Free Motion for Miscellaneous Relief - District Court of Arizona - Arizona

1 JON M. SANDS Federal Public Defender 2 District of Arizona 850 W. Adams Street, Suite 201 3 Phoenix, Arizona 85007 4 Telephone: (602) 382-2747 5 DEBORAH EULER-AJAYI State Bar No. 010537 6 Asst. Federal Public Defender Attorney for Defendant 7 [email protected] 8 9 10 11 12 13 14 15 16 -vsJeanette B. Wilcher, Defendant. Jeanette Wilcher, through undersigned counsel, again renews her motion United States Of America, Plaintiff, IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA No. CR-03-1098-PHX-EHC THIRD MOTION TO PRECLUDE, OR IN THE ALTERNATIVE, TO REDEPOSE CONNIE GILLASPIE

17 to preclude the introduction of Connie Gillaspie's videotaped deposition or, in the 18 alternative, requests permission to conduct a new and more complete deposition prior 19 to trial. This motion is supported by Crawford v. Washington,124 S.Ct. 1354 (2004), 20 and the attached Memorandum of Points and Authorities. 21 22 23 24 25 26 27 28 s/ Deborah L. Euler-Ajayi___________ DEBORAH EULER-AJAYI Assistant Federal Public Defender Excludable delay under 18 U.S.C. §3161(h)(1)(F) and (8)(A) will not occur as a result of this motion or from an order based thereon. Respectfully submitted: March 31, 2006. JON M. SANDS Federal Public Defender

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MEMORANDUM OF POINTS AND AUTHORITIES On January 3, 2005, the defense moved to preclude the government's use

3 of Connie Gillaspie's videotaped deposition. That motion was denied without 4 prejudice on March 15, 2005. 5 6 7 8 9 10 As this court is aware, both sides are represented by lawyers who are relatively new to the case and none of the current lawyers were involved in the Gillaspie deposition. Undersigned counsel was appointed to represent Jeanette

Wilcher on August 2, 2005, and on November 14, counsel moved to preclude the Gillaspie deposition or in the alternative to redepose Mrs. Gillaspie. One of the

1 11 objections related to the government's interference with cross examination. The 12 Court did not rule on the motion until March 6, 2006, at which time the motion was

13 denied. 14 On March 6, the Court also granted the government's motion to depose 15 witness Larry Carr. Undersigned counsel unsuccessfully opposed the motion. Mr. 16 Carr was deposed in Tampa, Florida, on March 23, 2006, and the transcripts were 17 received on March 27 or 28. Trial is set for April 5, 2006. 18 On March 21, undersigned counsel renewed her request to redepose Mrs. 19 20 21 22 23 24 25 26 27 28 The edited deposition video shows Mrs. Gillaspie's nonverbal reactions to the many objections raised by previous government counsel, and her reactions and responses show how the objections in fact blocked a full and complete cross examination. Counsel understands that the unedited video, which she has not seen, contained many more heated exchanges between the lawyers. -21

Gillaspie based on four major areas of deficiency in the deposition. The government responded on March 27. Due to time constraints, no reply was filed. The parties

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1 appeared in court three days later to argue the motion; however, the motion was 2 denied without further discussion or argument. 3 This motion incorporates the four major areas raised in her March 21 4 motion and supplements, plus many additional deficiencies identified as the result of 5 Mr. Carr's deposition. These deficiencies cannot be corrected absent further 6 testimony by Mrs. Gillaspie. 7 1. Medications. In its March 2, 2006, Opposition to the motion to re8 depose Mrs. Gillaspie, the government submitted a doctor's letter in which the doctor 9 listed a number of medications being taken by the witness and also noted that the 10 11 medications can alter the witness' cognitive ability. The government's original 12 motion, filed on November 16, 2004, did not say anything about medications or 13 altered cognitive ability, and those subjects were not discussed at the deposition. 14 There is no indication that the medication was disclosed to defense counsel prior to 15 the deposition. 16 2. Rex Allen. During Mrs. Gillaspie's FBI interview in August 2002, 17 Mrs. Gillaspie said that she did not want to be involved with her nephew and what he 18 was trying to do. This was not explored during the deposition cross examination. 19 20 21 22 23 24 3. Rex Allen's debts. During her FBI interview, Mrs. Gillaspie said that her nephew owed money to Sansea. This was not covered during the deposition cross examination. 4. Rex Allen's financial interest. During her deposition, Mrs. Gillaspie was not questioned about her knowledge of Rex Allen's financial interest in this

25 investment. (He was a beneficiary of the inheritance but also made a side deal to get 26 a referral fee for getting his aunt into the investment.) 27 28 -3-

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1 2 5. Role of Larry Carr. During her FBI interview, Mrs. Gillaspie said 3 that it was not her idea to get Mr. Carr involved with the deal. This was not 4 adequately covered during the deposition cross examination. 5 6 7 8 9 10 6. Payments to Larry Carr. During her deposition, Mrs. Gillaspie was not asked about the payment agreement signed by Mr. Carr at or after the January 1999 meeting in Phoenix. Mr. Carr testified, at his video deposition, that he signed this agreement with her knowledge. 7. Distrust of Larry Carr. During her deposition (but not during the FBI

11 interview), Mrs. Gillaspie said that she had a negative impression of Mr. Carr. She 12 also said that he lied, but then gave incomplete answers to defense counsel's attempt 13 to further explore the issue during the deposition cross examination. 14 8. Gonzales. During her deposition, Mrs. Gillaspie was not questioned 15 about her understanding of Gonzales' financial interest in the investment. Mr. Carr 16 testified about Mr. Gonzales (his partner), his involvement in the investment, and his 17 financial interest in the investment. 18 9. People benefitting from the contract. During her FBI interview, Mrs. 19 Gillaspie said that the money was split three ways (Gonzales, Allen, Carr). This was 20 not explored during the deposition cross examination. 21 10. Warnings to Gillaspie. During his deposition, Larry Carr testified 22 that he twice warned Mrs. Gillaspie to seek the advice of counsel and/or her 23 accountant. This was not fully explored during cross examination at the Gillaspie 24 25 deposition. 26 27 28 -4-

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11. Sansea contract. During his deposition, Larry Carr testified that as

2 a result of his input the contract may have been changed at the meeting. Mrs. 3 Gillaspie was not questioned about when and where the contract was prepared and/or 4 amended. 5 6 7 8 9 10 12. Sansea financial interest. During her deposition, Mrs. Gillaspie was not questioned about her understanding of Sansea's financial interest in the investment. Larry Carr testified about this during his video deposition. 13. Gillaspie authorizations. During her deposition, Mrs. Gillaspie was not questioned about various documents in which she purportedly authorized various

11 actions (usually relating to changes in the distributions of payments) to be taken by 12 Rex Allen, Larry Carr, and/or Sansea. Larry Carr testified about actions that were 13 taken as a result of documents purportedly signed by Mrs. Gillaspie and produced by 14 Rex Allen. 15 14. Documents. During her deposition, Mrs. Gillaspie was shown only 16 one document (her contract with Sansea). She was asked only a few questions about 17 that document and was never questioned about other documents relating to the 18 investment. Larry Carr testified about a number of other documents. 19 20 21 22 23 24 Undersigned counsel previously raised the concern that during Larry Carr's deposition there were likely to be numerous areas of contradiction between Mr. Carr and Mrs. Gillaspie, and that is exactly what occurred. Absent additional testimony by Mrs. Gillaspie, the defense is saddled with incomplete cross examination and no way to impeach either witness. Her hands are tied by previous

25 defense counsel, and the limitations placed on his cross examination during numerous 26 contentious exchanges between counsel, and undersigned counsel also has no way of 27 28 -5-

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1 knowing how much of the discovery had been reviewed at that time. This creates an 2 unfair and incomplete presentation of the facts of this case, inadequate cross 3 examination, and denies Ms. Wilcher the opportunity to fully confront the witnesses 4 and evidence against her. 5 6 7 8 9 10 11 12 13 14 s/ Deborah L. Euler-Ajayi___________ DEBORAH EULER-AJAYI Assistant Federal Public Defender Although the Crawford objection as well as some of the problems that arose during the Gillaspie deposition were addressed in Mr. Ryan's motion dated January 3, 2005, undersigned counsel also renews those objections and re-urges this Court to reconsider its ruling. Respectfully submitted this 31st day of March, 2006. JON M. SANDS Federal Public Defender

15 Copy of the foregoing transmitted by CM/ECF this 31st day of March, 16 2006, to: 17 CLERK'S OFFICE 18 United States District Court Sandra Day O'Connor Courthouse 19 401 W. Washington Phoenix, Arizona 85003 20 JOHN LOPEZ 21 Assistant U.S. Attorney Two Renaissance Square 22 40 North Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 23 Copy mailed to: 24 25 JEANETTE WILCHER Defendant 26 s/ Deborah L. Euler-Ajayi 27 28 -6-

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