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' MOTION FOR DISCLOSURE OF BRADY MATERIAL CR04-0820-PHX-FJM

17 Disclosure of Brady Material. (Dkt. ## 126, 132, 138 and 150.) For the reasons set forth below, 18 and as previously articulated in the government's response to defendant Desiderio (dkt. # 115), 19 the Court should deny defendant's motion as untimely. 20 A. 21 This case involves a large telemarketing scheme, mail and wire fraud and money laundering 22 charges arising out of the scheme, loan fraud charges based on the overstatement of income from 23 the scheme and the failure to pay over withholding taxes on behalf of telemarketing sales 24 representatives who worked for the scheme. 25 Defendants have received extensive early discovery in this case. On November 8, 2004, 26 the government produced to each defense counsel 218 pages of reports of interviews, to include 27 statements of defendants as well as statements of former employees and associates of defendants, 28 Background

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1 and another 238 pages of written complaints by victims to public agencies. On November 18, 2 2004, the government produced to each defense counsel two logs of evidence catalogued in this 3 case.1 The government also produced in November 2004 one set of the compact disks identified 4 in the logs to Michael Bresnehan, counsel for Kindy Jonagan, who volunteered to take the disks 5 first on behalf of the group of defendants. The disks contain .tif images of the evidence 6 described on the logs, and the logs identify additional evidence that was not reproduced in 7 electronic form but remains available for inspection. (See generally Gov. Mot. for Complex 8 Case Status Hearing, dkt. # 70.) 9 At the complex case status hearing, the Court set a timeframe for the disclosure of

10 exculpatory and impeachment material as articulated in Brady v. Maryland, 373 U.S. 83 (1963) 11 and its progeny. (Minute Entry of May 2, 2005, dkt. # 74.) In particular, the government must 12 disclose general Brady material on or before October 1, 2005; and Brady impeachment material 13 related to employee witnesses on or before December 6, 2005.2 14 Since the provision of extensive early discovery, the government also provided over 200

15 duplicate hard copies of key documents scanned on the disks related to the charges against 16 defendant Desiderio (at the complex case status hearing) in addition to a summary of proposed 17 expert testimony and hard copies of the search and seizure warrants and supporting documents 18 relevant to this case (on or about August 1, 2005). The government also disclosed potential 19 (albeit unlikely) Brady impeachment material as to the chain of custody of the search warrant 20 documents on October 1, 2005, pursuant to the Scheduling Order. The government has timely 21 complied with its discovery obligations set forth by statute, rule and Court order. 22
1 The first log is organized by the location of where the evidence was found. The second 23 log is organized by compact disk number. Each log can be cross-referenced to the other, and contains a general description of the evidence. 24 2 Although not explicitly set forth in the Minute Entry, the government anticipates: 1) 25 that it will disclose any disclosable Henthorn material as to potential federal agent witnesses about which it has knowledge on or before October 1, 2005, with a continuing duty to disclose 26 if additional disclosable material becomes known after that time; and 2) that it will disclose any Brady impeachment material as to victim witnesses on or before December 6, 2005, 27 contemporaneous with the disclosure of the victim witnesses themselves.

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At the close of the motions deadline, and with but nominal consultation with the

2 government or any prior articulation as to their dissatisfaction with the discovery process, 3 defense counsel filed motions incorporating most of defendant Desiderio's lengthy boilerplate 4 recitation of alleged deficiencies in the discovery process. Some of the requests are irrelevant 5 to this matter. None of the requested information is overdue. 6 B. 7 Discussion The government agrees with defendant that it must disclose Brady impeachment material

8 (and exculpatory material, if any), and the government has acknowledged its obligations with 9 respect to this information. No case requires the disclosure of Brady impeachment material prior 10 to the start of the trial. The government must only make the disclosure at a time when it is of 11 value to the defendant. E.g. United States v. Aichele, 941 F.2d 761, 764 (9th Cir. 1991) 12 (evidence turned over shortly before trial); United States v. Gordon, 844 F.2d 1397, 1403 (9th 13 Cir. 1988) (evidence turned over during the trial). The Court's scheduling order in this case 14 provides significant and sufficient review time to defendant. 15 The Court's scheduling order is consistent with the Rules of Criminal Procedure. No rule

16 requires disclosure of witnesses in non-capital cases in advance of trial, and witness statements 17 are similarly protected until the testimony of the witness. E.g. Fed. R. Crim. P. 16(a)(2) and 18 (b)(2). The government urges the Court to defer to its own scheduling order. 19 C. 20 Conclusion The Court has established a schedule for the disclosure of Brady material, and the

21 government has complied with all dates. Accordingly, the Court should deny the motion as 22 moot. 23 24 25 26 27 28
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Respectfully submitted this 14th 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

CERTIFICATE OF SERVICE 10 I hereby certify that on this date, I electronically transmitted the attached document to the 11 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, 12 Tom Hoidal, Greg Parzych and Michael Bresnehan. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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