Free Pretrial Memorandum - District Court of Arizona - Arizona

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DAVID M. OCHOA Attorney at Law P.O. Box 22126 Phoenix, AZ 85028 Tel: (602) 971-4048 Fax: (602) 956-2007 Bar #: 002163 Attorney for Defendant Murphy

UNITED STATES DISTRICT COURT
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DISTRICT OF ARIZONA
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United States of America

) ) Plaintiff, ) ) vs. ) Andrew Murphy, et al, ) ) Defendant. ) _________________________________)

NO. CR-031167-PHX-DGC PRETRIAL MEMORANDUM

The defendant by and through his undersigned attorney respectfully submits the following memorandum regarding two issues that were raised at the last status conference on August 25, 2005. At that time, when the Court asked the prosecution if the prosecution did not have a duty to disclose discovery that was available to another arm of the government, even if not personally known to the prosecution. The Court also asked the prosecution if it was not the prosecution's responsibility to know what other agencies might know. The prosecution told the Court if it did not know of the discovery or if it was not related to the instant prosecution, the prosecutor had no duty to disclose. The answer to these two issues have been answered both by the Ninth Circuit and the United States Supreme Court. In United States. v. Wood, 57 F.3d 733 (9th Cir. 1995) the Court was called upon to answer the question of the responsibility of the Food and Drug Administration (the FDA) to disclose evidence in its possession in a criminal trial. The Ninth Circuit held that for "Brady purposes, the FDA and the prosecutor were one. We need
Case 2:03-cr-01167-DGC Document 794 Filed 08/27/2005 Page 1 of 3

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not decide how far the unity of the government extends under the Brady rule. We hold only that under Brady the agency charged with administration of the statute, which has consulted with the prosecutor in the steps leading to prosecution, is to be considered as part of the prosecution in determining what information must be made available to the defendant charged with violation of the statute. The government cannot with its right hand say it has nothing while its left hand holds what is of value. (Omitting citations) The government in the form of the prosecutor cannot tell the court that there is nothing more to disclose while the agency interested in the prosecution holds in its files information favorable to the defendant.". Wood at 737. As was made clear by counsel for the defendants, the same agency and the same agents were all involved in the investigation of the Hells Angels Motorcycle Club (HAMC). As to the second issue that was raised by the Court of the government's responsibility to find out what it knows, to which the prosecution told the Court if it did not believe it was related to the instant case, it had no duty to disclose. The Supreme Court in Dennis v United States, 384 U.S. 855, 875 (1966) stated that the "determination of what may be useful to the defense can properly and effectively be made only by an advocate. The trial judge's function in this respect is limited to deciding whether a case has been made for production, and to supervise the process." (Emphasis added). If there is room for doubt as to whether or not evidence may be exculpatory it is not for the prosecutor to decide what is useful to the defense, but that determination rests in the hands of the defense. The defendant brings these cases to the Court's attention in assisting the Court in determining what rulings the Court should make. It is expected that excludable delay under Title l8, U.S.C. Section 3161(h)(1)(F) may occur as a result of this motion or from an order based thereon. Respectfully submitted: August 27, 2005

s/________________________________ DAVID M. OCHOA
-2Filed 08/27/2005

Case 2:03-cr-01167-DGC

Document 794

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CERTIFICATE OF SERVICE
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I hereby certify that on this date, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of Notice of Electronic Filing to the following CM/ECT registrants: AUSA Timothy T. Duax, AUSA Keith E. Vercauteren, Brian Russo, Mark Paige, Thomas Hoidal, David Chesnoff, Kenneth Ray, Richard Hook, Loyd Tate, Pat Gitre, Joseph Abodeely, Carmen L. Fischer, Philip Seplow, Michael Ryan and Barbara Hull.

Case 2:03-cr-01167-DGC

Document 794

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