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, renews her motion to United States Of America, Plaintiff, IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA No. CR-03-1098-PHX-EHC SECOND MOTION TO PRECLUDE, OR IN THE ALTERNATIVE, TO REDEPOSE CONNIE GILLASPIE

17 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 21, 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 Undersigned counsel was appointed to represent Jeanette Wilcher on August 2, 2005. On November 14, 2005, counsel moved to preclude the deposition or to redepose Mrs. Gillaspie. The Court did not rule on the motion until March 6, 2006, at which time the motion was denied. On March 6, the Court also granted the government's motion to depose

1 11 witness Larry Carr. Undersigned counsel opposed the motion. Mr. Carr is an 12 important witness for the government but it will be next to impossible to cross

13 examine and prospectively impeach him with likely contradicting trial witnesses who 14 have not yet testified. Trial is set for April 4, 2006. 15 17 There are several reasons to conduct a new deposition, and these reasons 16 cannot be resolved in another fashion. First, in its March 2, 2006, Opposition to the motion to re-depose Mrs. 18 Gillaspie, the government submitted a doctor's letter in which the doctor listed a 19 number of medications being taken by the witness and also noted that the medications 20 can alter the witness' cognitive ability. The government's original motion, filed on 21 November 16, 2004, did not say anything about medications or altered cognitive 22 ability, and those subjects were not discussed at the deposition. There is no 23 indication that the medication information was disclosed to defense counsel prior to 24 25 the deposition. 26 27 28
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That deposition will be conducted on March 23, 2006, in Tampa, Florida.

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Second, undersigned counsel has noted a number of important issues that

2 were discussed during Mrs. Gillaspie's FBI interview in August 2002 but were not 3 adequately (if at all) covered during the deposition cross examination. For example, 4 Mrs. Gillaspie told the FBI that she did not want to be involved with her nephew and 5 6 7 8 9 10 what he was trying to do; she said that it was not her idea to get Mr. Carr involved with the deal; she said that her nephew owed money to Sansea; she said that the money was split three ways (Gonzales, Allen, Carr). In addition, during her deposition (but not during the FBI interview) she said that she had a negative impression of Mr. Carr and he lied but then gave incomplete answers to defense

11 counsel's attempt to follow up during cross examination. Third, as previously discussed, during the deposition of Mr. Carr there 12 13 are likely to be numerous areas of contradiction between Mr. Carr and Mrs. Gillaspie. 14 Neither witness will be present at trial, with means the defense will be saddled with 15 incomplete cross examination and no way to impeach either witness. The end result 16 will be an unfair and incomplete presentation of the facts of this case, inadequate 17 cross examination, and Ms. Wilcher's insufficient opportunity to fully confront the 18 witnesses and evidence against her. 19 20 21 22 23 24 25 27 28 -3Fourth, during the deposition the government raised 12 objections during 17 pages of Mrs. Gillaspie's cross examination. The videotape of that deposition shows the witness' nonverbal reactions to those objections, and shows how the objections in fact blocked defense counsel's ability to fully probe the witness' responses during direct examination. Although the Crawford objection as well as many of the problems that

26 arose during the deposition were addressed in Mr. Ryan's motion dated January 3,

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1 2005, undersigned counsel also renews those objections and re-urges this Court to 2 reconsider its ruling. 3 4 5 6 7 8 Respectfully submitted this 21st day of March, 2006. JON M. SANDS Federal Public Defender s/ Deborah L. Euler-Ajayi___________ DEBORAH EULER-AJAYI Assistant Federal Public Defender

Copy of the foregoing transmitted 9 by CM/ECF this 21st day of March, 2006, to: 10 11 CLERK'S OFFICE Court United States District 12 Sandra Day O'Connor Courthouse 401 W. Washington 13 Phoenix, Arizona 85003 14 JOHN LOPEZ Assistant U.S. Attorney 15 Two Renaissance Square 40 North Central Avenue, Suite 1200 16 Phoenix, Arizona 85004-4408 17 Copy mailed to: 18 JEANETTE WILCHER 19 Defendant 20 s/ Deborah L. Euler-Ajayi 21 22 23 24 25 26 27 28 -4-

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