Free Response - District Court of Colorado - Colorado

Case 1:00-cr-00481-WYD

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Filed 06/08/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Case No. 00-cr-00481-WYD UNITED STATES OF AMERICA, Plaintiff, v. ROD SCHULTZ, Defendant.

R S O S T G V R ME TSNOTICE OF DISCLOSURE and MOTION EP NE O O E N N ' FOR DISCOVERY

COMES NOW Rod Schultz and responds to the government's Notice of Disclosure, further moves for an order directing the government to provide additional discovery, and in support thereof states as follows: 1. Rod Schultz agrees with the prosecution, that the indictment charging Douglas Benn i f sy g xes acutcu "o n ay er pn h r a wt a i i epne con ol pt tl bauo t n h lf n s d e il e c d ito oe fh gvrm ns i ess; r i ly f n o t oe et wt s " e bi e n ' n e 2. Rod Schultz believes the government is being overly cautious in its use of the word pt tl " N t n a t atca e t l"i oetc m s "o n ay. o ol r h c hr d r y d hns r e e il y e e s g u s " i bearing directly on the credibility of a government witness and case agent, but it is noteworthy the expense accounts Special Agent Brennan is charged with falsifying were for the months of April, May and June, 2003, the very months encompassing the trial in this matter. f r nns lgd i oeti IBe a'aee d hns s n l s y

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claimed to be aberrant behavior it should be noted that behavior coincided wtt p nc o t gvrm n s rsct n f r i h i al fh oe et poeu o e ot h e n e e n ' i f s; 3. The defense notes the government tries to distance itself from Special Agent Benn cn i t n b s t g w i nm nl a ae gn [Brennan] r a' otb i s y ti " h e o i l cs aet n s r uo an l ay , was a minor witness at trial whose testimony pertained to an acquitted count of the Inim n "T e record reveals a far different mindset in the d t et h c . prosecution team at trial. On April 7, 2003, at the beginning of the trial, the poeu o t ms t :T case is multiple count. It involves 55 overt rsct ne te " his i a ad acts, spanning hundreds of acts of abuse, and we have had two agents working to assist government prosecutors since [sic] years on this case. Mr. Brennan is equally essential to Mr. Karr. They have split investigative responsibilities, they have split trial preparation responsibilities, and I would ask that the Court designate both to be essential wt s so s st gvrm n a r u e. i es t as t e oe etse i d n e i h n qr " (April 7, 2003 Trl.Tr., 49) (emphasis added); 4. The defense objected to Special Agent Brennan being granted essential witness status. The court overruled the objection stating: "d ar . acp I i ge Icet s e Mr. Bloomberg's word that Mr. Brennan has been intimately involved in the preparation of witnesses, interviewing of witnesses and the preparation of the government case, so I will allow Mr. Karr and Mr. Brennan to be advisory witnesses...(April 7, 2003 Trl.Tr., 50) (emphasis added); " 5. While the government argues Brennan was only involved in one of the charges that resulted in an acquittal such attempt to lessen his impact is dispelled by the above colloquy. B cue f r nnso Rod Schultz eas o Be a'rl n e

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requests an order directing the government to produce what it designates as " r nnsnet av fe. h r usibsd o olo the above Be a'i sgt e i" T i e ets ae nt n n n v i i l s q y discussion but also on a history of visibly improper behavior by the prosecution team, including: (A) Attempt to suborn false evidence (1) The prosecution team subpoenaed Frank Quereau to Denver to testify in front of grand jury. Instead of testifying he was interrogated by the lead prosecutor and an FBI agent. Quereau was told that if he did not change his responses he w u b ca e wt pr r ad f e p o 0 eri pi n n t t y ol e hr d i e uy n " c u t 1 ya n ro adh m d g h j a s s a wfw u l v m ad 'nvre my i aa .(et br 520 i ol e e e n I eese k s gi"Sp m e 2,01 e d a d d n e Tr., 148). (2) Officer Dwight Porter was called to testify before the grand jury. He did not testify. Instead, the lead prosecutor and two FBI agents interrogated him. They accused Porter of lying and threatened the officer with three to five years in prison, and that Porter would not see his family again if he did not cooperate (May 21, 2002 Tr., 142-143). (3) Sergeant David Dance, a law enforcement officer in the United States Air Force, testified he was present when the lead prosecutor and an FBI agent accused defendant James Bond of lying in a memo, referred to Schultz and L vle s k l s,n t et ed Bond with loss of his children and his aae a "ie "ad h a n l lr r e livelihood if he did not cooperate (May 21, 2002 Tr., 181-182). (4) O f e Jm s odeti t l d rsct dsr e B n'm m a a fcra e B n t ie h e poeu r ec bd ods e o s i sf d e a o i "e,n t th poeu rhet e t"rs m wth the unlimited l"adh t rsct t a ndo c h e i i a e o r e u

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resources available to him, I would spend a long time in jail, and my kids will go u i fs r o e.( y 120 Tr., 294). rw p n ot hm s Ma 2,02 e " (5) Lieutenant Lorna King testified the prosecution threatened that if she did not change her testimony before the grand jury they would put her in jail. During her testimony the prosecutor would move his eyes to suggest to the grand jury that she was lying. (May 21, 2002 Tr., 306-329). (6) Physician Assistant Celestino Garcia testified the lead prosecutor questioned his responses and verbally wondered how Garcia's children would feel it he was put in jail (May 22, 2002 Tr., 392-396). All of the above witnesses maintained they were telling the truth, and refused to change their statements as sought by the law enforcement authorities. (B) Retaliatory prosecution sans credible evidence Officer Brent Gall was one of the seven named defendants. He and one other officer, Ken Shatto, were charged with assaulting inmate Felton Wiggins. In the original indictment it was claimed the alleged assault occurred on March 21, 1996. In the superseding indictment the date of the alleged assault was changed to December 2, 1995. The penitentiary maintained a typewritten Daily Roster, listing the names of each person on-duty during each shift of each day. There was also a SHU Logbook in which the names of the officers were handwritten as they appeared for work during each shift. Officer Gall name did not appear on either ' s the Daily Roster or the SHU Logbook for either of the dates in question ( May 27, 2003 Tr., 6069-6067). Before Gall was charged he had been questioned by two of the prosecutors and an FBI agent. When they were dissatisf d i G ls i wt a' e h l

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answers they threatened to put him in jail and wondered what would happen to his family. Gall then filed a complaint with United States Attorney General Janet Reno concerning the conduct of the prosecutors (May 23, 2002 Tr., 663-669). Although the government simply did not have any credible evidence that Gall was present during the alleged assault of Felton Wiggins he was charged with that act. Gall and Shatto were both acquitted at trial (June 24, 2003 Tr., 7292). (B) Failure to preserve evidence Inmate Pedro Castillo'bhv rhte t h bi fr b r oe f m s eai t l o i e g oc l e vd r o a d m n iy m o his cell on April 5, 1996 was recorded on a videotape. Despite repeated requests by the defense for production of the videotape the prosecution contended it did not exist, and claimed the defendants had destroyed the tape. The defense contends such videotape would have clearly rebutted both the prosecution's claim that the defendants had destroyed the videotape, and its claim that there was no legitimate reason to remove Castillo from his cell. After trial a member of the prosecution team disclosed and admitted in an affidavit that the video tape had been destroyed by the government. (C) Prosecution team misled the court, defense and jury about destruction of the Castillo videotape Although early in the pre-trial proceedings the court had expressly ordered the government to preserve all videotapes of incidents-of-force in the Special Housing Unit during the alleged conspiracy (July 11, 2001 Tr., 129-135), the government never produced the April 5, 1996 video tape showing the behavior of Pedro Castillo immediately before the officers removed him from his cell. On

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December 17, 2002 the prosecutors claimed the defendants had destroyed the v et e s a o t i"l " make sure it did not exist (December 17, 2002 i o p a pr fh r p n to d a t e a Tr., 1194-1197). During trial the prosecution presented evidence suggesting the defendants fabricated a reason for removing Castillo from his cell for the sole purpose of beating him, and that it was not necessary to remove the inmate (April 8, 2003 Tr., 1395-1401; April 18, 2003 Tr., 1877; and April 21, 2003 Tr., 20042006). The prosecution team even called a clerk from the penitentiary to testify about the records concerning preservation of videotapes of incidents-of-force for the purpose of suggesting a videotape of the Castillo incident had not been produced (April 29, 2003 Tr., 3350-3358). In closing argument the prosecution a ud h r e ne t C sl ctn h slfr " s" n " e e oao r e t e r cso atl u i i e o a r e ad t r vlf g e fe io t g m f u h m t v e cm rw sae ( n 9, 2003 Tr., 6441). After trial, during motion h i o a e a f "J e e d a k u for new trial proceedings, a member of the prosecution team and a staff member at the Federal Correctional Complex, Florence, Colorado, both submitted affidavits indicating they had learned during the investigation stage that the April 5, 1996 Castillo videotape had been destroyed by the internal investigation unit in the penitentiary. In short, the prosecution team knew long before trial that the videotape had been destroyed by the government, and not by the defendants as it continued to allege during the pretrial and trial proceedings. (D) Selective failure to conduct proper investigation R d cu zwas convicted of assaulting inmate Pedro Castillo. During the o Shl' t investigation Castillo told FBI agents that all members of the group of officers who had removed him from his cell on April 5, 1996 had taken part in assaulting

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him. Castillo did not specifically name Rod Schultz, however, Schultz was admittedly a member of the group that had moved the inmate. The government did not call Pedro Castillo as a witness at trial. Castillo testified during the motion for new trial hearing that he had invited the FBI agents to show him photographs of the officers on duty for the purpose of positive identification. Although photographs of all such officers were readily available in the prison files, the prosecution team chose not to show any photographs to inmate Castillo. When Castillo was contacted by a private investigator representing Rod Schultz several months after the trial he was shown a photograph of Schultz for the first time. The former inmate immediately recognized Schultz and stated that officer had never beaten him and had always treated him well. By not showing Castillo a photograph of Rod Schultz during the investigation the prosecution team clearly violated its own policies and procedures as set for in the FBI publications entitled Manual of Investigative Operations and Guidelines and Legal Handbook for Special Agents. Those publications expressly require identification of suspecttb "rs ll r t b "orbr e" hnvr so e c t c a , e cr oa d w eee ya e " o o t ps b ,n t tt rin m ri o e o ao e fr os l ad h " e s o a n fr rl w d o incorrect ie a he g r l i n f ao. N using such obvious and available photograph identification d ti t n ot e ic i " technique suggests the government deliberately refrained from attempting to corroborate the identification of Rod Schultz, because further investigation might effectively rebut its decision to charge Schultz. 6. The defense submits the above discussion clearly justifies disclosure of Benns investigative file. Suspicion of improper conduct by Special Agent r a' n

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Brennan is further supported by the Special Agent being with primary government witness Dave Armstrong as that witness received medical attention the day before he testified (May 6, 2003 Trl.Tr., 3904). In spite of the fact Armstrong had been interviewed by the prosecution team on multiple occasions, as well as being deposed for several hours, and the investigation had been ongoing for some six years before trial, Armstrong first suggested at trial, just a day after contact with Special Agent Brennan, that Rod Schultz was also involved in the alleged beating of Felton Wiggins as well as the two officers charged, Brent Gall and Ken Shatto; 7. The defense submits the tactics of the government were most questionable and support disclosure of Benns r a'investigative file. Schultz submits the file n should reveal t et tf r nns h x no Be a'involvement in this case and could well e e n lead to exculpatory evidence. WHEREFORE, for the above reasons Rod Schultz responds to the government's notice of disclosure, and moves for production and disclosure of Special Agent Brennan's investigative file. Respectively submitted,

s/ Neil MacFarlane_______________________ Neil MacFarlane 9975 Wadsworth Pkwy, K2-433 Westminster, CO. 80021 I hereby certify that on June 8, 2006 I electronically filed the foregoing with the clerk of court using the CM/ECF system which will send notification of such filing to the following e-mail addresses:

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Robert Mydans [email protected]

s/ Neil MacFarlane_______________________

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