Free Motion to Preserve - District Court of Colorado - Colorado

Case 1:00-cr-00310-WYD

Document 425

Filed 05/10/2007

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge Wiley Y. Daniel Criminal Action No. 00cr00310WYD UNITED STATES OF AMERICA, Plaintiff, v. RICARDO GONZALEZ, Defendant.

MOTION FOR PRESERVATION OF RECORDINGS AND NOTES

Ricardo Gonzalez moves for the entry of an order directing the Government to preserve for motions hearing and trial the following recordings and notes: 1. The originals of any and all handwritten or typed notes and/or

recordings made in connection with the investigation resulting in the charges in this case by any law enforcement officers involved in the investigation of this case regardless of whether or not those notes and/or recordings form the basis of subsequent typed reports. 2. The originals of any and all handwritten notes and/or recordings of

any interviews with persons who will or may be witnesses at trial taken by any law enforcement officers involved in the investigation of this case, regardless of whether or not those notes and/or recordings form the basis of subsequent typewritten reports.

Case 1:00-cr-00310-WYD

Document 425

Filed 05/10/2007

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3.

The originals of any and all handwritten or typed notes and/or

recordings made in connection with the investigation resulting in the charges in this case by any person who will or may be a witness at trial, regardless of whether or not those notes and/or recordings form the basis for subsequent typed reports. AS GROUNDS THEREFORE, Defendant states as follows: 4. The notes and/or recordings described above may prove to be

exculpatory within the meaning of Brady v. Maryland, 373 U.S. 83 (1963); Giglio v. United States, 405 U.S. 150 (1972); Kyles v.Whitley, 514 U.S. 419 (1995) and their progeny, requiring disclosure at a later date. Thus, preservation at this time is essential so the Government will be able to comply with any duty to disclose which arises at a later date. 5. The Government has an obligation to preserve all potentially

discoverable evidence gathered in the course of a criminal investigation. United States v. Pollack, 417 F.Supp. 1332 (D. Mass., 1976), citing United States v. Bryant, 493 F.2d 642 (D.C.Cir., 1975). Handwritten notes are encompassed by 18 U.S.C. §3500 as interpreted by United States v. Harrison, 524 F.2d 421 (D.C. Cir. 1975); United States v. Harris, 543 F.2d 1247 (3d Cir. 1977). Accordingly, handwritten notes of interviews with persons who will or may be witnesses and notes made by such persons, are a type of material evidence which the government must maintain. United States v. Pollack, supra; United States v. Harrison, supra; United States v. Johnson, 521 F.2d 1318 (9th Cir. 1976).

Case 1:00-cr-00310-WYD

Document 425

Filed 05/10/2007

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6.

The law recognizes no distinction between "exculpatory" material

and "impeachment" material. Kyles v.Whitley, 514 U.S. 419, 506 (1995). The prosecution is responsible for enacting procedures that ensure a flow of information between the investigating agencies and the prosecutor in regards to potentially discoverable material. Kyles v. Whitley, at 508. WHEREFORE, Mr. Gonzalez prays for the relief requested, and for such other and further relief as to the Court seems just and proper in the premises.

Respectfully submitted, s/ Mitchell Baker______ Mitchell Baker Attorney for Defendant Gonzalez 1543 Champa Street, Suite 400 Denver, CO 80202 (303)592-7353 [email protected]

Case 1:00-cr-00310-WYD

Document 425

Filed 05/10/2007

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CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 10th day of May, 2007, 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 address:

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Richard James Banta [email protected],[email protected] James R. Boma [email protected],[email protected],[email protected] ov J. Michael Dowling [email protected] Dennis W. Hartley [email protected] Neil E. MacFarlane [email protected] John F. Sullivan , III [email protected]