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. Attorney 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. Harvey L. Sloniker, Jr., Kindy Jonagan, Robert Shinn, and Richard Nail, Defendants. The United States, through counsel undersigned, responds to defendants' Motions for UNITED STATES' RESPONSE TO DEFENDANTS' MOTIONS FOR REVIEW OF AGENT PERSONNEL FILES CR04-0820-PHX-FJM

17 Review of Agent Personnel Files and Supplemental Motions for Review of Agents Halferty and 18 Kallas Personnel Files. (Dkt. ## 127, 131, 141 and 148.) For the reasons set forth below, and 19 as previously articulated in the government's response to defendant Desiderio (Dkt. # 108), the 20 Court should deny defendants' motions as moot. 21 The United States has already requested that the federal agencies that employ potential 22 federal trial witnesses review the personnel files of the potential witnesses for possible 23 impeachment information, and will evaluate any responsive information it receives pursuant to 24 United States v. Henthorn, 931 F.2d 29 (9th Cir. 1991). Accordingly, this Court should deny 25 defendants' motion as moot. 26 In Henthorn the defendant sought production of personnel files of testifying agents in the 27 district court. On review, the Court of Appeals did not require outright production, but rather 28

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1 ordered the government to submit the files to the Court in camera. Id. at 31. Cases decided 2 subsequent to Henthorn have approved a process of delegated review, where an agency reviews 3 the personnel files upon the request of the prosecutor, and provides any potential impeachment 4 material to the prosecutor. E.g. United States v. Jennings, 960 F.2d 1488, 1491-92 (9th Cir. 5 1992).1 The prosecutor is expected to evaluate any information received and, if the prosecutor 6 determines that it potentially relates to credibility or is otherwise potentially material to the 7 defense, either produce the information or submit it for an in camera review. Id. at 1492; see 8 also Henthorn, 931 F.2d at 30-31. Undersigned counsel has requested the review of personnel 9 files of anticipated federal agent witnesses in this case, and will evaluate any information 10 received consistent with its obligations under Henthorn. 11 Defendants Nail and Shinn argue in their supplemental motions for review of the personnel

12 files of Agents Halferty and Kallas, that there is an urgent need to review those files as those two 13 agents are listed as potential expert witnesses. As discussed above, defendants' motion is moot. 14 The government will produce, or submit for an in camera review, any impeachment or otherwise 15 material information received regarding Agents Halferty and Kallas as required pursuant to 16 Henthorn. To date, no such information has been received. 17 For the foregoing reasons, the government requests that the Court deny defendants'

18 motions as moot. 19 20 21 22 23 24 25 The Henthorn obligation only extends to federal agents in most circumstances, with exceptions (such as participation on an official task force) not applicable here. E.g. United 26 States v. Santiago, 46 F.3d 885, 895 (9th Cir. 1995) (restating the Henthorn obligation as a duty "to inspect for material information the personnel records of federal law enforcement officers 27 anticipated to testify at trial"). 28
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Respectfully submitted this 14th day of October, 2005. PAUL K. CHARLTON United States Attorney District of Arizona s/ Rachel C. Hernandez RACHEL C. HERNANDEZ GARY M. RESTAINO Assistant U.S. Attorney CERTIFICATE OF SERVICE

I hereby certify that on this date, 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 9 Filing to the following CM/ECF registrants: Bruce Blumberg, Jeanette Alvarado, Ivan Mathew, Tom Hoidal, Greg Parzych and Michael Bresnehan. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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