Free Response to Motion - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona RACHEL C. HERNANDEZ Arizona State Bar No. 016543 GARY M. RESTAINO Arizona State Bar No. 017450 Assistant U.S. Attorneys Two Renaissance Square 40 N. Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Telephone (602) 514-7500 [email protected] [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America, Plaintiff, v. Richard Nail, Defendant. UNITED STATES' RESPONSE TO DEFENDANT NAIL'S MOTION TO EXTEND THE TIME FOR FILING PRETRIAL MOTIONS CR04-0820-005-PHX-FJM

The United States, through counsel undersigned, responds in opposition to defendant Nail's 17 motion to extend yet further the pretrial motions deadline. Defendant had approximately ten 18 months from the unsealing of the indictment to review materials prior to the original motions 19 deadline. The original motions deadline of September 1, 2005 was extended without opposition 20 from the government to October 1, 2005. On September 30, 2005, defendant Nail sought an 21 additional extension on three putative bases: first, that the government failed to produce expert 22 witness disclosures in the appropriate manner; second, that the government failed to produce 23 non-existent Brady material; and third, that "on September 30, 2005, the Government informed 24 defense counsel that they were in the process of alleging other bad acts under Rule 404(b)". 25 Defendant has already had eleven months to make pretrial motions, and, as set forth below, none 26 of his putative bases provide reasonable grounds for a second extension to the deadline. 27 28

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As his first putative basis, defendant repeats his assertion that experts were not properly

2 disclosed. Defendant has already filed a motion to strike the government's experts. Defendant 3 has no need to extend the pretrial motions deadline on his expert claims because he has already 4 made a pretrial motion. 5 As his second putative basis, defendant references the provision by the government of

6 "approximately 20 pieces of paper" on September 30, 2005 to comply with the October 1 general 7 Brady disclosure deadline. The compliance by the government with the Court's order would not 8 appear to be a basis to extend the pretrial motions deadline, and defendant has cited to no 9 authority for this proposition. 10 As his third putative basis, defendant claims that "recent" notice of intent to use 404(b)

11 evidence requires an extension of time. The government noticed defendant of its intent to use 12 404(b) evidence with the initial disclosures of evidence in November 2004. (See discovery 13 letter, attached as Exhibit A, at 3.) On September 30, 2005, the government informed defense 14 counsel that it would endeavor to give additional guidance of 404(b) acts and omissions (that is, 15 to narrow the notice) in November 2005. The government still intends to provide that narrowed 16 notice on or before November 30, 2005. To the extent that defendant has a legitimate basis to 17 contest the introduction of any such evidence after a narrowed notice, his remedy is a motion in 18 limine and/or an objection at trial. The government opposes an extension on this basis. 19 20 21 22 23 24 25 26 27 28
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For the foregoing reasons, the Court should deny defendant's motion. Respectfully submitted this 17th day of October, 2005. PAUL K. CHARLTON United States Attorney District of Arizona s/ Gary M. Restaino RACHEL C. HERNANDEZ GARY M. RESTAINO Assistant U.S. Attorney

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1 CERTIFICATE OF SERVICE 2 I hereby certify that on this date, I electronically transmitted the attached document to the 3 Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Bruce Blumberg, Jeanette Alvarado, Ivan Mathew, 4 Tom Hoidal, Greg Parzych and Michael Bresnehan. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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