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, ) ) DEFENSE MOTION RE: THE v. ) APPROPRIATE TIME FOR ) DISCLOSURE OF BRADY Donald Smith, et al., ) EVIDENCE ) Defendant. ) (Evidentiary Hearing and Argument _______________________________________) Requested) The defendants herein file this motion in response to the Court's Order directing that such a motion be filed as to the proper timing of Brady disclosures in this case, in particular, those items addressed in the Discovery Matrix 2 filed on or about July 7, 2005. Counsel apologizes for the tardiness of this filing, which was due on August 12, 2005. This motion was inadvertently not incorporated into the "materiality" filing by the defendants on August 12, 2005. Counsel requests the Court accept this filing though filed one business day late. Memorandum of Law attached. Incorporated herein as though fully set forth is the Motion for Discovery; Defense Memorandum Re; Court Order Dated 7/11/05. (Document Number 779 and attachments). Respectfully submitted this 15th day of August, 2005. S/ Mark A. Paige MARK PAIGE Attorney for Defendant -1-

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Copy of the foregoing was mailed/delivered (electronically) this 15th day of August , 2005 to: Timothy Duax Keith Vercauteren Assistant U.S. Attorney Two Renaissance Square 40 N. Central Avenue Suite 1200 Phoenix, AZ 85004-4408 All defense counsel.

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MEMORANDUM OF LAW NATURE OF MATERIALS The most recent Order of this court, filed on or about July 11, 2005 addressed various issues arising from the ongoing discovery difficulties experienced by the defense. The parties again filed a

5 discovery Matrix (hereinafter, Matrix 2), a Memorandum of Position and Law, a Joint Case Management 6 Report (number 10) and made argument at a case management conference. With respect to a series of 7 items listed in Matrix 2 and other issues implicating the Brady/Giglio/Jencks line of cases (and even 8 Roviaro - again), the court has given the defense the opportunity to file a memorandum, limited to seven 9 pages, discussing the issue of the timing of disclosure. This opportunity has been occasioned by the 10 government's failure to timely produce a notice setting forth a list of materials it intends to withhold 11 until six weeks before trial and those items to be withheld until two weeks before trial. 12 The list that was provided on the day of the tenth case management conference contains an 13 enumeration of approximately 1850 pages of documents intended to be withheld until shortly before 14 trial. The list also, with respect to some of the vaguely described items, indicates the "theory" by which 15 the decision has been made to withhold the items as does the Matrix 2. Because a number of items are 16 referenced to Jencks (as opposed to Brady/Giglio), it seems necessary to address the government's 17 continued exaggerated interpretation of Jencks. 18 Under specific questioning by the court at the tenth case management conference, the 19 government avowed that it has reviewed and complied with the court's narrow definition of Jencks 20 material as set forth in its Order filed May 23, 2005. The defense continues to be skeptical of the 21 government's interpretive abilities. This skepticism finds a home in positions of the government as 22 exemplified below. 23 Item 11 (Matrix 2): This item is a departmental report of the Maricopa County Sheriff's Office 24 (hereinafter, MCSO). The court's Order, filed May 23, 2005 cites United States v. Griffin, 659 F.2d 932, 25 26 records the statements of the interviewee cannot be a statement for Jencks purposes. 27 28 -3936 (9th Cir. 1981). The Griffin court held that the portion of an agent's interview notes that simply

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The defense requested a "complete set" of the reports of the MCSO related to the Garcia homicide (predicate acts 1-2). The government, in it's response in Matrix 2, states that "the remaining reports" contain Jencks material. Without further identification or definition as to what remains (or what is alleged to have been disclosed), the defense is limited in their ability to respond, except to say that it remains skeptical of the government's method of classification. This skepticism continues to abound as to items 14-21, 24-26, 28-30, 34 and 38-39 (hereinafter, generally, items 14-39). All of these items have to do with various documents or objects relating to the "CIs" (376, 604 and 790).
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As example, the State and Federal court files relating to proceedings

regarding the murder of Garcia do not constitute Jencks material. The only potential Jencks material would be limited to the factual basis in the plea agreements or similar portions of the change of plea transcripts. Such portions could easily be redacted, if necessary. Further, absent an Order to seal, the court file is a public record and the court proceedings are public hearings. 2 At present, some or all of these items (generally 14-39) are under seal. Presumably, these items are sealed to protect the fact of cooperation by the CIs (376, 604 and 790). Such protection is no longer necessary nor appropriate when the fact of their cooperation is no longer secret.
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Regardless of whether the items constitute Brady, Giglio or, even, Jencks, and, thus, disclosure by the government may be required later, by continuing to have these items sealed, the government is interfering with the right of the defense to investigate its case. Such interference violates due process and

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The materiality of these items will be addressed in other filings of the defense relating to the Court's Order. These arguments are incorporated herein as though fully set forth. Upon information and belief of the defense, the State Court file (and perhaps the federal file also) as to CI-376 (M. Kramer) was not sealed initially, neither were the actual in-court proceedings. Nor is their identity. In fact, the cooperation and the sealed plea agreements as to Michael Kramer, CI-376, are a matter of public record. These matters were testified to in open court in a federal proceeding in California, United States v. Fabricant. -4-

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the Sixth Amendment rights of the defendants. See, generally, Gregory v. United States, 125 U.S.App.D.C. 140, 369 F.2d 185 (D.C. Cir. 1966). Again, generally, items 14-39, request the ATF file including contracts or other evidence of agreement with the ATF to act as an informant (for each, 376, 604 and 790). Again, the government cites, as basis to withhold these items, the Jencks Act (among other things). Such citations feed the skepticism addressed above. For example, a contract cannot qualify as Jencks material as set forth in the court's Order (filed May 23, 2005). Such a contract or other indicia of an agreement with the ATF would not involve a recitation of past occurrences. As to items 438-441, the defense skepticism continues to deepen. Item 438 calls for photographs and a handwritten roster provided by CI-376 (M. Kramer). The government "objects" as "Brady, Giglio, Roviaro, Jencks." There is no theory by which photos and a roster can be Jencks material. Neither, can these items be construed, in any way, as Brady/Giglio material. These items clearly fall within Rule 16(a)(1)(E) of the Federal Rules of Criminal Procedure. The argument of the government, presumably, that a photo depicting an agent or "CI" is Roviaro material, must be finally rejected. The government provides no support to such an assertion.
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In summary, Roviaro does not protect photographs or

recordings which depict the agents or "employed" informants. These individuals are percipient witnesses to whom no limited privilege to withhold is extended. Further, the agents have traveled the country speaking at seminars and accepting awards. They have kept neither their identity nor their image private.5 II. TIMING Finally, we must address the timing of the disclosure of the Brady/Giglio materials. There is no dispute that the Brady/Giglio line of cases requires the disclosure of exculpatory evidence, including evidence regarding the credibility of a witness. Brady v. Maryland, 373 U.S. 83 (1963); Carriger v. Stewart, 132 F.3d 463 (9th Cir. 1997); United States v. Beckford, 962 F.Supp. 780 (E.D. VA 1997).

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The "Roviaro" issue has been addressed many times in prior filings by the defense. These filings are incorporated as though fully set forth herein. Some of these instances have been preserved on video tape. -5-

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There is no dispute that the timing of such disclosures must be made at a time sufficient to permit the defense to make substantial use of the evidence at trial. Brady v. Maryland, 373 U.S. 83 (1963); United States v. Zuno-Acre, 44 F.3d 1420 (9th Cir. 1995); United States v. Beckford, 962 F.Supp. 780 (E.D. VA 1997). There can be no dispute that the trial court judge is vested with the discretion to determine the precise point at which such disclosures must be made to permit the defense to make substantial use of the information at trial. United States v. Beckford, 962 F.Supp. 780 (E.D. VA 1997). It should follow that such a decision is a fact driven balancing of the interests of due process and the dangers of early disclosure. Disclosure by the government must be made at such a time as to allow the defense to use the favorable material effectively in the preparation and presentation of its case, even if satisfaction of this criterion requires pre-trial disclosure. See, e. g., United States v. Elmore, 423 F.2d 775, 779 (4th Cir. 1970); United States v. Deutsch, 373 F.Supp. 289, 290-91 (S.D.N.Y.1974); United States v. Beckford, 962 F.Supp. 780 (E.D. VA 1997). The trial judge must be given a wide measure of

discretion to ensure satisfaction of this standard. Courts can do little more in determining the proper timing for disclosure than balance in each case the potential dangers of early discovery against the need that Brady purports to serve of avoiding wrongful convictions. The complexity and scope of the case necessitates immediate disclosure. The defendants herein are charged with numerous counts of alleged misconduct. The first two counts allege RICO and a RICO conspiracy. The indictment is the result of at least a year of investigation, including the planning and execution of an undercover operation beginning no later than April 27, 2002.6 The result is an Indictment which includes 20 predicate acts and 43 counts. The volume of paperwork through discovery and/or investigation on this matter is substantial - thousands of pages. The ATF investigation into the HAMC spans numerous states throughout the country, particularly the western United States. These States include California, Washington, Alaska, Nevada and Arizona. One or more of the informants, to whom

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In fact, very recently the government admitted that a significant volume of material, heretofore claimed either non-existent or not relevant, will be provided in that it is indeed relevant. This information appears to suggest an investigation beginning much earlier than previously thought. -6-

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much of the Brady/Giglio evidence relates, traveled to these States in their service to the ATF. For example, Michael Kramer, CI-376, is known to have traveled to Alaska, California (extensively), Nevada, New York, Florida and even Sturgis, South Dakota during the course of the investigation. Upon information and belief, Michael Kramer's information figured prominently in obtaining several search warrants outside the State of Arizona, including Alaska. Similar circumstances are believed to be true as to the other CIs, as well as the agents themselves. Furthermore, most or all of these search warrants were, at least in part, indicia warrants. Agent Slatella alleged that the HAMC is a wholly corrupt organization in order to obtain warrants seeking the indicia of membership in the club. This allegation was based upon the claims by the undercover agents, as well as the CIs. The government seems, at times, to be claiming the club is a national or worldwide organization. There is no reason to believe that its position will change prior to or at trial. Thus, the withheld material must be disclosed immediately to serve two necessities. The first, as stated above, the non-centralized nature of the evidence and the expected investigation. Second, the material is necessary to motions required to be filed by September 2, 2005. For example, motions dealing with the validity of the search warrants obtained and executed by the government. The "reasonable time to allow substantial use at trial" standard includes the ability of the defense to make investigation into the information provided as Brady/Giglio evidence. Johnson v. Baldwin, 114 F.3d 835 (9th Cir. 1997); Phillips v. Woodford, 267 F.3d 966, 978-80 (9th Cir. 2001); Bean v. Calderon, 163 F.3d 1073 (9th Cir. 1998). These CIs (as well as the agents themselves) are the key witnesses to the government's case. The information provided is not mere recitation of facts enunciated by others, these individuals participated in the alleged acts, set up the alleged acts or were present at the time the alleged acts took place. Thus, investigation of those acts, location of witnesses and corroboration of the acts and circumstances of the acts will be vital to the ability of the defendants to obtain due process at trial and effective assistance of counsel at trial. The Sixth Amendment right to effective assistance of counsel includes burdening the attorney with the duty to investigate the charges and possible defenses against the accused. Johnson v. Baldwin, 114 F.3d 835 (9th Cir. 1997); Phillips v. Woodford, 267 F.3d 966, 978-80 (9th Cir. 2001); Bean v. -7-

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Calderon, 163 F.3d 1073 (9th Cir. 1998). A reasonable expectation as to investigation after the disclosure of Brady material is likely to include multi-state travel, records search, witness search, and other investigative duties. In addition, the court must recall that most of defense counsel are appointed pursuant to the CJA. The process of investigation must begin with the application to the court for funding. Approval and processing of travel requests for such investigation takes additional administrative efforts. Due process concerns and Sixth Amendment concerns necessitate immediate disclosure. This trial is likely to last for many months. In fact, the court has directed counsel to set aside a minimum of four months for this trial beginning February 14, 2006. The trial will involve many witnesses, perhaps more than a hundred.7 The government has noticed eighteen (18) expert witnesses it intends to call to testify. This trial will involve, likely, hundreds of exhibits. Therefore, stating the obvious, this trial will require substantial preparation in the days and weeks leading up to the commencement of trial. A finding that six weeks and two weeks prior to trial for the disclosure of all of this Brady material is fundamentally unfair to the defense. Such late disclosure would allow the balance of preparation in the days immediately before trial to be tipped overwhelmingly in favor of the government. The due process and Sixth Amendment rights of the defendants would be irreparably prejudiced. In effect, only the government would be free to prepare for the trial while the defense would be scurrying about assimilating documents into their places, analyzing the need for and scope of further investigation and attempting to determine the inconsistencies between the newly disclosed materials and the previously disclosed documents. The court would likely be inundated with motions-in-limine which could have been handled earlier in a more timely and efficient manner. Further, the court should be mindful of the fact that most of the defense counsel involved in this matter are sole practitioners with little or no staff. They are not offices with unlimited financial or human resources, such as the United States Attorney's
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In the federal matter in Nevada, counsel has been advised that the government intends to call as many as 300 witnesses. The State of Nevada's non-government witness list includes ___ witnesses. These trials involve only one "act of misconduct - the Laughlin Shooting Incident. That Incident is but one of the predicate acts/charged offenses in the present matter. -8-

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Office. In summary, disclosure of Brady evidence is not merely at the discretion of the government, the adverse party. The court must exercise its discretion to protect the due process and Sixth Amendment rights of the accused. The disclosure must be made at a time sufficient to "allow the defendant to use the favorable material effectively in the preparation and presentation of its case." United States v. Pollack, 534 F.2d 964, 973 (D.C. Cir. 1976)(citing, United States v. Elmore, 423 F..2d 775, 779 (4th Cir. 1970))(emphasis added). Given the facts and circumstances of this case, immediate disclosure is both necessary and proper. Immediate disclosure is within the discretion of the court.

Date:

August 15, 2005

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

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