Free Motion to Strike - District Court of Arizona - Arizona

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PATRICIA A. GITRE, P.L.C (#011864) 331 N. 1st Avenue, Suite 150 Phoenix, Arizona 85003 Telephone: (602) 452-2918 Fax: (602) 532-7950 [email protected] Attorney for Kevin J. Augustiniak IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA UNITED STATES OF AMERICA,

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CR03-1167-PHX-DGC DEFENDANT'S MOTION TO STRIKE ADDITIONAL FACTS FROM THE GOVERNMENT'S REPLY TO DEFENDANT'S RESPONSE TO THE UNITED STATES' NOTICE OF INTENT AN MOTION TO INTRODUCE INEXTRICABLY INTERTWINED EVIDENCE OR ALTERNATIVELY EVIDENCE PURSUANT TO RULE 404(B) OR ALTERNATIVELY SUPPLEMENT THERETO

Plaintiff, vs. KEVIN J. AUGUSTINIAK Defendant.

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Defendant Kevin Augustiniak, through counsel moves to strike the government's additional facts and theory of admission alleged in its 404B reply (#1188) and not provided in the original 404b Notice (#975). Defendant requests the court to ignore the

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government's "additional facts" and newly proffered theory as part of its determination of admissibility of the proffered evidence. It the court chooses to consider the same, Defendant supplements his response as follows: Evidence that two unknown witnesses threatened the victim. #1188,

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Page 2, ll.9-14. There is no evidence that these individuals were Hells Angels or were sent by Defendant.

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That a second witness Carlos Avina claimed that he saw "other Hells Angels" at the concert with defendant. Page 2, ll.26-28. Mr. Avina did not tell the police about any "additional Hells Angels" being present

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during his initial interview on February 24, 2001. Rather, he offered this "new information" in the same "follow-up" interview conducted 21 months later on November 20, 2002 (and during this ATF and Tempe HAMC investigation charged in this case).

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The government's "facts" and conclusion that statements made to Abel Oliveraz were in reference to defendant Augustiniak's membership with the Hells Angels." Page 3, ll.15-22 There is no evidence that the statements were directly connected with the Hells Angels other than ATF Agent Detective Hoffman's weak attempt to make such a connection through Amber Smith. What Ms. Smith states (after Detective Hoffman asks if there is a connection) is that she "believes" it was a reference to the Hell's Angels and she "was sure" that she had talked to Olivarez about Augustiniak's HAMC membership. See Attachment C, page 67,

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last paragraph. This is hearsay not within any exception. FRE 803(3) 1

FRE 803(3) Then existing mental, emotional, or physical condition. A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will. "The state-of-mind exception does not permit the witness to relate any of the declarant's statements as to why he held the particular state of mind, or what he might have believed that would have induced the state of mind. If the reservation in the text of the rule is to have any effect, it must be understood to narrowly limit those admissible statements to declarations of condition-"I'm scared"-and not belief-"I'm scared because [someone] threatened me." United States v. Emmert, 829 F.2d 805, 810 (9th Cir.1987) (quoting United States v. Cohen, 631 F.2d 1223, 1225 (5th Cir.1980).

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It is clear that the government concedes that this evidence constitutes propensity evidence precluded by FRE 404(b) but now claims that "[t]he United States is using these three incidents to show that Defendant's knowledge and intent in the present case

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was to act on behalf of or in furtherance of the enterprise," a theory that was not articulated in its 404B notice. Reply, p. 5. ll.16-19. Again, the government does not "attempt to articulate the precisely the evidential hypothesis by which a fact of consequence may be inferred from the other acts evidence." FRE 401; United States v.

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Mehrmanesh, 689 F.2d 822, 830 (9th Cir.1982); see also United States v. ArambulaRuiz, 987 F.2d 599, 602-03 (9th Cir.1993) (quoting Mehrmanesh). There is no evidence that any HAMC members other than Augustiniak were criminally involved directly or indirectly, in these incidents. To add additional insult, the government dismisses defendant's proper analysis of the law and instead requests the court to do the government's job by "encouraging" the court to come "to its own conclusions" by reviewing the attached police reports.2 The government has the burden of proof which it utterly fails to meet. The government's ever shifting facts and theories establish that it really intends to offer this

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evidence only to show that Kevin Augustiniak is a violent person and therefore, the jury may conclude that he must have committed this murder. This is a dangerous road to travel in light of the government's weak evidence (Kramer's self serving testimony), its belief that any and all evidence is admissible simply because RICO has been charged

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and more astonishing, that FRE 403 does not apply in this case. The government's

The government dismisses without explanation, defendant's legal arguments claiming that it relies on cases relevant to the issue of identity instead of knowledge and intent. Defense counsel reviewed its cited cases again and each deal with admission of 404b evidence to prove knowledge and intent not identity.
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backdoor attempt to get this evidence to the jury under any of its proffered theories is exactly what our court system abhors ­convicting a defendant based on character. Defendant requests that the Court deny the government's motion to introduce the

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proffered evidence on any ground. RESPECTFULLY SUBMITTED on February 14, 2006. PATRICIA A. GITRE PLC

/s/Patricia A. Gitre Attorney for Defendant Kevin Augustiniak

ORIGINAL filed electronically and copies of the foregoing Delivered via electronically or by email on 02/14/2006 Clerk of the Court Judge David G. Campbell Sandra Day O'Connor United States Courthouse 401 West Washington Street Phoenix, Arizona 85003 Tim Duax and Keith Vercauteran Government counsel All Defense Counsel /s/ Patricia A. Gitre

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