Free Motion for Miscellaneous Relief - 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 RESPONSE TO v. ) GOVERNMENT APPLICATION ) FOR RULE 16 PROTECTIVE Donald Smith, et al., ) ORDER ) Defendant. ) _______________________________________) The defendant, Donald Smith, offers the attached Memorandum in response to the request of the government for a protective order relating to several items of discovery in this matter. The defendant urges the court to deny the requested protective order and direct that the materials be provided to the defense forthwith.

Respectfully submitted this 2nd day of September, 2005.

S/ Mark A. Paige MARK PAIGE Attorney for Defendant Copy of the foregoing was electronically delivered this 2nd day of September 2005 to: Timothy Duax Assistant U.S. Attorney Two Renaissance Square 40 N. Central Avenue -1-

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Suite 1200 Phoenix, AZ 85004-4408 All Defense Counsel s/ Mark A. Paige Mark A. Paige

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. General Legal Outline

MEMORANDUM

Upon a sufficient showing, the court may, at any time, order that the discovery or inspection be denied, restricted, deferred or make such other order as is appropriate. Upon motion by a party, the court may permit the party to make such a showing, in whole or in part, in the form of a written statement to be inspected by the judge alone. If the court enters an order granting relief following such an ex parte showing, the entire text of the party's statement shall be sealed and preserved in the records of the court to be available to the appellate court in the event of an appeal. United States v. Pelton, 578 F.2d 701 (8 th Cir. 1978). Pelton is distinguishable from the present case. Though at issue in Pelton were recordings of conversations involving one of the defendants himself, the government's concern for the protective order was to protect the confidentiality of the confidential informants, which, apparently, was not known to the defendant. Further, the court of appeals, in affirming the trial court's decision, found that the tapes contained no exculpatory evidence, the government made no direct or derivative use of the tapes at trial and the defendant made no showing that the order "prejudiced her substantial rights." Id. at 706-707. In the present case, the defendants know the identities of the UCs and their paid employees (CIs 376, 604 and 790). Many of the items for which protection is sought include surveillance videos and other recordings, yet the agents have not protected their images. In fact, they often posed for photos with the club members, associated with the club members for nearly a year, participated in a national television broadcast which included some of the footage the government seems to be attempting to protect and have moved about the country speaking and receiving awards. In fact, defense counsel has viewed a videotape of "Jaybird" (a/k/a Jay Dobyns) and the rest of his club receiving their Top Cop award for this very investigation. Further, some or most of the materials do contain exculpatory evidence. The surveillance videos will show material exculpatory to some or all of the defendants. The government has claimed (in its 117 page search warrant affidavit) that the HAMC is a wholly criminal -3-

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organization. Thus, all of the video tapes are relevant and material and, at least to some degree, exculpatory. Last, the prejudice to the defense is substantial. The volume of materials to be disclosed later will be great. The surveillance videos alone will consume hours and hours of time, not only to view, but to make well reasoned strategic and legal decisions regarding the use at trial. This coming at the same time as many reports, impeachment materials, cooperation agreements, scientific or other evidence. The Fifth and Sixth Amendments are to be enforced to protect the fairness of the proceedings and the defendant's right to a fair trial. The history of this case, particularly the most recent events, demonstrates unequivocally that the United States Attorney's Office is a poor guardian of these rights. In the event that the materials sought to be sealed constitute Brady or Jencks material, the requirements of Brady and Jencks must prevail over any government desire to keep its secrets. United States v. Brumel-Alvarez, 991 F.2d 1452 (9 th Cir. 1992)(The government, two months before trial, moved for a protective order for a memorandum (Levine Memorandum) which was damaging to the government. The trial granted the relief. The Ninth Circuit reversed. The appellate court indicated that if the material is Brady or Jencks material it must be provided.) Further, to this point, the government has never made more than unsupported assertions that there is any danger to the safety of any witnesses or for the harassment of the witnesses. Most of the defendants have been released from custody demonstrating that they are neither a danger to the community nor a risk of non-appearance. Defense counsel cannot give a meaningful response to such unsupported, conclusory accusations alleging some form of danger to the witnesses. Counsel would welcome the opportunity to respond to specific allegations of dangerousness. The government has likely claimed that any disclosure will endanger the informant(s) but that is not enough. Where a defendant makes a showing that identification and communications of the government's confidential informant may be relevant and helpful to a possible defense at trial, a district court abuses its discretion if it denies disclosure on the sole basis of "potential -4-

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danger" to the informer." United States v Ordonez, 737 F2d 793, 808 (9th 1984). The government claims the non-disclosed information is "sensitive CI material" that "could put our CIs at most risk." STATUS CONFERENCE TR. 5/5/05. P.10, ll.23-24, p.11, 312. Evidence of the informants' illegal conduct or perhaps HAMC members' non-criminal conduct that may undermine the "integrity" of the ATF investigation cannot be deemed "sensitive." The government continues to assert "danger to and the safety of" its informants for its non-disclosure without any basis in fact. It has revealed the identity of the three main informants through videotapes, audiotapes, and testimony. It has never confirmed whether its informants are in a witness protection program or simply living freely. The government has not offered any credible or reliable circumstance or facts to support its argument that Michael Kramer (CI 376) or any known informant is in danger and it has not revealed whether they are already in a witness protection program. If so, such protection from the government eliminates any danger or safety issues. See United States v Danielson, 325 F.3d 1054, 1074 (9 th Cir. 2003) (" And [the government's] argument that pretrial disclosure of the tapes would have placed Sava [government informant] in danger lacks merit as well because Sava entered a witness protection program before Danielson's trial began"). Where a defendant makes a showing that identification and communications of the government's confidential informant may be relevant and helpful to a possible defense at trial, a district court abuses its discretion if it denies disclosure on the sole basis of "potential danger" to the informer. United States v Ordonez, 737 F2d 793, 808 (9 th 1984). The court should not assume that these witnesses are in danger just because the government says they are. This is a pure trial tactic, not a safety issue. II. Overview of Items for Which Protection is Sought Few, if any, of the items requested by the defendants for which the government has sought this protective order could possibly create any danger to the safety of the UCs or their paid employees. Michael Kramer, Rudy Kramer and James Blankinship (Pops) are known to be CIs 376, 790 and 604 respectively. Materials regarding the terms of their agreements with the government, their court files and their violation histories will not create any danger. The same -5-

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is true as to rosters, non-redacted reports already disclosed and notes of the CIs. A protective order under Rule 16 of the Federal Rules of Criminal Procedure is not an "I-want-it-so-I-get-it" standard. A Rule 16 protective order requires a showing of particular need to avoid disclosure. The items requested by the government to be subject to a protective order simply create no real or potential danger supporting the issuance of a protective order. III. Examples of Specific Items

Item 441: The defense is requesting the arrest warrant and supporting documents regarding Rudy Kramer (CI-790) dated on or about October 2002 involving the Arizona Department of Public Safety (among, perhaps, other agencies). The government responds with its standard blanket recitation: "Brady, Giglio, Roviaro, Jencks." It would seem that the only basis for the seeking of a protective order is the concern that "Brady, Giglio, Roviaro, Jencks" would be insufficient. Issuance of a protective order requires that the government demonstrate, more than mere conclusory accusations, that the protective order is necessary to avoid danger to the witnesses resulting from the disclosure. There is no basis to suspect danger in revealing the identity of CI-790 (Rudy Kramer). His identity is well known. His identity was revealed more than a year ago by the government itself upon the disclosure of a disk including his conversations from CCA with various individuals. His identity has been solidified in these very proceedings by the appearance of his counsel arguing on his behalf. The documents sought by the defense are not "secret documents". As a matter of course, they are public records. There is no interest to be protected. Item 461: The defendant requests the hundreds of surveillance videos of the UCs (and their paid employees: CIs 376, 604 and 790) made during any and all periods of investigation relating to

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the HAMC, including investigation prior to April 2002. 1 The government, in Matrix 2, claims these items to be "Brady, Giglio, Roviaro, Jencks". 2 The claims of the government in this regard have been addressed numerous times by the defendants (incorporated herein as though fully set forth) and must fail. So must the claim for the need for protection of these individuals. Counsel for the defendants must respond to the court upon a foundation of speculation as the bases the government claims necessitate a protective order. Defense counsel believes the government's refusal is likely based upon the fact that the "image" of the agents (and their paid employees) are recorded on the videotapes. 3 Such an argument does not warrant suppression. The defendants know what the UCs (and paid employees) look like. One or more of the defendants saw them on a regular basis for a period of a year or more. Second, the government has failed to keep the "image" of some or all of these individuals secret from the general public from the time of the Indictment to present. These individuals have continued to move about in public, including further investigations of the HAMC and others. The UCs, in particular, have been making public appearances in various locations attending and speaking at seminars and receiving awards for the HAMC investigation. At least on of the paid employees (CI-376, Michael Kramer) has testified in open court as a witness for the United States Government in a federal prosecution of a member of the HAMC. The government may have made the claim of danger to the witnesses if their identity is revealed. As set forth above, the identity, e.g. the physical image, was revealed the moment these agents (and their paid employees) made contact with the club in the course of this investigation.

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Recent defense discovery from investigation (later acknowledged by the government) reveals an investigation beginning long before that originally thought by the defendants herein. If Brady, Giglio, Roviaro, Jencks then why seek a protective order? This is based upon such an assertion by the government during a meeting prior to the Ninth JCMR and conference. At that time the government claimed the images of the agents/CIs made the tapes Jencks material. -7-

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Production of the video surveillance will in no way further any perceived dangers. 4 Second, as to the claim of danger, the government must do more than make a blanket statement. See, United States v Ordonez, 737 F2d 793, 808 (9th 1984). A claim of danger based upon the conduct alleged in Counts 8 and 9 of the Second Superceding Indictment is not sufficient to support a protective order. First, the alleged perpetrator is in custody. Second, substantial facts exist to rebut the government claims as to this incident. An evidentiary hearing is needed to present those facts to the court. Third, the alleged victims of Counts 8 and 9 have a multitude of protections available to them as federal agents. See United States v Danielson, 325 F.3d 1054, 1074 (9 th Cir. 2003). The surveillance videos go to the heart of the accusations made against the defendants. The defendants are charged in Counts 1 and 2 with RICO and RICO Conspiracy. At the center of such accusations are claims that the Club is corrupt throughout. The government made such a claim as a matter of record when making application for search warrants for the homes of many of the Club members. SW Affidavit, pg. 107. One member of law enforcement involved in the investigation(s), Glendale Officer Dick Sarasaras has stated that surveillance was conducted at all times whenever an undercover was meeting any member of the Club. This same officer alleged that there are hundreds of tapes of this surveillance. Officer Sarasaras stated that Agent Slatella was in charge of this operation. These surveillance materials (videotapes, audiotapes, logs, etc...) are not subject to protection. Failure to disclose these items violates due process. Item 462: The defense is seeking various materials related to the surveillance of the club members activities. The government again seeks to withhold because, according to Matrix 2, the "remaining photos depict UC officers and CIs." As set forth above, and in the previous filings

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As the court may recall, Michael Kramer (CI-376) was a member of the HAMC and Rudy Kramer (CI-790) was an associate of various club members. The UCs routinely hung around with the club members and posed in many photographs with them. -8-

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by the defendants (incorporated herein though not fully set forth), this theory provides no basis for non-disclosure. See, supra. Furthermore, the notes and surveillance logs, do not fit within the government bases to withhold (as set forth in Matrix 2). They documents should be disclosed. The logs, for example,
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contain observations of events involving the HAMC and the interaction with the UCs (and their

paid employees). These logs should contain the date, time and place of particular events. For example, the drug sale in the parking lot of the Denny's off I-17 and Bell Road, involving Dennis Denbesten and Donald Smith, (predicate acts 7A and 7B) should be recorded in its entirety in surveillance logs, notes and videotape. Clearly, the same is material and relevant and subject to Rule 16 disclosure immediately, i.e. more than a year ago. 6 Items 470-471: The defense is seeking color photos and the video of the ruse killing of the Mongol by the UCs (and their paid employees). These materials constitute, undoubtedly, Rule 16 material. These materials constitute a significant aspect to the government's case against the Club. These materials were, in whole or in part, disclosed to the America's Most Wanted employees and aired on national television in September 2004. The government agents, those UCs participated in the disclosure and the episode of AMW According to Matrix 2, the government is withholding these materials because they "depict officers and CIs." This issue has been addressed repeatedly in prior filings (incorporated herein as though fully set forth) and above in this memorandum. There is no legal bases to withhold these materials. Due Process demands that they be released. CONCLUSION The materials for which protection is sought by the government are not subject to
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Clearly falling within Rule 16 as tangible objects, documents, etc.... If this evidence is merely exculpatory as to Mr. Smith, thus not subject to disclosure at this time (absent a Court order to the contrary), then the government has a good faith obligation to dismiss these acts as to Mr. Smith. -9-

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protection. The government cannot present any basis to believe that, as a result of making these disclosures, any danger will be created for the UCs or their paid employees. These materials are necessary to the defense and the effective preparation for and representation of the various defendants at trial. These materials are necessary to protecting the right of the defendants to a fair trial.

Date: September 1, 2005

S/ Mark A. Paige Mark A. Paige Attorney for Defendant Smith

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