Free Motion to Dismiss Counts (Less Than All) - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 13

JOSEPH E. ABODEELY Attorney at Law Arizona State Bar # 2683 1345 West Monroe St. Phoenix, Arizona 85007 Tel: (602) 253-2378 Fax: (602) 253-3342 Attorney for Craig T. Kelly UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA )No. CR-03-1167-PHX-DGC ) )SUPPLEMENT TO DEFENDANT KELLY'S )OBJECTION TO GOVERNMENT'S EX PARTE )MEMORANDUM IN SUPPORT OF ITS )CERTIFICATION OF COMPLIANCE WITH RULE 16 )AND KELLY'S MOTION TO DISMISS 12. Craig T. Kelly, et al., ) Defendants. ) (EVIDENTIARY HEARING REQUESTED) ______________________________) Defendant, CRAIG T. KELLY, by and through his counsel, undersigned, hereby supplements United States of America, Plaintiff, vs.

14 his objection to the Government's Ex Parte Memorandum in Support of Its Certification of 15 Compliance with Rule 16 and supplements his Motion to Dismiss this case for the reasons stated in 16 the following memorandum of points and authorities. 17 MEMORANDUM OF POINTS AND AUTHORITIES 18 Upon information and belief and after conferring with Mr. Michael Kennedy, an assistant 19 federal public defender in Nevada, undersigned counsel represents to the Court that many of the 20 video tapes of the Laughlin shooting incident at the Harrah's Casino are missing significant portions 21 as to quantity and materiality. Prior to the Las Vegas police department disclosing copies of tapes 22 they seized from Harrah's to the parties in the prosecution in the District of Nevada, they edited 23 them as testified to by a witness before the Nevada state grand jury. The federal prosecutors in 24 Nevada provided the edited and copied tapes to the prosecutors in the instant case, who in turn have 25 provided the video tapes to defense counsel in the instant case. 26

Case 2:03-cr-01167-DGC

Document 901

Filed 11/18/2005

Page 1 of 4

1 2 3 4 5 6 7 8 9 10 11 12

Undersigned counsel learned that "core tapes" used by the Nevada grand jury were: Item 404 TR 02-042, Item 405 TR 02-043, Item 406 TR 02-044, Item 407 TR 02-045, Item 408 TR 02-046, and Item 409 TR02-047. The Item 409, provided as discovery by the government to defense counsel in the instant case, had only 10 minutes of video; and this tape is supposed to have the footage of the Mongols harassing the Hell's Angels prior to the melee which corroborates the theory of self-defense. The other "Items" of the "core tapes" are either missing, of poor quality, or have been seriously edited by someone. Clearly, this is relevant, material, and crucial evidence which should have been provided to the defense by now. It has not been provided. Criminal Division Chief, Patrick Schneider of the United States Attorney's Office appeared at the eleventh case management conference and confirmed that the government will have fully complied with its Rule 16 disclosure obligations by November 4, 2005. The government filed a protective order on Matrix item 459­"all investigative reports for Craig Kelly and Hank Watkins." Clearly, that overly broad request for a protective order violates both the

13 14 15 16 17

spirit of and Rule 16, itself. "All investigative reports..." does not even contemplate redacted reports. At the last case management conference, counsels for Watkins and Kelly informed the Court that they recently received information showing that the ATF agents interviewed a person who had committed the assault on Gutierrez for which Watkins and Kelly are charged.. That information was unquestionably Brady material and Rule 16 material since it went to the heart of

18 19 20 21 22 23 24 25 26

presenting a defense; yet, the government waited two years to provide it. The government should not be allowed to withhold "all investigative reports". On November 4, 2005, three defense counsel, including undersigned counsel, met with Mr. Duax, an AUSA assigned to prosecute the instant case. At a minimum, it was clear from the discussion that the government had not provided all the tapes it should, key tapes were missing, some of the tapes were missing video footage, and some were of inferior quality for viewing. The United States Attorney has an affirmative duty to provide to the defendants in this case all exculpatory, extenuating, or mitigating evidence known, or, with reasonable diligence should be known, to the trial counsel which reasonably tends to negate the guilt of the accused of any offense charged, reduce the guilt of the accused of an offense charged, or reduce the -2Filed 11/18/2005

Case 2:03-cr-01167-DGC

Document 901

Page 2 of 4

1 2 3 4

punishment. Kyles v. Whitley, 514 US 419, 115 S. Ct. 1555 (1995). discovery pursuant to Rule 16, Fed. Rules Crim. Proc.

It also must provide all

The United States Attorney also has a duty to have mechanisms in place to insure that the discovery is obtainable from the law enforcement agency expeditiously so that it can be disclosed to the defense. Kyles v. Whitley, supra. To date, it has not provided appropriate discovery in a

5 6

timely fashion. Conclusions

7 In this Court's order dated August 2, 2005, the Court denied Defendant Smith's Motion to 8 9 10 11 12 13 14 15 16 17 trial. Instead of preparing for cross-examination or motions, defense counsel and their limited staff 18 19 20 21 22 Defendants have still not received the necessary videotapes, unedited, in good quality, and 23 24 25 26 -3Filed 11/18/2005 complete; and if and when they do it will be like starting the case anew. If the Court is not inclined to dismiss the entire case due to the government's misconduct, certainly the Court could exercise its discretion to dismiss the predicate acts as they relate to the Laughlin shootings. Since those charges will be investigating the discovery which should have and could have been provided two years ago. Defense counsel will probably have to file motions to continue the trial during the trial which the Court will probably deny because the trial is in progress, but counsel will still want to make a thorough record how the lateness of the discovery due to the recalcitrance of the prosecutors has caused them prejudice. Dismiss the predicate acts relating to the Laughlin shooting incident with prejudice as a sanction for the government's "purported failure to timely disclose all of the videotapes." The Court opined that the appropriate sanction for the government's failure to comply with its disclosure obligations rests in the Court's sound discretion. United States v. Gee, 695 F.2d 1165,1168 (9th Cir. 1983). This Court noted that it should not impose a sanction harsher than necessary to accomplish the goals of Rule 16. The Court found that the government's conduct was not sufficiently flagrant to justify dismissal. A key issue before this Court has been, still is, and will probably continue to be how the government's conduct relating to discovery has prejudiced the defendants. This will probably become clearer when the government provides an abundance of discovery at the eleventh hour, and the defendants are compelled to conduct further investigation during the anticipated four month-long

Case 2:03-cr-01167-DGC

Document 901

Page 3 of 4

1 2 3 4

are being dealt with at the state and federal levels in Nevada, the charges in the case in the District of Arizona are redundant. For the aforementioned factual and legal reasons, Defendant Kelly respectfully requests this Honorable Court to dismiss all the charges in the instant case or in the alternative to dismiss all the predicate acts and charges relating to the Laughlin incident.

5 6 7 8 s/ Joseph E. Abodeely 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 -4Filed 11/18/2005 JOSEPH E. ABODEELY Attorney for Craig T. Kelly I hereby certify that on November 16, 2005, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to all counsel. CERTIFICATE OF SERVICE JOSEPH E. ABODEELY Attorney for Craig T. Kelly RESPECTFULLY SUBMITTED this 16th day of November 2005.

s/ Joseph E. Abodeely

Case 2:03-cr-01167-DGC

Document 901

Page 4 of 4