Free Motion for Miscellaneous Relief - District Court of Arizona - Arizona

Patricia A. Gitre (#011864) 331 North 1st Avenue Suite 150 2 Phoenix, AZ 85003 Fax: 602-532-7950 3 Phone: 602-452-2918 [email protected]
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Keith Vercauteran Assistant United States Attorney 6 Two Renaissance Square 40 N. Central Avenue,Suite 1200 7 Phoenix, AZ 85004-4408 602-514-7500 8 [email protected]
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UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA _______________________________________ ) UNITED STATES, ) No.: CR-03-1167-PHX-DGC ) Plaintiff, ) ELEVENTH JOINT CASE ) MANAGEMENT REPORT v. ) ) Robert Johnston, et al., ) ) Defendant. ) ______________________________________) The parties submit their Eleventh Case Management Report to the Court for consideration of the issues to be discussed at the case management conference to be held on October 21, 2005.

1.

Status of Nevada Federal and State Prosecutions At this time the Federal case is tentatively set for January, 2006. However, the

government intends to supersede the current indictment (adding additional counts and defendants) if the defendants do not take a global plea by the end of this week. The State case is on appeal.

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2.

Status of Discovery A revised matrix will be filed simultaneously with this filing for the court's review at the

October 21, 2005 hearing. The government intends to comply with this Court's order of October 12, 2005. There are still outstanding discovery issues relating to the following: A. The Laughlin video tapes. See Defendant Smith's Motion for Discovery filed on October 14, 2005 and generally Matrix items ##457,463,466,467 and 472. The government believes the only issue left is related to the 51 Laughlin videotapes that have been made available to the defense through All-Around Video. B. Laughlin Shooting Incident, ATF 784015-03-0054. See Matrix items 427-437. These matter appears to be unresolved between the parties. The government intends to produce these items by November 4, 2005. C. Mislabeled recordings or defective recordings: The parties are continuing to resolve any problems with defective or mislabeled recordings. The defense will provide a list of all recordings that are defective or mislabeled and the government agrees to review those tapes to see if the originals are defective and if not, replace these recordings for the defense. See Matrix Items 201, 219-220,1 253, 254,256, 377,381-385. ES -90 was left off the original matrix. It was produced but it is defective. D. Redacted reports already produced by the government. The defense seeks unredacted reports already produced by the government. See Matrix items

##49,53,54,55,57,58,65,69,71,86,93,95,96,120,and 458. The issue is when the unredacted reports will be provided to defense counsel. E. Items unresolved by Court order or agreement of counsel: The following items do not appear to have been ruled upon by the court. The government agrees to produce the following by November 4, 2005: ##122-124, 185,186,214-218.
Item #19 is mislabeled as E41. It is E38. The defense assumes that the government will produce E-41. These files need to be opened with the Hawk program which the government provided.
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The parties have not resolved the following items: 442,446, 458, 464,465,468. 270-365 are requests for transcripts which the government has agreed to produce if the underlying ROI and recording is ordered by the court to be produced. If the government has already transcribed these tapes, the defense would request immediate disclosure to provide adequate time for comparison or additional transcription. If not prepared, the defense requests that as each transcript is prepared, that the government immediately discloses the same to the defense. 389-423 are requested for transcripts for any recordings made in HAMC Phoenix 785040-02-0049. The government agrees to produce the final transcripts. The defense requests the government disclose each transcript at the time is finalized to provide the defense adequate time to review and request additional transcription, if necessary. F. Pen Register Items #444 and #447 The government disclosed items #444 and #447 to the defense. G. Wire Intercepts #448 The government has disclosed all five wire Intercepts to the defense. H. Search Warrants from Operation Dequiallo (#460). These will be provided by the government on November 4, 2005. I. Items to be resolved by counsel. Augustiniak's counsel and the government agree to review documentation as to Matrix items #10, 41,451,and 452. There are outstanding issues regarding the DNA testing and reports related to the Garcia murder. Counsel have agreed to confer and attempt to resolve any issues in the next couple of weeks. J. Alleged Assault of Daniel Gutierrez, Matrix Item #459. The government indicated to the court that it would disclosed the discovery regarding this count by August 12, 2005. The government contends it disclosed all documents and any remaining documents will be disclosed with the six week material. The defense contends that government has disclosed few documents regarding this
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assault and significantly has never disclosed the Tucson Police Report regarding the assault or ROIs regarding the federal investigation of the assault. The government disclosed a few documents regarding the assault deep within the pen register discovery beginning at page 1436. Mr. Gutierrez' redacted medical records are located at "PENREGISTER 001436 - PENREGISTER001458." These records indicate that forty-one year old Mr. Gutierrez reported to St. Joseph's Hospital on February 3, 2003 indicating that he had been assaulted 48 hours before. Mr. Gutierrez had cuts and a fractured arm. These medical records indicate "TPD notified 1300- arrived at 1315 #0302030392." Counsel assumes this to mean that Tucson Police responded to the hospital and took a report. The report cannot be located in the government's discovery. Also standing alone among the pen register discovery, for no apparent reason, at "PENREGISTER001475" is a one-half page report indicating that on November 24, 2003 S/A Rutland, S/A M1 an S/A Hoover interviewed Mc Hugh at the Pima County Jail. McHugh admitted that he had assaulted Daniel Gutierrez in February of 2003 because Mr. Gutierrez "was making sexual advances towards his god-daughter, who is thirteen (13) years old." Mr. McHugh added that his god-daughter had made a digital recording of Mr. Gutierrez and played it for Mr. McHugh. Mr. McHugh thought police took the recording when they executed a search warrant. Mr. McHugh denied that the assault was done at the direction of the Tucson Chapter of the Hells Angels. The government has not disclosed the digital recording; the search warrant and search warrant return when the digital recording was seized by law enforcement; any reports indicating how these agents came to interview Mr. McHugh and how they came to suspect that the HAMC was involved. The indictment alleges that Henry Watkins and Craig Kelly assaulted Mr. Gutierrez as a violent crime in aid of racketeering. However, the government has failed to disclose any discovery regarding that allegation aside from the medical records and Mr. McHugh's statement implicating himself and exonerating the Hells Angels of any involvement.
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 Carmen Lynne Fischer 19 Patricia Ann Gitre 20 Alan Richard Hock 21 Thomas M Hoidal 22 Barbara Lynn Hull 23 David M Ochoa 24 Jose S Padilla 25 Mark A Paige 26 James Sun Park 27 28 Page 5 of 6 [email protected], [email protected], [email protected], [email protected] [email protected] [email protected], [email protected] [email protected] [email protected] [email protected], [email protected] [email protected] [email protected], [email protected] [email protected], [email protected]

3.

Motion Deadlines Defendant Augustiniak's counsel will not be able to meet the current motion deadline

of November 23, 2005 in light of the voluminous discovery she expects to receive on or by November 4, 2005. She requests a one month extension to file substantive motions.

Respectfully submitted on October 21, 2005 /s/Patricia A. Gitre Attorney for Kevin Augustiniak /s/ Keith Vercauteran Attorney for the United States Government
I certify that on October 20, 2005 I electronically submitted the attached document to the clerks' office using the CM/ECF system for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants with a courtesy copy to the court: Joseph E Abodeely [email protected], [email protected] [email protected]

David Zeltner Chesnoff Timothy T Duax

[email protected],[email protected], [email protected]

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C Kenneth Ray , II Brian Fredrick Russo Michael Shay Ryan Philip A Seplow

[email protected] [email protected], [email protected] [email protected], [email protected]

[email protected], [email protected]

Robert Storrs [email protected], [email protected] Loyd C Tate [email protected] [email protected],

Keith Eric Vercauteren, [email protected], [email protected] /s/ Patricia Gitre

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