Free Order - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 United States of America, 9 Plaintiff, 10 vs. 11 Robert J. Johnston, et al., 12 Defendants. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ) ) ) ) ) ) ) ) ) ) No. CR-03-1167-PHX-DGC ORDER IN THE UNITED S TATES DIS TRICT COURT FOR THE DIS TRICT OF ARIZONA

An eleventh case management conference was held on October 21, 2005, to discuss case management and other issues. All parties were represented by couns el, either by their own attorney or by an at t orney covering the hearing for them. Presence of non-attending Defendants was waived. On the basis of this conference, IT IS ORDERED: 1. at 3:00 p.m. 2. Criminal D ivision Chief Patrick Schneider of the United States Attorney's A twelfth case management conference will be held on Decembe r 21, 2005

Office appeared at the eleventh case management conference and confirmed that the Government will have fully complied with its Rule 16 disclosure obligations by November 4, 2005. 3. The Government has filed a Redacted A mended Ex Parte M emorandum in

Support of its Certification of Compliance with Rule 16 ("Government M emorandum"). D oc. #850. The Court noted that this document is missing page 2 and directed the

Government promptly to file a complete version and to fax page 2 to Defendants by the

Case 2:03-cr-01167-DGC

Document 868

Filed 10/26/2005

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close of bus ines s on O ctober 21, 2005, or first thing on October 24, 2005. With respect to issues addressed in this M emorandum, the Court entered the following rulings: a. Defendants may file a single response to this M emorandum on or

before November 4, 2005. b. With respect to Category 1(a) of t he Government M emorandum, the

Court ruled that the Government may withhold only information (1) within the narrow definition of a Jencks Act "statement" as set forth in the Court's orders of M ay 23 and October 18, 2005 (Docs. ##702, 844); (2) covered by the Court's protective order entered October 18, 2005 (Doc. #844); or (3) for which the Government seeks a protective order on or before November 4, 2005. Documents not covered by these three cat egories must be

disclosed to Defendants on or before November 4, 2005. c. The Government confirmed that all documents in Cat egory 1(b) of the

Government M emorandum have been or will be produced to Defendants on or before November 4, 2005. d. With respect to documents covered by Category 1(c) of the

Government M emorandum, the Court ruled that the Government may withhold only information (1) within the narrow definition of a Jencks Act "statement" as set forth in the Court's orders of M ay 23 and October 18, 2005 (Docs. ##702, 844); (2) covered by the Court's protective order entered October 18, 2005 (Doc. #844); or (3) for which the Government seeks a protective order on or before November 4, 2005. Document s not

covered by these three categories must be dis closed to Defendants on or before November 4, 2005. e. With res p ect to documents addressed in Category 1(d) of the

Government M emorandum, the Government stated t hat it has disclosed or will disclose all such information by November 4, 2005. f. With res p ect to Category 2 of the Government M emorandum, the

Court ruled that the Government may withhold only information (1) within the narrow -2Case 2:03-cr-01167-DGC Document 868 Filed 10/26/2005 Page 2 of 7

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definition of a Jencks Act "statement" as set forth in the Court's orders of M ay 23 and October 18, 2005 (Docs. ##702, 844); (2) covered by the Court's protective order entered October 18, 2005 (Doc. #844); or (3) for which the Government s eeks a p rotective order on or before N ovember 4, 2005. Documents not covered by these three categories must be

disclosed to Defendants on or before November 4, 2005. g. With resp ect t o Category 3 of the Government M emorandum, the

Court ruled that the Government may withhold only information (1) within the narrow definition of a Jencks Act "statement" as set forth in the Court's orders of M ay 23 and October 18, 2005 (Docs. ##702, 844); (2) covered by the Court's protective order entered October 18, 2005 (Doc. #844); or (3) for which t he G overnment seeks a protective order on or before N ovember 4, 2005. Documents not covered by these three categories must be

disclosed to Defendants on or before November 4, 2005. 4. Prior to the case management conference, the parties filed an eleventh joint Doc. #854. The Court addressed a number of

case management report ("Joint Report").

discovery issues set forth in this report and ruled as follows: a. With respect to paragraph 2(a) of the Joint Report, the Court ordered

counsel for Defendant s and counsel for the Government to meet and confer before October 28, 2005 about deficiencies in the videotapes produced to Defendants. The

Government shall use every reasonable effort to obtain better quality copies of these videotapes and produce them to Defendants on or before November 4, 2005. b. With res pect to paragraph 2(b) of the Joint Report, the Government

shall produce matrix items 427-437 on or before November 4, 2005. c. With res p ect t o paragraph 2(c) of the Joint Report, counsel will confer

and agree on a resolution of these discovery issues. d. With respect to paragraph 2(d) of the Joint Report, the Court ruled that

the Government may withhold only information (1) within the narrow definit ion of a J encks A ct " s tatement" as set forth in the Court's orders of M ay 23 and October 18, 2005 -3Case 2:03-cr-01167-DGC Document 868 Filed 10/26/2005 Page 3 of 7

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(Docs. ##702, 844); (2) covered by the Court's protective order entered October 18, 2005 (Doc. #844); or (3) for which the Government seeks a p rot ect ive order on or before November 4, 2005. Documents not covered by these three categories mus t be disclosed

to Defendants on or before November 4, 2005. If the Government seeks a protective order to redact the name of M ichael Kramer, it shall specifically address why redaction is required given the widespread use of that name in this litigation. e. With respect to paragraph 2(e) of the Joint Report, the Government will

produce matrix it ems 122-124, 185, 186, and 214-218 on or before November 4, 2005; the parties s hall confer and seek to resolve disagreements with respect to matrix items 442, 458, 464, 465, and 468; with respect to matrix items 270-365 and 389-423, the Government will produce transcripts to Defendants as soon as the transcripts are finalized; on or before November 4, 2005, the G overnment shall make arrangements for Defendants to inspect and analyze the flashlight at issue in matrix item 446. f. With respect t o paragraph 2(f) of the Joint Report, the Government has

disclosed the materials at issue in matrix items 444 and 447. g. With respect to paragraph 2(g) of the Joint Report, the Government

has disclosed t he w ire intercepts at issue in matrix item 448. The Government will determine whether minimization logs exist with res p ect t o these wiretaps and, if they do, shall produce such logs on or before November 4, 2005. h. With respect to paragraph 2(h) of the Joint Report , the Government

shall produce the search w arrants at issue in matrix item 460 on or before November 4, 2005. i. and reach a resolution. j. With respect to paragrap h 2(j) of the Joint Report, the Court ruled that With respect to paragraph 2(i) of the Joint Rep ort , counsel shall confer

the Government may withhold only information (1) wit hin t he narrow definition of a Jencks Act "statement" as set forth in the Court's orders of M ay 23 and October 18, 2005 (Docs. ##702, 844); (2) covered by the Court's protective order entered October 18, 2005 -4Case 2:03-cr-01167-DGC Document 868 Filed 10/26/2005 Page 4 of 7

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(Doc. #844); or (3) for w hich t he G overnment seeks a protective order on or before November 4, 2005. Documents not covered by t hes e t hree categories must be disclosed

to Defendants on or before November 4, 2005. If the Government seeks a protective order with respect to this material, it shall explain why the notice of documents to be dis clos ed six weeks and two w eeks before trial cannot identify documents as relating to the alleged assault on M r. Gutierrez. 5. The Court also discussed the issues rais ed in Defendant Smith's M otion for

Discovery. Doc. #836. With respect to these items, the Court ordered as follows: a. The Government shall obtain and produce to Defendants the 51 This product ion s hall occur on or

videotapes currently located at the Nevada vendor. before November 4, 2005. b.

With respect to the 237 audiotapes and 11 CDs relat ing t o w iretaps,

counsel for Defendants shall obtain these materials from the Phoenix vendor where they presently are located. c. With respect to the 38 videos, production of better qualit y videos

shall be discussed among counsel as set forth in paragraph 4(a) above. 6. On or before November 4, 2005, the Government shall produce a revised

not ice regarding documents the Government proposes to withhold until six weeks and t w o weeks before trial. On or before N ovember 18, 2005, Defendants shall file a response

concerning the proposed six week and two week pret rial disclosures by the Government. 7. The Government has submitted certain documents to the Court in camera.

T he Court explained that it does not understand why these documents have been submitted. If the G overnment wishes the Court to review documents submitted in camera, it s hall exp lain to the Court precisely what kind of a review is anticipated. If the review concerns documents withheld under the Jencks Act, t he G overnment shall identify the trial wit ness to which the documents relate and the anticipated scope of that witness's trial

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testimony. Unt il s uch a s pecific request is made by the Government, the Court does not intend to review the documents submitted in camera. 8. follows: a. Defendant shall file s ubs t ant ive mot ions on or before In light of ongoing disclosures, the Court modified the pretrial schedule as

December 14, 2005. This adjusted date is est ablis hed in response to Defendants' request for an additional 30 days to file motions. Defendants are on not ice t hat the Court does not intend t o extend this deadline. following instructions. (i) (ii) All substantive motions shall be filed by this deadline. M otions t o s ever and other motions concerning the nature and With respect to defense motions, the Court provided the

extent of the trial shall be filed by this deadline. (iii) Defendants s hall not file duplicative motions. They shall

coordinate their efforts so that a single motion is filed w it h respect to common legal or factual issues. (iv) T he Court reminded counsel of the page limits for motions and

memoranda set forth in LRCrim 12.1 (incorporating LRCiv 7.2). b. The Government shall file responses to Defendants' motions on or

before January 13, 2006. c. The Defendants shall file replies in sup p ort of t heir motions on or

before January 27, 2006. d. a.m. e. The parties shall submit a joint proposed jury questionnaire to the A hearing on the motions will be held on Fe bru ary 9, 2006 at 9:00

Court by March 3, 2006. f. March 17, 2006. -6Case 2:03-cr-01167-DGC Document 868 Filed 10/26/2005 Page 6 of 7 The parties shall submit proposed stipulations of fact by

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g.

A final pretrial conference and logistical trial meeting will be held on The purpose of this conference and meeting will be to

March 24, 2006 at 9:00 a.m.

discuss pretrial and trial issues to be ident ified in a later order regarding the final pretrial conference, the layout of the courtroom for trial, logistical issues aris ing from a multi-party trial, and related matters. h. Trial shall begin on April 25, 2006 at 9:00 a.m. and will proceed for

the following four months. Counsel should plan their 2006 calendars accordingly. 9. On or before December 14, 2005, counsel for the Government shall file an

updated version of their February 18, 2005 memorandum (Doc. #610) addressing trial management issues. On or before January 13, 2006, Defendants shall file an updated

version of their M arch 18, 2005 memorandum (Doc. #641) addressing trial management issues. These trial management is sues will be addressed at the hearing to be held on

February 9, 2006. 10. The time between now and the trial date shall be excluded for p urposes of

speedy trial computations. The Court finds that the ends of justice s erved by setting this trial date outweigh t he bes t int erests of the public and Defendants in an earlier trial. 18 U.S.C. § 3161(h)(8)(A). This finding is based on the Court's conclusion that this is a complex case due to the number of Defendants, the nature of the prosecution, t he volume of informat ion being disclosed by the Government, and delays occasioned by a variety of complicating factors. 18 U.S.C. § 3161(h)(8)(B)(iv). DATED this 25th day of October, 2005.

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