Free Motion in Limine - District Court of Arizona - Arizona

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JOSEPH E. ABODEELY Attorney at Law Arizona State Bar # 2683 1345 West Monroe St. Phoenix, Arizona 85007 [email protected] (Email) Tel: (602) 253-2378 Fax: (602) 253-3342 Attorney for Craig T. Kelly

6 UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 ) ) Plaintiff, ) ) vs. ) ) 12. Craig T. Kelly, et al., ) ) Defendants. ) ______________________________) United States of America, No. CR-03-1167-PHX-DGC DEFENDANT KELLY'S MOTION IN LIMNIE

(EVIDENTIARY HEARING REQUESTED)

Defendant, CRAIG T. KELLY, by and through attorney , undersigned, moves this Court to preclude the admissibility of video tapes of the Laughlin incident or in the alternative to hold an evidentiary hearing to determine the authenticity and admissibility of the tapes prior to trial for the reasons stated in the following memorandum of points and authorities. It is expected that excludable delay under Title 18 U.S.C.§3161(h)(1)(F) will occur as a result of this motion or of an order based thereon. MEMORANDUM OF POINTS AND AUTHORITIES FACTS: The Laughlin incident involved a melee between the Mongols Motorcycle Club and the Hells Angels Motorcycle Club (HAMC). The actions occurred at the Harrah's Casino and involved the death of two HAMC members and one Mongol. The Mongols had been harassing the HAMC prior to the melee which started when a Mongol fired the first shot and the HAMC defended themselves. James Causey, who worked for the Las Vegas Metro police department, testified before a grand jury. He said that Harrah's has a control room with hundreds of VCRs to record activity of hundreds of cameras in the casino and on adjacent grounds. (See Eighth Judicial District Court, Clark County, Nevada Reporter's Transcript of proceedings before the Grand Jury dated March 18, 2004, hereinafter referred to as "RT" at Bates Stamp 19795, l. 15-18 and 19807, l. 20-25 ). Causey said that it was the responsibility of a casino employee to keep the data on the video tapes as a business record. (RT at BS 19813, l. 19-23). He said that he initially received six tapes

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from homicide. (RT at BS 19815, l. 13-17). Causey further testified that the six tapes he got came directly from Harrah's, and homicide brought them to him to duplicate. (RT at BS 19823, l. 7-11). He didn't recall who dropped off the tapes. He came in one shift and helped copy the tapes at that time. He assumed they went into evidence. (RT at BS 19823, l. 16-20). He testified that the best way to show the evidence is to use a like VCR that recorded it to play it back. (RT at BS 19825, l. 3-5). Causey said that the tapes he took were in analog format. (RT at BS 19827, l. 23-24). Then he described how the tapes were changed to digital format. "Q. (Prosecutor) And then you changed that over into a digital format? A. (Causey) Yes, and by me, it wasn't just me, at that time I had not been certified in the Cognitec system, therefore couldn't do it myself. I went there and with the assistance of several detectives from the Tourist Safety Unit with Metro utilized their Cognitech System, several of their operators, and I basically stood there and told them which tapes I needed, what portions, what pertinent time periods, and went through each and every tape, reviewed them and said we need this, we need that, and that was my involvement at that stage." (RT at BS 19829, l. 5-16). Causey also testified that no enhancement was done to any of the video other than sometimes changing the screen resolution. (RT at BS 19873, l. 7-10). He explained that: "So what happens, due to what's called an under-scanned issue, you don't see what is actually all there, so what we did sometimes is shrink that original capture down to a smaller size in order that you would see the edge of the video..." (RT at BS 19873, l. 19-23). Causey was asked if all of the relevant and viewable video segments for each of the individuals was in the DVDs (which he made from analog to digital), and he answered, "yes". (RT at BS 19875, l. 18-21). Then Causey was asked: "By and large you have, what, about ninety percent of it of each person?" (RT at BS 19877, l. 1-4). (Emphasis added). Causey answered, "yes". (RT at BS 19877, l. 4). The video tapes most recently disclosed by the government on December 7, another day of infamy for the misconduct of the prosecution in this case, are still not accurate nor complete nor do they evidence authentication nor chain or custody. (Defendant Kelly hereby incorporates by reference the factual statements contained in Defendant McKay's Supplemental Motion to Dismiss Laughlin Predicate Act filed with this Court On December 12, 2005). -2Filed 12/14/2005

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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 LAW AND ARGUMENT: Relevant evidence is admissible; irrelevant evidence is not admissible. Rule 401 and Rule 402, Federal Rules of Evidence. The video tapes in question are not admissible as a business record under Rule 803 (6) because the source of information or the method or circumstances of preparation indicate lack of trustworthiness. Causey admitted that ten per cent of the DVDs which he prepared from Harrah's original video tapes was missing. Furthermore, Causey and numerous others were involved in changing and selecting the content of the tapes the government intends to use at trial. Rule 901 does not allow for the authentication of the edited tapes or DVDs by Causey. He was not at the scene of what each camera was recording as it was recording. The tapes or DVDs might have been admissible under Rule 1001(2)­photographs and videotapes and Rule 1001 (4)­duplicates. A "duplicate" is a counterpart produced by the same impression as the original. Rule 1003 deals with admissibility of duplicates. "A duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original." The purpose of the tapes is to show who started the melee and for the defense to demonstrate self-defense in the defendants' actions. The government's purpose is to show aggressive actions by HAMC members to support their theory that the HAMC had a goal to start a fight. It is clear that the government has "doctored" the evidence to show what it wants to show. Ten per cent of the activity is missing per Causey's own admission. The government should have made true copies of the originals­all of them that showed the melee­not just what Causey pointed out he wanted­and made the true "duplicates" available in discovery over two years ago. Now, without having seen all the newly provided tapes, the defense has been rushed to file motions only one week after their disclosure. The defendants have been greatly prejudiced. The only way the tapes can be authenticated is if a proponent testifies that the tapes are what he says they are. ( See 16 Am Jur Proof of Facts 3d, p. 523). It is clear that Causey cannot do so. He cannot testify that the tapes in question give a fair and accurate portrayal of what he says they are. (Id., p.524). The "silent witness" theory of admissibility cannot be met by the government because (1) a photographic expert must testify that the videotape had not been altered in any way, or (2) testimony as to chain of custody must be established, or (3) there must be testimony that the checking and use -3Filed 12/14/2005

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of the video camera and the validity of the videotape process in the instant case, or (4) testimony that the videotape evidence introduced at trial was the same as what the witness had inspected immediately after the videotape had been recorded. (Id., p. 527). There are eight steps for admission of videotape into evidence. 1. Proffering party has the videotape cassette marked for identification. 2. Opposing party is allowed to examine the videotape cassette. 3. Proffering party presents videotape cassette to foundational witness. 4. Proffering party lays foundation through foundational witness. 5. Proffering party moves to have videotape evidence admitted into evidence. 6. Proffering party asks the judge if he wishes to examine the cassette. 7. Opposing party conducts voir dire examination of foundational witness. 8. Proffering party requests court ruling on admissibility into evidence. (Id., p. 512). Defense counsel do not know exactly which videotapes or DVDs the government intends to use at trial because of the government's incomplete disclosures, untimely disclosures, and bait and switch disclosures; and the government attorneys have been disingenuous with their so-called certification to the Court about complying with discovery. As a matter of judicial economy, it is better to deal with all of these issues and the defense objections prior to the selection of a jury than to do so during trial. For the aforementioned factual and legal reasons, Defendant Kelly respectfully requests this Honorable Court to preclude the admissibility of the videotapes and/or DVDs the government intends to use at trial or in the alternative to conduct an evidentiary hearing prior to trial to determine the authenticity and the admissibility of the videotapes or DVDs.

RESPECTFULLY SUBMITTED this 14th day of December, 2005. s/Joseph E. Abodeely

21 JOSEPH E. ABODEELY 22 Attorney for Craig T. Kelly 23 24 CERTIFICATE OF SERVICE 25 I hereby certify that on December 14, 2005, I electronically transmitted the attached document to the 26 -4Filed 12/14/2005

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Clerk of the U.S. District Court using the CM/ECF System for filing and for transmittal of a Notice of Electronic Filing to all counsel, and I emailed a copy to the Hon. David G. Campbell. s/ Joseph E. Abodeely JOSEPH E. ABODEELY Attorney for Craig T. Kelly

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