Free Reply to Response - District Court of Arizona - Arizona

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MATHEW & MATHEW, P.C. IVAN K. MATHEW (SBN: 011610) SUSAN T. MATHEW (SBN: 012916) 1850 N. Central Avenue, Suite 1910 Phoenix, Arizona 85004 Tel: (602) 254-8088 / Fax: (602) 254-2204 e-mail: [email protected] Attorneys for Defendant, RICHARD NAIL

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA UNITED STATES OF AMERICA, Plaintiff, vs. HARVEY L. SLONIKER, JR., TYE SLONIKER, KINDY JONAGAN, ROBERT SHINN, RICHARD NAIL, and JOHN DESIDERIO, Defendants.
CASE NO. 04-CR-820-PHX-FJM

REPLY TO MOTION TO EXTEND THE TIME FOR FILING PRETRIAL MOTIONS (Assigned to the Hon. Frederick J. Martone)

The government asserts that a pretrial extension is not necessary as the Defendant has already filed a motion to strike the government's experts. If the government is willing to concede that the motion to strike expert witnesses should be granted, then the motion to extend pleadings for this reason is not appropriate. However, to the extent the government still seeks to introduce expert testimony, such testimony would be subject to the safeguards of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) analysis. The

government failed to comply with even the most basic disclosure requirement. The expert testimony cannot be challenged as the disclosure was completely inadequate. The government contends that it complied with the Court's order regarding Brady material. This is disputed by the Defendants. When Brady materials are not produced in a timely manner, the lateness of the disclosure can prejudice a defendant from the preparation
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or presentation of his offense that he is prevented from receiving his constitutionally guaranteed trial. United States v. Shelton, 588 F.2d 1242, 1247 (9th Cir. 1978); quoting United States v. Miller, 529 F.2d 1125, 1128 (9th Cir. 1976) (Emphasis added.) Finally, the government states that 404(b) evidence does not require an extension of time. The government's own pleadings note the 404(b) acts or omissions have not been provided as the government would provide the "narrowed notice" on or before November 30, 2005. The government opines that the appropriate remedy is a motion in limine or an objection at trial (no authorities cited by the government). A spill over effect which precludes a defendant from receiving a fair trial is the proper subject of a motion to sever. A.R.Crim. P. 8. Moreover, an objection at trial would not unring the bell. Indeed, the Brady rule is so strong that the failure to disclose Brady material justifies a new trial regardless of whether that failure was "in good faith or bad faith." Kyles v. Whitley, 514 U.S. 419, 437, 115 S.Ct. 1555, 1567 (1995). Due to the potential prejudice of the 404(b) material, the government's desire to disclose the 404(b) material should be made before the severance hearing not afterwards. But to the extent the disclosure comes at the last minute, the Defendant should be able to correct this in order to preserve the constitutional right to a fair trial under the Fifth Amendment. All that is requested here is basic fairness. If materials come to light that should be brought to the Court's attention, the Defendants should not be precluded from bringing that to the Court's attention to address Defendants Constitutionally protected due process rights. Due process rights should not be put asunder because the government has not made timely disclosures. The government should not benefit from late disclosures. RESPECTFULLY SUBMITTED this 27th day of October, 2005. MATHEW & MATHEW, P.C By: _____s/Ivan K. Mathew_______ Ivan K. Mathew Attorneys for RICHARD NAIL

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CERTIFICATE OF SERVICE

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3 Case 2:04-cr-00820-FJM Document 176 Filed 10/27/2005 Page 3 of 3 United States of America v. Sloniker, et al. 04-CR-820-PHX-FJM I hereby certify that on October 27, 2005, I electronically transmitted the attached document 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:

Paul K. Charlton United States Attorney Rachel C. Hernandez Gary M. Restaino Assistant U.S. Attorney e-mails: [email protected];
[email protected] Attorneys for Plaintiff United States of America

Gregory T. Parzych Maricopa Legal Defenders Office e-mail: [email protected] Attorneys for Defendant Tye Sloniker

Thomas M. Hoidal Hoidal & Hannah, P.C. e-mail: [email protected] Attorneys for Defendant John Desiderio Jeanette E. Alvarado Asst. Federal Public Defender e-mail: [email protected] Attorneys for Defendant Robert Shinn

Michael J. Bresnahan e-mail: [email protected] Attorneys for Defendant Kindy Jonagan Bruce Blumberg Blumberg & Associates [email protected] Attorneys for Harvey Sloniker

s/Candace Deegan