Free Response to Motion - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 Plaintiff, 12 vs. 13 Dragan Ubiparipovic, 14 Defendant. 15 16 17 18 19 20 21 22 23 24 s/ Dana Carpenter Defendant, Dragan Ubiparipovic, by and through his counsel, Dana Carpenter, hereby submits the attached Memorandum in response to the government's motion for a protective order. It is expected that excludable delay under Title 18 U.S.C. § 3161(h)(1)(F) may occur as a result of this motion or from an order based thereon. RESPECTFULLY SUBMITTED this 15 th day of May, 2006. RESPONSE TO GOVERNMENT'S MOTION FOR A PROTECTIVE ORDER DANA CARPENTER Attorney at Law 3106 N. 16th Street Phoenix, AZ 85016 (602) 266-5770 phone (602) 277-1636 fax [email protected] State Bar No. 007320

Attorney for Defendant
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA CR04-1142-PHX-DGC United States of America,

25 DANA CARPENTER 26 Attorney for Defendant 27 28

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM The government has moved for a protective order claiming that the Office of the Prosecutor ("OTP") of the International Criminal Tribunal ("ICTY") has requested that it obtain such an order in order to disclose documentary evidence which has not yet been received by the United States Attorney's Office. The government makes vague assertions that the material "encompasses various military documents concerning the Army of the Republika Srpska pertaining to the conflict in Bosnia from 1992 to 1995." Apparently, the Government's expert witness is presently in The Hague attempting to review this material on behalf of the OTP. The Government claims that the protective order is intended to protect ongoing cases pending at the ICTY and not to interfere with the defendant's ability to prepare and present a defense. However, the actual protective order provided with the motion would clearly interfere with the defendant's ability to share information with other defense counsel involved in similar cases. Defense counsel in this case has already come across material previously disclosed without any request for a protective order that actually relates to other defendants in the case. It would unduly hamper defense counsel's preparation of the case to restrict disclosure to other counsel handling similar cases in this district who may have knowledge of facts that would make the information more meaningful to undersigned counsel. If the government wishes to restrict disclosure to defense counsel at the ICTY, that may present a different question on whether it is necessary to allow such disclosure. Moreover, the provisions in paragraph 3 of the protective order which call for a detailed record of all persons who receive disclosure or documents covered by the order is unduly burdensome and invades the province of attorney-client privilege and work product. It would require defense counsel to make records of every time there was disclosure of material to the defendant, his family or other persons who may be participating in the defense of the case. The protective order should be limited to disclosure to the "public" or "media" and not to persons associated with the defense of a case. Finally, the provisions of paragraph 4 of the protective order would completely eviscerate the defendant's ability to appeal by requiring return to the government of all disclosed material and copies thereof at the conclusion of the case. While the government recognizes that exhibits admitted at trial would be available to the public, this does not take into account those exhibits that the defendant may offer at trial which are not admitted and which form the basis of an appeal. By requiring return of these materials the government is essentially making it impossible for the defendant to raise such issues on appeal. Further, witnesses who may be disclosed whom the defendant seeks to call or depose, would apparently be stricken as a result of the return of all disclosed material.

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 s/Dana Carpenter DANA CARPENTER 18Attorney for Defendant 19 20 21 22 23 24 25 26 27 28 It clearly appears that this request for a protective order is premature until the government can provide a better description of the materials which it will obtain from the OTP through its expert witness Richard Butler. Clearly, if Mr. Butler is going to testify to opinions based upon the materials which he is now reviewing, he may be required to disclose those materials without subjecting the defendants to any restrictions of a protective order. See Rule 705, F.R.E. (expert may be required to disclose the underlying facts and data on cross-examination) Until the government can identify what exactly the materials are that it seeks to protect from disclosure pursuant to the motion, it is premature to give them a blanket order that clearly interferes with the defendants ability to prepare the case and raise issues on appeal. Therefore, the defendant opposes entry of the protective order at this time subject to re-urging by the government once the materials are received. RESPECTFULLY SUBMITTED this 15 th day of May, 2006.

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I hereby certify that on May 15 th, 2006, I caused the attached document to be electronically transmitted to the Clerk's Office using the CM/ECF system for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants:

Andrew Pacheco Assistant U.S. Attorney

Chris Brelje Immigration Attorney

By:

s/Enereida Carranza

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