videos conducted by the agents. The government did not provide E-86 stating it was blank. The government withheld the following ES: E-2, E-10, E-25, E-28, E-32, E-34, E51, and E-65E-84.1 On November 4, 2005, the government provided almost all of the ROIS associated with this case number (1-168). The government states that there are no additional ROIS beyond 168 exist associated with this case number. The government did not provide the following ROIS stating that they did not exist: ROI 67, ROI-103, and ROI 107. RO1 19 is missing page 3. On August 12, 2005, the government sought and was granted a protective order for ROI-168 (Matrix Item #183). On November 4, 2005, the government sought a protective order for the following ES: E-10(Item #195). E-25 (Item #206), E-28 (Item #208), E-32 (Item #212), E-51 (Item #230), E-65 (Items #243) and E84 (Item #255). These items do not appear on the government's two week or six week disclosure lists so but the defense assumes that the government seeks to defer disclosure two or six weeks before trial. The defense objects to non-disclosure and/or deferral of disclosure of these items. First, many of these recordings are by Michael Kramer during his ATF tenure for which the ROI was disclosed by the government but not the companion recordings. Second, some of these events may be exculpatory to the defense to rebut the government's claim of a wholly criminal enterprise as well as Kramer's version of events that he recorded during these events as he wired at the same time that the agents were conducting the surveillance. Lastly, the defense has shown materiality (see prior motions and order) as to all disclosure

The electronic audio/video discovery is labeled E-1 through E113.
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regarding Kramer particularly since he claims that he was "forced" to carry, sell and use methamphetamine by the HAMC so that his cover was not blown. It was at some of these events that Kramer was doing methamphetamine as well as other drugs. Unless the government is able to convince this court that this material is clearly not exculpatory, Jencks material or falls outside of Rule 16, the court should order immediate disclosure of the following electronic recordings: ROI ??? 36 37 44 ES E-10 E-25 E-28 E-32 DATES BETWEEN 4/17/02 AND 4/18/02 7/24/02 TO 7/28/02 HAMC MC RUN GUNNISON CO 8/1/02 TO 8/7/02 STURGIS MC RALLY 9/26/02 TO 9/29/02 STREET VIBRATIONS ANNUAL MC RALLY RENO NEVADA BETWEEN 12/5/02 AND 12/11/02 2/22/03 SACRAMENTO 4/3/03 TO 4/6/03 ANCHORAGE FAIRBANKS NOTES SURV CONDUCTED FROM 4/3/02 TO 417/02 BUT NOT PRODUCED ROI DISCLOSED BUT NOT ES ROI DISCLOSED BUT NOT ES

??? 85 99

E-51 E-65 E-84

E64 DISCLOSED BUT E-65 NOT DISCLOSED E81 TO E83 COVERING THE SAME TIME PERIOD and were DISCLOSED BUT E-84 WAS NOT DISCLOSED

Because the bulk of the November 4, 2005 disclosure was related to this investigation, the defense has not had the opportunity to review all ROIS and corresponding electronic surveillance and or recordings for sound, accuracy or completeness. A brief review of all the ROIS indicates that additional surveillance by video or audio was conducted by the agents which have not been disclosed to the defense. The defense requests that the government disclose all surveillance conducted by these agents during the course of this investigation as reflected in the ROIS that have been disclosed. The defense has provided a list to the government as to any defective, blank, audio or video with little or no sound and mislabeled CDROMS, videos or CDS of the electronic surveillance. There are also
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CDROMS with missing sessions that must be produced. See Exhibit 2 attached hereto and incorporated herein. The government agrees to: 1) determine if the original recording is blank or defective and if not, it will provide the defense with these recordings and 2) it will provide the defense with the correct CDROMS that were mislabeled. The government agrees to provide this to the defense by December 16, 2005. PHOENIX HAMC - CASE NUMBER 785040-02-0049 It appears that the government has disclosed all reports and recordings except for Matrix Items #461, 462,470 and 471. However, until the defense is able to review all disclosed electronic surveillance and corresponding reports, it has not been able to determine if any other items that should be disclosed by the government. The court granted a protective order as to these items and ordered that full disclosure will be made by a date established by the Court. The defense objects to the Court's protective order as to these items as 1) the government has not disclosed the volume of these items; 2) these items do not appear on the government's notice of "Two and Six Week Disclosure" and therefore, the defense is not in a position to inform the court of whether or not such belated disclosure will also delay the trial. The Defense does not waive any objections, evidentiary or otherwise that it may have upon disclosure. The government also sought a protective order as to Item #459 relating to reports relating to Craig Kelly or Hank Watkins. As the defense has no notice of the basis for the protective order and has repeatedly informed the court of the potential Brady and/or Giglio material, it demands disclosure of these items immediately. For the reasons set forth in prior motions regarding discovery, the defense requests that this Court deny any protective status as to additional items identified by the government in its November 4, 2005 application and order immediate disclosure or alternatively, order the government to identify the volume or

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length of recordings of material withheld so that the defense may respond accordingly as to the timing of disclosure. RESPECTFULLY SUBMITTED on November 18, 2005. PATRICIA A. GITRE PLC /s/ Patricia A. Gitre PATRICIA A. GITRE Attorney for Defendant Kevin Augustiniak /s/ Timothy Duax TIMOTHY DUAX Assistant United States Attorney ORIGINAL filed electronically and copies of the foregoing Delivered via electronically or by email on 11/18/2005 Clerk of the Court Judge David G. Campbell Judge of the U.S. District Court Sandra Day O'Connor United States Courthouse 401 West Washington Street Phoenix, Arizona 85003 Tim Duax Keith Vercauteran All Defense Counsel /s/ Patricia A. Gitre

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