Free Motion for Release of Brady Materials - District Court of Arizona - Arizona

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MARK PAIGE 45 West Jefferson Luhrs Tower - Suite #806 Phoenix, AZ 85003-2317 (602) 254-5457 State Bar #020902 Attorney for Defendant

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA _______________________________________ ) UNITED STATES, ) No.: CR-03-1167-PHX-DGC ) Plaintiff, ) DEFENDANT'S REPLY RE: ) TIMING OF BRADY DISCLOSURE v. ) ) Donald Smith, et al., ) ) Defendant. ) _______________________________________) The defendant, Donald Smith, in Reply to the government's Response regarding the timing of disclosure of Brady materials, files the attached Memorandum. Respectfully submitted this 1st day of September, 2005.

S/ Mark A. Paige MARK PAIGE Attorney for Defendant Copy of the foregoing was electronically delivered this 1st day of September , 2005 to: Keith Vercauteren Assistant U.S. Attorney Two Renaissance Square 40 N. Central Avenue Suite 1200 Phoenix, AZ 85004-4408 All Defense Counsel S/ Mark A. Paige -1-

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Mark A. Paige

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MEMORANDUM First, though this is a matter raised for the first time in a Reply, the defendant begs the court's

3 indulgence as to the following argument. The Brady issue, in particular, the timing of such disclosures 4 as is being addressed in this series of filings, may need to be tabled pending any necessary clarifications 5 as a result of the discovery issues addressed at length before the court on Thursday, August 25, 2005. 6 At that time the government advised the court that it was disclosing to the defense the materials from 7 the "Pancrazi" and "Surdukan" matters. The government, in the face of substantial evidence to the 8 contrary, took the position that these materials were not material and would, in no way, be used in its 9 presentation to the jury. Therefore, it seems likely that the government has not taken these additional 10 matters into account when assessing its obligations under Brady and its progeny. Further, upon the 11 convening of an evidentiary hearing regarding the subject of discovery and the wiretap issues, it seems 12 likely that additional Rule 16 materials will of necessity by disclosed. Upon the determination of these 13 issues, it seems the government will be required to reassess the volume of Brady materials to be 14 disclosed. 15 As set forth in the initial filing by the defendant, the Brady analysis by the court involves a 16 balancing of factors in order to determine the necessary timing of these disclosures to effectuate the due 17 process rights of the defendants. An obvious factor in this determination is the volume of the disclosures. 18 As stated above, it is inconceivable to expect that the government considered its Brady obligations 19 relative to these two "investigations" they never intended to disclose to the defendants. Thus, it seems 20 an appropriate course of conduct on this issue to hold an evidentiary hearing to determine the scope of 21 the investigation into the HAMC and its alleged criminal activities. Next, the court should determine 22 23 24 25 26 27 28
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the relevancy or materiality of these other "investigations".1 Finally, the court should require the

By reference to these other matters (including Pancrazi and Surdukan) counsel is in no way

conceding or suggesting that they are separate and distinct investigations. In fact, counsel maintains at all times that the investigations are one and the same - part of an "initiative" to eviscerate the HAMC -3-

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government to reassess its estimates as to the Brady materials and its intended time for disclosure. Now, in direct reply to the government's recent filing on this matter, the defendants suggest that the government's memorandum is a combination of red herrings and the references to Brady and Jencks materials as though they are interchangeable terms. First, the government cites to United States v. Bonilla, 615 F.2d 1262 (9th Cir. 1980) for the proposition that they government is not required to produce its witnesses in advance of trial (Response, pg. 4, ln 12ff). This constitutes red herring number one. Mr. Bonilla requested the identity of the informant and that he be produced prior to trial for an interview by the defense. The court stated: " Although Bonilla was entitled to learn the informant's identity, because the informant was a percipient witness to the criminal transaction underlying his conviction, (citations omitted), he was not entitled to have the informant produced in advance of trial." Bonilla, 615 F.2d at 1264. The defendants heretofore have made no request for the percipient witness to be produced for interviews prior to trial. In the same paragraph as the "Bonilla" argument, the government then postulates that to reveal the identity of "such persons" prior to trial would "vitiate the protections afforded to Government witnesses by the Jencks Act and Rule 16." 2 The Jencks Act provides "protections" only to the witnesses statements. It offers no other "protections" to the government's witnesses. Rule 16 of the Federal Rules of Criminal Procedure, other than through protective order, offers no protections to the government's witnesses. In support of this notion, the government cites to United States v. Thompson, 493 F.2d 305, 309 (9th Cir. 1974) for the proposition that it need not reveal the identity of its witnesses. This is red herring number 2. In Thompson, the trial court denied the defendant's motion for a "witness list" in

and the, so-called, outlaw motorcycle gangs.
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The government claims it will reveal their identities either 6 or 2 weeks prior to trial. Thus, it

seems that the government is treating the identities of these percipient witness (UCs and their paid employees - CIs 376, 604 and 790) as Brady/Giglio material. Yet, they next reference the protections of Jencks. Thus, the speculation in the defendants' opening brief that the government does not have a good handle on the boundaries of Brady, Giglio, Roviaro and Jencks. -4-

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advance of trial. Id. at 309.3 The Ninth Circuit affirmed the trial court The defendants in the case at bar have made no request for a witness list. The government then reasserts is argument that disclosure of Brady material six or two weeks prior to trial satisfies its Brady obligations. However, the government makes no reference to the facts and the balancing test in Brady timing decisions: The dangers of early disclosure against the need that Brady purports to serve of avoiding wrongful convictions, i.e Due Process. In support of its position the government cites three cases: United States v. Rinn, 586 F.2d 113 (9th Cir. 1978), United States v. Higgs, 713 F.2d 39 (3rd Cir. 1983) and United States v. Allain, 671 F.2d 246 (7th Cir. 1982). The government cites these cases as though the conclusions in them are dispositive for all cases and all situations. However, given the discretion of the court to determine in each specific factual pattern before the court the appropriate timing of Brady disclosures to effectuate that pesky requirement of Due Process and a fair trial, it seems that some analysis is necessary. In the present matter, the number of government witnesses is likely to be substantial. For example, should the Laughlin Incident remain for trial in this matter, the State of Nevada has provided a non-government witness list of more than 100 witnesses. The State trial is only for offenses arising out of that one incident - the Laughlin Incident. The case at bar spans several states and, based upon information discussed at the status conference on August 25, 2005, that number may be growing. A blind application of an appellate affirmation in one case of the discretion exercised by the lower court would reduce the law in this area to "one-size-fits-all." Such an approach would dismiss the discretion of this trial court to consider the demands of due process and their implication on the requirements of Brady. The government, at page 5, ln. 22ff, asserts that the items requested by the defense (such as impeachment, statements, or identity information of the confidential sources) is "not discoverable prior to trial." This assertion flies in the face of the case law of this circuit and every other circuit and the

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The co-defendant objected to the government's seclusion of the witnesses during pretrial

proceedings. Presumably referring to the government practice of whisking witnesses into another room to prevent contact with the defense. -5-

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Supreme Court. The trial court has discretion to determine the timing of Brady disclosures. The trial court must exercise that discretion in light of all of the facts of the particular case and with the responsibility to protect the defendants right to a fair trial. This discretion may be exercised to require disclosure prior to trial. See, Defendant's Motion Re: Appropriate Time for Disclosure of Brady Evidence. The disclosure of the identity of the government's undercover agents and confidential sources or informants has been briefed multiple times. The government in its present Reply has cited the Bonilla decision which states matter-of-factly that the defense is entitled to disclosure of the identity of informants who are percipient witnesses. The prior filings of the defense on this issue ("Roviaro" issue) are incorporated herein by reference as though fully set forth. CONCLUSION The time frame proposed by the government is insufficient to protect the right of the defendants to a fair trial and due process. The material should be ordered by the court to be disclosed forthwith. In addition, the defense urges the court to adopt the procedure set forth above with respect to clarifying the Brady materials in light of the most recent developments relating to discovery. Date: September 1, 2005 S/ Mark A. Paige Mark A. Paige Attorney for Defendant Smith

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