Free Order - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 Robert J. Johnston, et al., 13 Defendants. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 vs. United States of America, Plaintiff, ) ) ) ) ) ) ) ) ) ) ) ) ) CR-03-1167-PHX-DGC ORDER IN THE UNITED S TATES DIS TRICT COURT FOR THE DIS TRICT OF ARIZONA

In this order, the Court w ill take the extraordinary step of requiring the Chief of the Criminal Division of the United States Attorney's Office, or a comparable officer designated by the United States Attorney, to appear in Court and p ers onally certify that the Government has complied with its disclosure obligations under Rule 16 of the Federal Rules of Criminal Procedure. For twenty months and t hrough numerous orders the Court has attempted to obtain full compliance wit h Rule 16. The Government has made

voluminous disclosures to defense counsel, but those disclosures have been sporadic and delayed, often untimely under the Court's schedule, and appear as yet to be incomplete. Statements made to t he Court by counsel for the Government have been inaccurate, inconsistent, and sometimes legally incorrect. Almost two years have passed s ince the

initial indictment in this case. The time has come for dis covery t o be completed and trial to commence. The Court recognizes that this is an extraordinarily complex case that includes far-

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ranging inves t igat ions by multiple law enforcement agencies in several states.

The Court

also understands that tens of thousands of documents and hundreds of videotapes have been disclosed to defense counsel. But complexity and size do not excuse full compliance with Rule 16; if anything, they call for more vigilant compliance. evidentiary disclosures. Defendants are seeking

hearings and dismissal of the indict ment on the basis of incomplete The Court is confident that appropriate attention to this issue in the United

States Attorney's Office will result in a prompt completion of all required disclosures. The Court will order such attention before considering dismissal. This order will recount the history of discovery in t his case. The purpose of this recounting will be to show why the Court believes that extraordinary action is necessary. The Court has not concluded, and does not intend to suggest, that attorneys for the Government have acted in bad faith. The Court has concluded, however, that a higher

level of attention is necessary if this case is to be brought to trial. I. Case History. A. The First Case Management Conference.

At the first cas e management conference on January 29, 2004, counsel for the Government stated that he had "disclosed everything" and had "given all of the

discovery" to defense counsel with the excep t ion of some Brady material. Tr. 11:5-9, 15:1214. Defense counsel asserted that the Government had not disclosed any materials relating to the April 2002 shoot ing at t he Harrah's Casino in Laughlin, Nevada that is a predicate act underlying the RICO charges in this case. Tr. 29:19-22. Joseph Abodeely, counsel for Defendant Craig Kelly , expressed his concerns about the Government's compliance with Rule 16 in these words: I was going to be silent about this, but I don't want to sandbag the Court on this, Judge. The . . . [AU SA ] s ays he has disclosed all the discovery which is in his file. We happen to know from dis cus s ing w ith each other that some of the affidavits for the search warrants are missing. . . . A nd t here are several indictments and several different cases that s eem to be related. All I want to do is put the Court on notice and put the prosecutor on notice so that we don't have this problem later on of cases rolling into other cases and discovery not being given to us as we find out more and more the cases are related. So the prosecutor's obligation, as he knows, . . . is to have a
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procedure in effect to deal with his agents to get us all the discovery w e are entitled to. Exculpatory or any material relevant evidence, not just information that is in his file. I could have been silent on this, Judge, but we'd have come back in here later and said it's all related. T r. 44:7-25. The Court instructed M r. Abodeely and Government counsel to address these concerns. Tr. 45:1-3. In a February 2, 2004 case management order, the Court designated the case complex, set a second case management conference for February 26, 2004, and set the trial for O ctober 12, 2004. Doc. #200 ¶¶ 1-3. The Court ordered the parties to promptly confer and agree upon an expeditious means for imaging the document s and copying the CDs disclos ed by the Government so that defense counsel would have an opportunity to conduct an initial review of the evidence before the second case management conference. Id. ¶ 3(A). The Court furt her ordered the parties to confer about any other discovery Id. ¶ 3(B). The Court

issues so that they could be resolved before the conference.

requested a case management report regarding this case and the status of discovery in the related prosecution in the District of Nevada ("Nevada Case"). Id. ¶ 5. B. The S econd Case Management Conference.

The parties filed a second case management report on February 24, 2004. D oc. #215. The Government stated in the report that discovery material in the Nevada Case was not organized enough for the parties to review, but that it would be in manageable format by mid-M arch 2004. Id. ¶¶ 1, 3. Government couns el stated at the second case management conference that it appeared some of the Nevada discovery was relevant to four Defendants charged in both the Nevada Case and this case. Tr. 13:14-17. D efense counsel stated that

all of the Nevada discovery was relevant to the nine D efendants charged in the RICO counts in this case. Tr. 15:4-25/16:1-4. When the Court asked whether all of the Nevada discovery was relevant and needed to be disclosed, Government couns el stated that he did not know because he had not reviewed the discovery: It's hard for me to say, I'm not sure exactly what t hey have. I know obviously they have all the discovery about t he Laughlin shooting and that is relevant to this case. They have things ­ t hey have more than that, and
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I think a lot of that will not be relevant. But, again, I haven't see it all, so it's difficult for me to say[.] Tr. 16:10-15. Government counsel explained that he intended to go to N evada in midHe noted that the Nevada prosecutors had a "closed-file

M arch to review the discovery.

policy" regarding discovery, but that in this District an "open-file policy is expected and that's been my practice." Tr. 16:22, 20:8-9. The Court issued a second case management order on M arch 4, 2004, setting a third case management conference for April 8, 2004 and ordering the Government to review the Nevada discovery and determine the amount and met hod of discovery to be provided to Defendants. Doc. #228 ¶ 1. The Court ordered the parties to confer about any other

disclosure or discovery issues so that they could be resolved at or before t he third case management conference. Id. ¶ 2. C. The Third Case Management Conference.

The parties filed their report on April 7, 2004. Doc. #249. The Government stated in the report that the AUSAs in Nevada had reviewed the Nevada discovery and determined that 36 videotapes were material to this cas e. Id. ¶ 1. The Government

cautioned, however, that "there may be as many as 560 tapes in total." Id. Even though he previously had stat ed he would review the Nevada discovery in mid-M arch and the Court had ordered him t o do so before the third case management conference, Government counsel stated that he and the case agent s w ere "going to go to Nevada in the next few weeks to completely review the discovery to determine if t here . . . are other relevant discovery items." Id. Despite the incomplete disclos ures from the Nevada Case,

Government counsel stated that the Government had "made dis clos ure of all relevant dis covery with the exception of Rule 6(e) [grand jury] materials and information relating to informants and witnesses [who] have not been disclosed." Id. ¶ 3. Counsel explained that t he withheld material was not voluminous and would be produced in a "sufficiently t imely manner to allow defense counsel time to prepare for trial." Id. At the third case management conference, Government counsel acknow ledged that
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hundreds of videotapes from the Nevada Case and some videotapes from this case still needed to be disclosed. Tr. 13:7-12, 18:21-23. Counsel reiterated his intention to go to

Nevada and personally review the discovery: "I've been told it is in a much better state now and I plan on going there within the next couple weeks and reviewing it for mys elf so I can be s at is fied that relevant materials to this prosecution here have been turned over or can be turned over." Tr. 19:10-14. Counsel suggested that t he Court wait until the

dis covery motions filed in the Nevada Case were resolved before setting a discovery deadline in this case. Tr. 23:22-25/24:1-4, 26:14-15. Defense counsel noted that the United States Government as a whole was prosecuting Defendants, not the United States Attorneys' Offices in eit her Arizona or N evada. Tr. 24:5-8. Defense counsel urged the Court to set a firm discovery deadline.

Tr. 25:24-25/26:1-3. The Court 's third case management order, issued April 13, 2004, set a discovery deadline. Doc. #253 ¶ 2. The Court ordered the Government to produce all relevant

discovery in this case, including relevant Nevada discovery, by July 2, 2004. Id. ¶¶ 1-2. The Court stated that it " expects the Government to take whatever steps are necessary to ensure that full and complete disclosure is made in this case by July 2, 2004." Id. ¶ 2. D. The Fourth Case Management Conference.

The Government informed the Court in the fourth case management rep ort t hat the District of Nevada had in its poss es s ion between 300,000 and 400,000 documents and that it had released 10,000 documents and int ended to release 75,000 more. Doc. #281 ¶ A. The Government stated that it was unable "to comply with the July 2 deadline wit h respect to those documents in the possession and control of the District of Nevada." Id. ¶ B. At the fourth case management conference, the Court asked G overnment counsel w hen and how he proposed to select out the relevant documents from the N evada discovery. Tr. 13:17-18. Counsel responded: I think that will be fairly easy because I think Nevada is going to do that initially, and then I'm going to do another p erus al with my case agents to make a determination if there's any thing else or if those [documents] are in
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fact relevant to our case. [T]hey won't be available probably for anot her six weeks, so at that point we can begin that process. Tr. 13:19-25/14:1. Counsel acknowledged that he could have reviewed the documents prior

3 to the fourth case management conference but did not do so. Tr. 14:2-7. 4 acknowledged Defendant s ' concern that the discovery in this case was going to continue 5 to grow because the discovery was "trickling in" from Nevada. Tr. 20:10-13. 6 T he Court stated that it did not want "the pace of this case to be dictated by t he 7 trickling in of discovery in Nevada" and that the Court would "set deadlines in this case, 8 allow for motions to be filed, and the burden w ill be on the Government to get the 9 documents and get them produced." 10 Government counsel was responsible for ensuring that the Government complied w it h its 11 Rule 16 disclosure obligations: 12 13 14 15 Tr. 25:20-25. 16 Defense counsel opposed an extension of the July 2 discovery deadline, stating that 17 the Government could have complied with the deadline had it chosen to do so. Tr. 26-30. 18 Government counsel argued that an extension was justified and assert ed, inaccurately, that 19 if he "went by the letter of Rule 16" he could withhold the discovery "for a long time." 20 Tr. 30:22-25/31:1. 21 The Court issued a fourth case management order on June 17, 2004. Doc. #292. To 22 accommodate the challenges p resented by the Nevada production, the Court extended the 23 discovery deadline to September 3, 2004, stating that it did not intend to grant further 24 extensions. Id. ¶ 2. T he Court set a fifth case management conference for August 12, 2004, 25 set a briefing schedule with respect to discovery motions , and reset the trial for January 26 18, 2005. Id. ¶¶ 1, 3, 5. 27 28
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Couns el further

Tr. 20:14-19.

The Court further stated t hat

[T]he point will come where you, on behalf of the U.S. Attorney in Arizona, will have to say this is our Rule 16 disclosure. A nd it w ill have to include evidence from this case and evidence from Nevada. But it's going to be your burden to say [the Government has] complied with Rule 16[.]

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E.

The Fifth Case Management Conference.

The Government alerted the Court in the fifth case management report to several problems encountered in the Nevada discovery. Doc. #318 ¶ A. The Government s t ated that while it was not in p os s es s ion of any CDs containing scanned images of the documents discussed at the fourth cas e management conference, it would disclose such CDs to Defendants when they became available. Id. T he G overnment further stated that it had "complied with the discovery deadlines . . . to the best of its abilities despite not receiving the documents from the Nevada case[.]" Id. ¶ D(4). The Court understood from this statement, as from similar statements in the past, that discovery located in Arizona had been produced to Defendants. At the fifth case management conference, the Court asked Government counsel why it was taking so long t o image the Nevada discovery. Tr. 31:13-16. Government counsel stated that everything he knew was in the sparse cas e management report and that this information was based on conversations with the AUSA in Nevada. Tr. 31:17-20. Counsel did not know when the CD s w ould be available and, remarkably, suggested that defense counsel located in Nevada might have the answer. Tr. 32:4-7. Counsel made the following inaccurate statement regarding the Government's disclosure obligations under Rule 16: As far as [the Court] holding the discovery deadline t o where it is, I believe that if I receive the documentation from N evada before that time that I will have fulfilled my obligat ions . . . . And I think that Rule 16 is going to be on my side. As a practical matter, we can w alk in here a couple days before trial and I can give them everything at that point. T hat 's not what I've tried to do and that 's not w hat I want to do. But the law will support me on that under Rule 16. Tr. 40:16-25/41:1-2. The Court iss ued a fifth case management order on August 17, 2004. Doc. #322. The

The Court set a sixth case management conference for September 10, 2004. Id. ¶ 1.

Court ordered the parties to address in the sixth cas e management report the Government's compliance with the September 3 discovery deadline. Id. ¶ 4(A)(1). F. The S ixth Case Management Conference.

T he p arties stated in their sixth case management report that Defendants had
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received no additional disclos ures from the Government despite the arrival of the September 3 discovery deadline. Doc. #339 ¶ 1. G overnment counsel stated that he had

been informed by the AUSA in Nevada that the Nevada discovery would be " substantially complete" by September 14, 2005. Id. ¶ 2. At the sixth case management conference, Government counsel acknowledged that he had not met the September 3 discovery deadline w it h respect to the Nevada discovery. Tr. 39:1-2. Later in the conference, however, counsel stated that the Government had

technically complied with Rule 16 because all of the Nevada discovery had been made available to the two attorneys repres ent ing D efendants charged in both the Nevada Case and this case. Tr. 41:5-11. Defense counsel argued that the Government was not relieved of it s Rule 16 obligations in this case merely because the Nevada aut horities had made discovery available to two defense attorneys in Nevada. Tr. 42:13-15. Defense counsel further

argued that the Government had a continuing obligation to dis clos e all Rule 16 materials even though it had failed to meet the September 3 discovery deadline becaus e t he materials may include exculpatory evidence. Tr. 42:16-24/45:3-15. Counsel suggested that the

dismissal of charges or the exclus ion of inculpatory evidence may be appropriate sanctions for the Government's failure to comply with the discovery deadline. Tr. 44:1-11. The Court issued a sixth case management order on Sep t ember 27, 2004. Doc. #360. The Court declined to extend the September 3 discovery deadline or the briefing schedule with respect to discovery motions . Id. ¶ 4. The Government filed a superseding indictment on September 30, 2004. Doc. #384. G. The S eventh Case Management Conference.

At the seventh case management conference, Government couns el s tated that he was withholding Brady material, Jencks Act confidential informants. Tr. 8-9, 13. s tatements, and information regarding

Counsel further stated that t he materials would be

disclosed at least seven days before trial and that such a late disclosure would not result in a t rial delay. Tr. 13-14. Counsel argued that a protective order under Rule 16(d)(1) w as
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appropriat e with respect to some of the withheld materials for the protection of witnesses. Tr. 22-23. The Court is s ued an order on October 27, 2004 that required the Government to provide evidence to support its request for a protective order by November 19, 2004. Doc. #460. The Court issued a s eventh case management order on November 8, 2004 that included the same requirement. Doc. #474 ¶ 3. Because s p ecific disputes had arisen

concerning the scope of disclosures by the Government, leading to the filing of various discovery motions, the Court ordered the parties to file a matrix setting forth all outstanding discovery arguments by N ovember 24, 2004. Id. ¶ 4. The Court stated that

its rulings on the issues presented in t he matrix would resolve all of the pending discovery motions. Id. H. The Court's Discovery Order. Defendants identified specific items the Rather than addressing these items

The parties filed the matrix as required. Government purportedly had not disclos ed.

individually as contemplated by the Court's order, however, the Government merely st at ed that it had complied with Rule 16. The Court issued an order on December 23, 2004 that resolved some of the issues rais ed in t he matrix and ordered the parties to be prepared to address the remaining discovery disputes fully at the eighth case management conference. Doc. #509. The Court ruled that the Government could withhold until seven days before t rial information related to confidential informants Id. at 3-5. including Brady material and

non-redacted reports of investigations.

The Court declined to rule on the

Government's request for a protective order under Rule 16(d)(1) because the Government had not provided evidence t o s up p ort its request by the November 19, 2004 deadline and did not raise the issue in the matrix. Id. I. The Eighth Case Management Conference.

The Government again took the position in the eighth case management rep ort that it had complied with its Rule 16 obligations. Doc. #532 ¶ 1. Defendants disagreed, noting that the Government had not disclosed 400 videos and two CDs containing thousands of
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document s relat ing to the Harrah's Casino incident. Id. The parties stated that the primary issues to be resolved at the eighth case management conference were the outstanding discovery disputes and Defendants' motion to sever. Id. ¶ 3. Defense counsel began the eighth case management conference by announcing that the Government had issued a second s up erseding indictment that added numerous counts and restructured the case considerably. Tr. 7:9-12; see Doc. #541. The Court expressed

considerable frustration that Government counsel did not mention the new indictment in the p arties' report or the Government's briefs regarding discovery and severance issues, particularly given the fact that the new indictment rendered moot all of the briefing on t hes e is sues and the Court's extensive preparation for the eighth case management conference. Tr. 9-13. Government counsel took the position that the new indictment did not affect any of the discovery issues. Tr. 8:18-19. As defense counsel pointed out, however, there were several new racketeering acts alleged in the indictment that had previously been brought as individual counts or in separate indictments against specific Defendants. Tr. 17:19-25.

Because of changes made in the s up erceding indictment, and the fact that the Court had not even seen the new indictment, the Court was unable to resolve the remaining discovery disputes, rule on motions to sever, and otherwise prepare the case for trial. Government counsel again stated that the Government had satisfied its Rule 16 obligations, withholding only information regarding informants and undercover agents. Tr. 24:7-10. As counsel later acknowledged, however, documents regarding the N evada

search w arrants, unedited videotapes of the Harrah's Casino incident, and surveillance videos of Defendants' activities had not been disclosed. Tr. 30:3-13, 31:4-7. Government counsel also took the position that he could properly withhold certain discovery material until seven days before t rial regardless of the volume of the material. Tr. 38:14-16. Counsel acknowledged, however, that the disclosure of the material seven

days before trial could cause a "practical problem" for the Court and Defendants because the material was "fairly voluminous ." Tr. 39:2-21. This was contrary to the Government's
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statements in t he third case management report that the material was not voluminous and at the seventh case management conference that disclosure of the material seven days before trial would not result in a trial delay. See Doc. #249 ¶ 3, Tr. 13-14. The Court issued an eight h cas e management order on January 27, 2005. Doc. #537. In light of t he new structure of the case set forth in the superceding indictment, the Court permitted Defendants to file a new round of dis covery motions by February 18, 2005. Id. ¶ 5. The Court ordered the Government to file a response identifying "precisely w hat

discovery issues remain in dispute." Id. The Court stated the following with res p ect t o the undisclosed documents, videotapes , and s urveillance videos discussed at the eighth case management conference: The Government has been promising to produce information for months. The Court is frustrated that these materials have not yet been produced. The Government is ordered to produce them to Defendants in this case on or before F ebruary 18, 2005. Strict compliance with this Order will be expected. Id. ¶ 6. With respect to the materials being withheld on the purport ed ground of witness

15 protection, the Court s t ated that "[d]isclosure should be made far enough in advance of 16 trial t o permit full preparation by Defendants and to avoid last minute trial delays." Id. ¶ 17 7. 18 J. 19 The Government filed a notice regarding discovery on M arch 7, 2005. 20 Despite the Court 's earlier deadlines and its repeated assertions that all Rule 16 discovery 21 had been produced, the Government stated in the notice that it had recently disclosed to 22 D efendants 350 unedited videotapes, 50 CDs, and search warrant materials relating to the 23 Harrah's Casino incident. Id. at 1. The Government also listed the material it int ended to 24 withhold unt il s hortly before trial. Id. at 2. The Government proposed giving "the majority 25 of Jencks material six weeks before trial, with some additional Jencks material two weeks 26 before trial." Id. 27 The Government filed a second notice regarding discovery on M arch 23, 2005. 28
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The Government's Notices Regarding Discovery. Doc. #627.

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Doc. #647.

The G overnment stated that it had recently disclosed hard copies of reports recordings and the search w arrants executed in

regarding confidential informant

connection with the Harrah's Casino incident. Id. at 1.

T he Government reiterated that it

intended to give the majority of Jencks material six weeks before trial, wit h some additional Jencks material two weeks before trial. Id. at 2. K. Defendants' Motion to Compel and the Government's Response.

Defendants filed a motion to compel discovery on April 8, 2005. Doc. #654. The Government stated in its response that it would disclose all the requested material and that t he only issue was the timing of disclosures. Doc. #677 at 2. Contrary to its earlier promise of six-week and two-week pretrial disclos ures, the Government stated that it would disclose information regarding its confidential informants at least seven day s before trial, when it intended to disclose the withheld "Jencks material." Id. at 2-3. The Government

threatened, however, that if Defendants continued to assert t hat t he Government had waived its right to withhold Jencks material, then the Government would " hold back all discovery until required to provide it pursuant to case law and the Jencks Act." Id. at 3. L. The Ninth Case Management Conference. A new AUSA

A nint h cas e management conference was held on M ay 5, 2005.

appeared for the Government. The Court expressed surprise that a substant ial amount of mat erial had been disclosed since the eighth case management conference in January 2005, and asked the new AUSA the following: We had a disclosure deadline of September 3rd in this case that [the Court ] declined to extend last July. [The former AUSA] s aid t hat he had complied with Rule 16 and disclosed everything. . . . Why are w e getting all of this material being produced now given the fact w e had a discovery deadline back in September? Tr. 14:4-12. Counsel responded by s aying that he was not aware of the Court's discovery deadline. Tr. 14:13-14, 15:10-12. The Court finds it remarkable t hat the outgoing AUSA would not inform his successor of a firm and much-litigated deadline in this case. It is true that the second superceding indictment had altered the case and that the Court had ordered the Government to make additional disclosures by February 18 (a date the
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Government missed), but the recently disclosed information clearly was related to the allegations of the original indictment and therefore should have been disclosed months earlier, and the Court would have thought it important for new Government counsel to understand the history of discovery in this case, including past deadlines. The Court was unable to rule on Defendants' motion t o compel because, like the prior briefing on discovery is s ues, the parties described the disputed materials in different and confusing terms. The Court could not tell what was in dis p ut e. T r. 20:1-8. M oreover, the G overnment had agreed to produce still more materials and both sides said there were ongoing discussions regarding outstanding discovery issues. Tr. 20:9-21. The Court is s ued a ninth case management order on M ay 10, 2005. Doc. #693. The Court set a briefing schedule and a hearing with respect to substantive motions and reset the t rial for F ebruary 14, 2006. Id. ¶¶ 1-3. The Court ordered the parties to file a new discovery matrix and separate supporting memoranda by June 3, 2005. Id. ¶ 5. M. The Court's S econd Discovery Order.

On M ay 23, 2005, the Court issued an order concerning the scop e and timing of disclosures under Rule 16, Brady, and the Jencks Act ("Second Discovery Order"). Doc. #702. In an effort to provide guidance t o t he p art ies in resolving their remaining

discovery disputes, the Court set forth a rather detailed discussion of t he Government's discovery obligations. The Court instructed the parties to utilize the order in resolving any remaining discovery issues. Id. at 1. At the parties' request, the Court extended the

deadline for filing dis covery memoranda to June 10, 2005, and later to July 1, 2005. Id. at 17; D oc. #721. T he Court ordered the Government to file, by June 10, 2005, a separate

not ice regarding the Brady material and Jencks Act statements it intended to disclose six weeks and two weeks before trial. Doc. #702 at 18. N. The Tenth Case Management Conference.

During the tenth case management conference held on July 8, 2005, the Court addressed the discovery issues raised by t he parties. Because the matrix and

accompanying memoranda failed to address issues specifically raised by the Court in the
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Second Discovery O rder, how ever, the Court was unable to resolve most of the discovery disputes. The Court was also unable t o resolve the timing of the Government's Brady and Jencks Act disclosures because the Government did not file the notice t he Court had required in the Second D iscovery Order. Government counsel provided copies of the Tr. 3:19-25/4:1-3, 19:10-

notice at the conference, acknowledging that it was untimely. 25/20:1-25.

The Court is s ued a t enth case management order on July 14, 2005. Doc. #751. The Court s t at ed t hat the schedule set forth in the ninth case management order would remain in effect. Id. ¶ 3. O. The Court's Third Discovery Order.

The Court issued an order on July 13, 2005 that resolved numerous discovery disputes identified in the parties' matrix. Doc. #750. The Court s et deadlines for the parties to brief the mat eriality of the items requested by Defendants under Rule 16(a)(1)(E)(i), the appropriateness of a protective order under Rule 16(d)(1), and the timing of the disclosure of Brady material and Jencks Act statements. Id. At the parties' request, the Court The issues are now

extended the deadlines in subsequent orders. See Docs. ##770, 796. fully briefed. See Docs. ##779, 781-82, 793, 803-05. P. Recent Discovery Developments.

On July 8, 2005, Defendants filed a request for an evidentiary hearing regarding wiretap evidence not disclosed by the Government. Doc. #744. Defendants sought to

obtain discovery related to five wiretaps referenced in the curriculum vit ae of Agent Joseph Slatalla. Id. Ex. A. The Government filed a response on August 9, 2005, stating that it will disclose the wiretap materials. Doc. #773. The next day, Defendants moved for an emergency extension of the September 2, 2005 deadline for filing substantive motions on the ground that the Government had not previously disclosed the wiretap evidence. Doc. #774. The Court granted t he motion and scheduled an August 25, 2005 conference

to discuss the new evidence. Docs. ##787, 789. The Court was troubled to learn at the conference that D efendants had received
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thousands of pages of documents not previously disclosed, and that more were coming. Defense counsel asserted that the wiretap document s were closely related to specific events at issue in this case. The Court was even more troubled t o hear counsel for the

Government assert that the Government had no previous obligation under Rule 16 to review the wiretap investigations to det ermine whether they contained discoverable information. Counsel for the Government asserted that the wiretaps were not actually used in the invest igat ion of this case and that the Government has no duty to have an " encyclopedic knowledge" of other investigations. Counsel took this position despite the

fact that law enforcement agents involved in this case and t he w iret ap cases had communicated during the course of this investigation, and even though one of the AUSAs prosecuting this case and sitting at counsel table during the hearing is als o prosecuting the case that involves three of the five wiretaps.1 Q. S ummary.

The Court is troubled by recent revelations concerning non-disclosure of wiretap evidence and the Government's narrow interpretation of its obligations under Rule 16, but those are not t he only reasons for this order. As the foregoing discussion demonstrates,

t he Government has been slow to comply with its Rule 16 obligations and the Court 's various deadlines despite repeated assurances, starting at the first case management conference, that all required disclosures have been made. conference appears to have been prescient . M r. Abodeely's warning at that

Discovery has rolled out slowly, expanding The

under pressure from Defendants and as related investigations have been revealed.

Court will have confidence that all necessary disclosures have been made only if high-level attention is brought to bear in t he O ffice of the United States Attorney and the Court In it s response to a recent motion for release filed by Defendant Robert M cKay, the Government again stated that it has no duty to review the wiretap evidence under Rule 16 because this case and the cases involving t he wiretaps did not result from "one big investigation." Doc. #798 at 8. T he Government further stated that it has no duty to disclose the wiretap evidence under Rule 16 because it did not intend to use the evidence at trial and the evidence did not contain any exculpatory or material information. Id.
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receives an unequivocal confirmation that disclosures are complete. such a high-level confirmation before considering more severe remedies. II. The New S chedule. A.

The Court will order

The Court will require the Criminal D ep artment Chief, or a comparable officer

designated by the United States Attorney , t o appear at the eleventh case management conference and certify that the Government has eit her complied fully with its disclosure obligations under Rule 16 or will comply fully by Octobe r 21, 2005. So that the office will have time to investigate this issue and ensure that all required disclosures have been made, the conference will be scheduled for October 14, 2005, at 4:00 p.m. B. The Government shall complete its disclosures with res p ect to the five

wiretaps by S eptember 30, 2005. C. The Court w ill issue an order resolving the outstanding discovery disputes

by S eptember 30, 2005, and the Government shall make any disclosures required in that order by October 21, 2005. D. Defendants shall file substantive motions by Nove mber 23, 2005. The

Government shall file responses by D ecember 14, 2005 and Defendants shall file replies by January 6, 2006. E. 2:00 p.m. F. The parties shall submit a joint prop os ed jury questionnaire to the Court by A hearing on substantive motions will be held on January 20, 2006, at

February 3, 2006. G. H. The parties shall submit proposed stipulations of fact by March 17, 2006. A final pretrial conference and logistical trial meeting will be held on

March 24, 2006, at 2:00 p.m. The purpose of this conference and meeting will be t o discuss pretrial and trial issues to be identified in a later order regarding the final pret rial conference, the layout of t he courtroom for trial, logistical issues arising from a multi-party trial, and related matters. I. Trial will begin on Apri l 25, 2006, at 9:00 a.m., and will proceed for the
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following four mont hs .

Counsel should plan their 2006 calendars accordingly. The Court

previously informed counsel that it fully intended to begin trial in February of 2006. The Court reluctantly concludes, however, that the recent disclosures require an additional extension. Defendants stated at the August 25, 2005 hearing that trial should be continued for at least six months. The Court does not agree. The Court has provided ample

resources for preparation of the defense, the bulk of the dis covery has been in the possession of Defendants for months, and seven months between now and the t ime of trial provides sufficient time to prepare.2 J. The time between now and the trial date shall be excluded for purposes of

speedy trial computations. The Court finds t hat the ends of justice served by setting this trial date outweigh the best interests of the public and Defendants in an earlier trial. U.S.C. § 3161(h)(8)(A ). 18

T his finding is based on the Court's conclusion that this is a

complex case due to the number of Defendant s , t he nature of the prosecution, the volume of information being disclosed by the Government, and delays occas ioned by a variety of complicating factors. 18 U.S.C. § 3161(h)(8)(B)(iv). DATED this 14th day of September, 2005.

The Court has conferred with Judge Bolton concerning the multi-defendant case to be tried in t he Special Proceedings Courtroom in early 2006. Judge Bolton believes the multi-defendant phase of this trial will be finished before April 25, 2005.
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