Free Motion to Continue - 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 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 SECOND MOTION TO CONTINUE PRETRIAL MOTION DEADLINE AS TO AUGUSTINIAK

Plaintiff, vs. KEVIN J. AUGUSTINIAK Defendant.

Defendant Kevin Augustiniak, through counsel moves to continue the pretrial deadline (substantive and motions in limine) from January 13, 2006 until the end of February, 2006. Excludable time is expected

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to result from this motion or an order thereon. AUSAS Vercauteran and Duax have no objection to Defendant's request for a continuance as to the pretrial motion deadline. This court previously denied Defendant's Motion to continue in part with an opportunity to present to this court any motions by January 13, 2006. Counsel cannot currently meet this deadline for the following reasons set forth below. From March, 2004 through July, 2005 the government disclosed voluminous discovery related to other defendants and some discovery relevant to Kevin Augustiniak. However, the government withheld the bulk of the discovery related to Michael Kramer (who pled to manslaughter in both state and federal

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courts for the Garcia murder) and Operation Dequiallo until after it was ordered to disclose it on November 4, 2005.1 The government did not disclose relevant DNA scientific analysis until August 12, 2005 which was not received by this defense counsel until the middle of September.2 Further, this defense counsel was in trial in August and then preparing for a different trial scheduled in October, 2005. When she finally had an opportunity to review the DNA disclosure, it was determined that a large portion of the discovery was not disclosed. Defense counsel requested this information on December 1, 2005. On December 21 and 22, 2005, the government disclosed additional DNA testing as well as some of the requested discovery. On January 10, 2006 the government was again notified of missing disclosures relating to the DNA evidence. In addition, this defense counsel spent most of November and December working with the government and defense counsel determining whether the government fulfilled its obligation pursuant to court order including but not limited to, organizing the new discovery and comparing it the prior to discovery, determining defective and missing audio and video recordings, meeting with the government, reviewing protective order items against the Matrix, revising the Matrix, meetings with the government and finally, reporting to defense counsel the status of discovery. Further, although this counsel has not focused on the Laughlin investigation, she assisted Ms. Hull in reviewing, investigating and preparing the memorandum the court ordered due on December 31, 2005 (most defense counsel were not available during the holiday to contribute to this memorandum). At the same time, she was also preparing for USA v Anderson set for February 14, 2006 as well as another trial USA v Montesanti, set in March, 2006.

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The disclosure regarding Operation Dequaillo included over 100 ROIS, transcripts, agent notes, surveillance logs, transcripts, approximately 125 CD ROMS (audio and video), DNA evidence (194 pages) and Fabricant transcripts (already received) as well other material related to other counts in the indictment. Ms. Gitre and her paralegal spent voluminous hours sorting and organizing this material (as well as other material for the entire defense) comparing it to what had already been disclosed, determining missing reports, missing CDROMS, defective CDROMS and creating indexes for the government to resolve these issues. The Operation Dequiallo material alone is 13 volumes.

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Throughout this case, counsel has abided by all deadlines set by this Court and has on behalf of the entire defense, worked diligently to address the court's requests particularly regarding discovery disputes including preparing and updating the Discovery Matrix. Even though this case has been pending since December 2003, for all practical purposes, this counsel is afforded a very narrow window to effectively and competently prepare her defense. From the beginning of this case, the government has been granted numerous extensions on disclosure of discovery despite their promises of full disclosure early on in this case.3 Mr. Augustiniak should be afforded the same opportunity, particularly since the most of the belated government disclosure is relevant to his defense. Mr. Augustiniak is prejudiced if his counsel is granted enough time to complete substantive review of the voluminous discovery disclosed on November 4, 2005 and thereafter. Defense counsel simply cannot adequately and effectively represent her client by January 13, 2006. For the above reasons, Counsel respectfully requests that this Court grant a continuance as to all pretrial motions including motions in limine until the end of February, 2006. RESPECTFULLY SUBMITTED on January 12, 2006. PATRICIA A. GITRE PLC /s/Patricia A. Gitre Attorney for Defendant Kevin Augustiniak

The discovery was sent to coordinating counsel and then to APEX. This counsel was not able to retrieve the discovery relating to her case until the middle of September, 2005. 3In addition to the two week, six week, protective order material, and the government's recent notice of yet more undisclosed evidence, there will additional disclosures made by the government very close to trial including but not limited to additional DNA testing in this case not yet performed by the government. It is expected that there will be contested issues relating to the existence and independent testing of original biological evidence. .
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ORIGINAL filed electronically and copies of the foregoing Delivered via electronically or by email on 01/12/2006 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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