Free Motion to Dismiss Counts (Less Than All) - 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 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 ) )DEFENDANT KELLY'S OBJECTION TO )GOVERNMENT'S EX PARTE MEMORANDUM IN )SUPPORT OF ITS CE RT IFICATION 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 objects to the Government's Ex Parte Memorandum in Support of Its Certification of Compliance with Rule 16 and Moves this Honorable Court to Dismiss this case for the reasons stated in the following memorandum of points and authorities. MEMORANDUM OF POINTS AND AUTHORITIES The Court was informed at a July Case Management Conference that there were as many as fifty-one video tapes of the Laughlin shooting incident at the Harrah's Casino that the government, in Las Vegas, had disclosed to the parties in the prosecution in the District of Nevada between late April and the middle of May 2005. Upon information and belief, many of the video tapes relate to the time period of the shooting which is the subject matter of both the District of Nevada prosecution and the instant case before this Court. Clearly, this is relevant, material, and crucial evidence in the case before this Court. Several of these videos had been delineated for use at trial by the prosecution in the District of Nevada (according to the employees of All Around Video in Las Vegas). At the United States of America, Plaintiff, vs.

Case 2:03-cr-01167-DGC

Document 836

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July 8, 2005 court appearance, the prosecutors stated that they would order them and produce these video tapes to the defense. Subsequently, in a letter dated August 12, 2005 sent to counsel for Defendant Smith, the prosecutors said that this portion of the discovery was available for sale in Nevada at All Around Video. To date, the local prosecutors have not coordinated with the US Attorney's Office in Nevada to make this discovery available to the defendants in the case in the District of Arizona before this Court. The Court is aware of the logistical maneuvering required simply to obtain the CDs located here in Phoenix. At the last Case Management Conference, the Assistant US Attorneys promised to provide wiretap discovery. CD 16, the alleged wiretap CD in this case, has information relating to pen registers, applications for wiretapping, affidavits for searches, warrants for searches­but no minimization logs. orders. 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 punishment. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L. Ed. 2d 215 (1963), U.S. v. Aqurs, 427 U.S. 97, 93 S.Ct. 2392, 40 L.Ed. 2d 342 (1976), U.S. v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed. 2d 481 (1985); Kyles v. Whitley, 514 US 419, 115 S. Ct. 1555 (1995). 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. The prosecutors have failed to do their duty, and the Court has previously recognized this fact. "In this order, the Court will take the extraordinary step of requiring the Chief of the Criminal Division of the United States Attorney's Office, or a comparable officer designated by the United States Attorney, to appear in Court and personally certify that the Government has complied with its disclosure -2Filed 10/14/2005 It also must provide all discovery pursuant to Rule 16, Fed. Rules Crim. Proc. To date, it has not. It is painfully clear that the government has not and does not intend to comply with its legal requirements in keeping with due process, fair play, and with this Court's

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obligations under Rule 16 of the Federal Rules of Criminal Procedure." (Emphasis added). (Court Order dated 14 September 2005). Rather than obey this Court's unequivocal order, or file a motion for a protective order, the government filed its ex parte memorandum in support of its alleged certification in order to prevent the defense counsel from scrutinizing the government's handiwork. This Court previously recognized the dilatory conduct of the government counsel. "For twenty months and through numerous orders the Court has attempted to obtain full compliance with Rule 16. The Government has made numerous disclosures to defense counsel, but those disclosures have been sporadic and delayed, often untimely under the Court's schedule, and appear as yet to be incomplete." Id. The government hubris in failing to comply with the Court's order is an affront to the legal counsel representing individuals accused of serious crimes in this case; but more egregious, it is an affront to the authority of this Court. Conclusions There is no justification consistent with the posture of this case at this time­ten case management conferences, three presentations before the grand jury, numerous defense requests including motions (written and oral), matrix after matrix, and the Court's explicit deadlines and orders­for the government to file an ex parte memorandum of compliance. No new eleventh hour superceding indictment to continue to try to get it right or the alleged claim of protection of informants will justify the government's noncompliance, either. It is time for this Honorable Court to dismiss this case. RESPECTFULLY SUBMITTED this 14th day of October, 2005. s/ Joseph E. Abodeely JOSEPH E. ABODEELY Attorney for Craig T. Kelly CERTIFICATE OF SERVICE

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I hereby certify that on October 14, 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. s/ Joseph E. Abodeely JOSEPH E. ABODEELY Attorney for Craig T. Kelly

Case 2:03-cr-01167-DGC

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