Free Motion to Dismiss Counts (Less Than All) - District Court of Arizona - Arizona

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Barbara Hull, State Bar No. 011890 86 West University Drive, Suite 101A Mesa, Arizona 85201 Telephone: (480)834-0002 Facsimile: (480)834-0003 Attorney for Defendant
IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

UNITED STATES OF AMERICA, Plaintiff, vs. ROBERT MCKAY, Defendant.

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Case No.: CR-03-1167-16-PHX-DGC DEFENDANT'S MEMORANDUM REGARDING LAUGHLIN VIDEO EVIDENCE; MOTION TO DISMISS

(Assigned to The Honorable David G. Campbell) EVIDENTIARY HEARING AND ORAL ARGUMENT REQUESTED

Defendants, through undersigned counsel, hereby submits the following memorandum in response to this Court's Order dated December 21, 2005 regarding video evidence reference what has been characterized as the Laughlin Incident. This Memorandum is intended to outline what evidence the defense has been able to discover, through its own investigation, is lacking from the disclosure provided by the Government. The Defendants reiterate at numerous pending motions (Dkt. #s 836, 901, 931, 944, 946, 966) and request reconsideration of Smith's motion to dismiss (Dkt. #705), all of which address the Government's failures to abide this Court's Orders and the Rules of Criminal Procedure reference disclosure. The Defendants also assert their Sixth Amendment and due process rights by objecting to any abrogation of their rights to continuing objections and formal motions in this case -- particularly when the Government has not been held

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to answer for its disclosure failures and has been not-so-tacitly permitted to continue its methods of actively concealing information to which the defense is expressly entitled. This Memorandum includes many references to the testimony and evidence presented in other proceedings by Sergeant Causey of the Las Vegas Municipal Police Department (LVPD). Sgt. Causey was not certified in the Cognitech system (utilized by the LVPD to excise from, duplicate and digitize the original analog videotapes) until November of 2002 after completion of the composites presented to the grand jury. (Exhibit One1, page 37, lines 7-23.) The Defendants take this opportunity to formally object to any trial testimony of Sgt. Causey, including, but not limited to, any presentation of composite DVDs, any video evidence utilizing "green arrows" directing attention to individuals or objects, any video evidence containing adjustments to the number of frames per minute, and any additions, deletions or any other alterations to the original videotapes by any law enforcement member or representative. Defendants liken Sgt. Causey's participation to a grade schooler assigned a collage -- he took existing evidence and manipulated it into a new, altered representation that conformed to his agenda and direction. This is not evidence. This is testimony. Defendants also formally demand the names, addresses, phone numbers and qualifications of those individuals at the Tourist Safety Unit Sgt. Causey named as doing his bidding in distorting those tapes. (See Exhibit One, page 37, lines 7-16.) Defendants point out that the Government has never attempted to secure the original tapes from Harrah's. The same obligation under Rule 16(a)(1(E) exists for the Government to determine if those tapes contain material evidence. In fact, as
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Exhibits to this pleading are being filed under separate cover.

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more fully set forth in the Tracey Crow testimony referenced herein, the Government engaged in what can be characterized only as either monumental investigation failures or intentional destruction of evidence by allowing Harrah's to maintain control of the original videotapes and to turn them over at Harrah's will. Tapes from the April 2002 incident were still being supplied by Harrah's in February 2004 and as late as May 2005. (Exhibit Eight below.) No chain of custody has been established during Harrah's possession of the tapes. 2 Further, no authentication of those tapes can be established. Finally, Defendants do not waive any motions to dismiss this case and/or to dismiss all charges arising from the Laughlin Incident, on disclosure or any other grounds, either filed or forthcoming, nor any other motion regarding foundation and admissibility, including so much as the existence of the Hells Angels, the enterprise. This Memorandum is simply intended to respond to the Court's Order and is based upon what information the defense has been able to uncover despite the Government's failures to comply with rule mandates, defense discovery demands and Court Orders for government disclosure. If this Court refuses to impose the appropriate and warranted sanction of immediate dismissal, Defendants again request that the Government be ordered to disclose what video evidence it intends to utilize at trial. I. BACKGROUND OF DISCOVERY The defense has addressed its discovery demands in open court and pleadings numerous times. This Court denied Smith's motion to dismiss (Dkt. #705), finding the Government's failures "not sufficiently flagrant" to warrant

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Defendants note that Exhibit 43 to Causey's grand jury testimony is a hand -written index from Harrah's (3/18/04 Causey Trans., p. 32.), but no such index has ever been provided to the defense despite coverage in the matrix in this case. Defendants demand this disclosure. -3-

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dismissal and that, since the Government had agreed at the July 8, 2005 status conference to disclose the tapes, the Defendants would have "sufficient opportunity to review and analyze the videotapes before trial begins in February 2006." The Court ordered the Government to produce the 51 tapes by August 12, 2005 (see July 11, 2005 Order, page 8, lines 15-17) and at the October 21, 2005 status conference again ordered full Government disclosure by November 4, 2005. All deadlines have passed without full disclosure. In fact, the 51 tapes addressed in July were not disclosed until December 7, 2005, again depriving the defense of an additional five months of review and preparation without any sanction being imposed upon the Government. Attached as Exhibit Four is the letter provided to the Government on October 27, 2005 which outlines some of the specific problems with the video evidence provided to the defense. On December 7, 2005, undersigned, along with Charles Whiteman, met with Timothy Duax as part of the defense's continuing attempts to secure full disclosure and to press the Government to abide this Court's orders. At that meeting, Mr. Duax provided undersigned with what is attached as Exhibit Five. This document lists what Mr. Duax provided the defense at that meeting. Mr. Duax stated at that meeting that he had traveled to Las Vegas and had spoken with Mr. Tipton of All Around Video, the repository for videos on the Nevada case. Mr. Duax stated he instructed Mr. Tipton to secure the original subject 51 tapes (Items number 449 to 499) out of impound at the Las Vegas Police Department and make a full copy of those and provide a full set. Mr. Duax stated the tapes provided that date were a full new set. On December 7, 2005, Mr. Duax dropped off 38 additional tapes at APEX for copying. That copying is not yet complete. Review of those tapes, therefore, is
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likewise incomplete.

The defense has had an opportunity to conduct only a

preliminary review the set of 51 tapes. That limited review reveals that those 51 tapes appear to be complete. However, item #429 evidenced as impounded is still missing. Also still missing is video from cameras 21 and 22 addressed more fully below, video from VCR 42 showing traffic in and around the surveillance room before and after the incident, and item #426, a quad tape from the Flamingo. Through investigation, the defense has recently learned that there also exists tape numbers 431, 432, 433, 434 and 435, also never disclosed, disclosure of which is hereby demanded. The set of 51 tapes, while apparently complete, still retain the ongoing quality issues, namely horizontal noise lines, blurred and jittery images, all evidencing wear, also discussed more fully below. Videos reviewed by the defense include one from a camera that monitors the exterior of the Harrah's surveillance room, namely VCR 42 listed above. The video provided the defense from VCR 42 is only from after the Harrah's incident. This video depicts law enforcement officials accompanying two individuals in Mongol attire and thereby gaining access past Harrah's security personnel. Also, video from outside Harrah's after the incident depicts the Pres ident of the Mongols, Pinney -- at a time when all involved Hells Angels have been secured by law enforcement inside the casino -- being personally attended by Harrah's security. A Ramada Express cab is depicted being driven by an individual identified as being within the casino at the time of the incident. This individual exited the station wagon, physically assisted the Mongols president into the front seat of the wagon, and drove away from the casino. The driver is a member of law enforcement. Defendants demand disclosure of the identity of that individual. No Hells Angels are ever depicted as being assisted by either casino security or law enforcement either before or after any of the incidents.
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II.

QUALITY OF VIDEOS

The defense has made numerous requests regarding the quality of the video evidence provided. At the January 21, 2005 status conference, Mr. Kemp was ordered to provide better quality copies of the 38 videotapes from the Harrah's and Golden Nugget incidents by February 18, 2005. Better quality videos have not been provided and it is still unknown which generation that the defense received.3 The defense, upon consulting with video experts, has learned that the standard within the expert community is that any video evidence beyond the first or second generation4 is not of sufficient quality for either review or opinion, nor is it of sufficient quality for identification of events, individuals or physical materials, such as weapons or other tangible objects. Sgt. Causey has testified, as more fully set forth below, that videotapes of the analog type involved here degrade upon each use, including review and/or duplication. (Exhibit One, page 35, lines 1622.) Sgt. Causey claims to have himself reviewed the tapes "seven thousand times." (Exhibit One, page 49, line 7.) One can reasonably deduce, therefore, that the copies provided the defense are of a generation numbered in the thousands. This might explain the poor quality. II. CHAIN OF CUSTODY At the December 21, 2005 status conference, the parties discussed what the defense has characterized as the "chain of custody" evidence the Government purports is sufficient. Mr. Duax queried in open court why the defense would characterize the documentation as such.

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From Sgt. Causey's de scription of his review of the videos, he has taken the "original" videos on many different occasions to view them at Harrah's or other locations such as the Tourist Safety Unit. It is unclear how many times he did this throughout this investigation. 4 The term "generation" describes the number of times a copy is removed/duplicated from the original. -6-

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Attached hereto as Exhibit Six is the documentary evidence Mr. Duax provided to undersigned on December 7, 2005 in response to the defense request for chain of custody evidence regarding the videotapes provided. It might not escape the Court's notice that the documents themselves are ent itled "Chain of Custody." The Court might also note that each individual document concerns an individual item or tape number and that only 20 of the 348 tapes are accounted for here. The Court also should note that Exhibit Seven attached is an excerpt from an impound log indicating that the videotapes from Harrah's were impounded by the Las Vegas Police Department on April 27, 2002, and that the videotapes from Golden Nugget were impounded on April 28, 2002. The defendants ask the Court to compare this impound evidence to the Chain of Custody documents. The Court will note that the earliest Chain of Custody document does not commence chain of custody documentation until May 16, 2002. Tracy Crow, a Harrah's employee testified before the Nevada State Gra nd Jury on March 25, 2004 as to chain of custody. While she stated that some tapes were turned over to the LVPD over a period of time and during a number of occasions after the incident, she testified that she had turned over additional tapes in February, 2004 almost two years after the incident. (Crow Transcript, pps. 62, 69, relevant excerpts attached as Exhibit Eight.) Ms. Crow also testified that

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there was a difference in the tapes turned over to the LVPD. (Exhibit Eight, p. 67, lines 11-18.) Sgt. Causey of the Las Vegas Municipal Police Department (LVPD) testified March 18, March 25 and April 8, 2004 before the Nevada State Grand Jury (cited portions of which are attached as Exhibits One, Two and Three, respectively.) Part of his testimony addressed the number of cameras in the casino and the number of core videos for this incident (which varies from 6 to 20 core videos) and the chain of custody, which is murky at best (Exhibit One, page 20, lines 17-18 reference "twenty" core tapes; page 34, lines 7-8 reference "six" core tapes.) Sgt. Causey testified he was at the Harrah's casino on April 27, 2002 ( Exhibit One, page 12, lines 1-6) and began review of the video evidence impounded from Harrah's long before May 16, 2002 ( Exhibit One, pages 11-12, and page 34, lines 7-11 and 16-25). This testimony demonstrates the tapes were taken out of

evidence by "Homicide" to Causey's section, and on another occasion Causey and Detectives Dan Long and Mike McGrath took them out of evidence and back to Harrah's in early May, the 6th or 7th. He also testified that, "We were trying to identify a couple suspects. I took and checked out of evidence at the direction of Homicide several tapes, went to the Tourist Safety Unit who had a Cognitech video forensic analysis system. We did not have one. We went there to capture stills from the tapes in order to, through sources, out sources, intelligence agencies

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or groups, other agencies, identify a few of the individuals that had remained unidentified at that time. That was my first contact. I checked those items back into evidence." ( Exhibit One, pages 35-36.) And as Sgt. Causey was not certified in Cognitech technology (that used to duplicate the subject videotapes), he did not conduct the duplication or digitization. Instead, he instructed others as to which portions of which tapes he wished duplicated from the original Harrah's tapes. In fact, Sgt. Causey was not himself involved at all in some of the duplication process. (Exhibit One, page 37, lines 17-23.) Sgt. Causey also testified to being in possession of Exhibit No. 43 (Exhibit One, page 36.) This item is an index of all the Harrah's videotapes listing the item number, which index has not been disclosed. Disclosure of that document is hereby demanded. III. GOVERNMENT'S USE OF LAUGHLIN VIDEOS The Government has never represented what video evidence it intends to utilize at the trial in this case. The defense believes this failure to be the result of the Government not having even viewed the tapes, let alone determined materiality or relevance. The defense has learned, through its own diligence, that the Government has knowingly withheld volumes of relevant and material video. The following is a short list of the evidence obtained to demonstrate this knowing concealment. Sgt. Causey employed at the grand jury many compact discs he compiled from numerous videos from Harrah's. The defense knows that from his

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description of critical events that were caught in part on cameras 21 and 22 and the videotapes that have not been disclosed to the defense. As shown by his grand jury testimony excerpts, cameras 21 and 22 are critical to the event leading to the indictments regarding the Laughlin incident. IV. CAMERAS 21 and 22 Attached as Exhibit Nine is a diagram of the Harrah's casino depicting the placement of surveillance cameras. Circled on the exhibit are the locations of cameras 21 and 22. Attached as Exhibit Ten are two still photographs provided to the defense evidencing that Camera 21, as listed in the bottom left hand corner, was operating and recording on April 27, 2002. Those videos have not been disclosed. Sgt. Causey refers to cameras 21 and 22 during all three days of his grand jury testimony. He describes in great detail the conduct of a Mongol, Alex Alcantar, being caught on camera 22. (Exhibit Three, page 140-141.) In fact, he testified to the remarkable clarity of that video. (Exhibit Three, page 140, lines 21-25.) On pages 140-158 of Exhibit Three, he describes at length key events caught on those two cameras. According to Sgt. Causey, at least camera 21 is capable of being manipulated, and was in fact manipulated, by operators within the Harrah's surveillance room during the event. (Exhibit One, pages 20-21.) It is likewise clear from the defense investigation and review of video evidence, and admitted by Sgt. Causey, that those cameras were being manipulated at the time of the incident and captured the events that led up to and instigated the melee that followed.

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Q: All the camera switches were not done as a part of your editing process then? A: Yes, sir, you're right. Q: They were done in the surveillance room by the surveillance person for the casino? A: Yes, sir. Q: At the time he was filming it? A: Yes. (Exhibit One, page 40, line 25 to page 41, line 7.) Further, Sgt. Causey reluctantly and indirectly admitted that the composite DVDs created by him and others are not true and correct copies of the original videos, pursuant to direction from the County Attorney's Office. ( Exhibit One, pages 56-61.) Also key here is the method used by Causey, at the direction of the County Attorney, to manipulate the videos for presentation to the grand jury. First and most obvious is the fact that he did not yet have all of the videos from Harrah's , as stated above. He acknowledged this in his testimony. In his March 18, 2004 testimony, beginning at page 60, he testified as follows: Q: So what we're seeing in each of these DVDs you prepared, these composites if you will, is true and accurate copy of portions of the original videotapes that were made from the casino? A: That's correct. Q: And they truly and accurately represent those? A: Yes. Q: Furthermore you made every effort to put in all pertinent scenes involving a particular focused person for that video? A: Yeah, to the best of my knowledge, best of my ability at that time with the video that I had, yes.

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Q: So we have all the relevant and viewable video segments for each one of the individuals that is depicted in each DV? A: To my knowledge, yes. Q: Are there a few little segments here and there that are of no consequence that might not have made it onto the DVD? A: That's correct. Q: By and large you have, what, about ninety percent of it of each person? A: Of the tapes that we had up to this point, yes. What we did in order to just, because it was such a monumental task, there was so much video, if a camera angle was clearly covered, and what happened was covered on one angle and the secondary angle was a duplicate of that, we left that out sometimes, but by and large ninety percent of the video is there of what we had. The relevance of the fact that the defense has never been provided the videos from either cameras 21 or 22 should be abundantly clear at this point. But to put an even finer point on the issue, the Court should note from the transcript that Sgt. Causey describes at length the actions of Alex Alcantar, a Mongol. While the Government has attempted to assert that this melee in Laughlin was instigated by an individual alleged to be a member of a criminal gang, it alleges that that individual was a member of the Hells Angels. Attached as Exhibit Eleven are two still photographs of Alex Alcantar, a Mongol, firing a gun at 02:16:11 and 02:16:15. He is depicted at the top of the stills directly underneath the numbers "11" and "15" with his arm outstretched. These stills are taken from camera 14, the videotape of which has not been disclosed to the defense. Ballistics tests conducted by the Government

demonstrate that the bullets from the gun used by Alcantar killed victims Bell and

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Temultey. It should not escape the Court's notice that no federal charges have been brought against any Mongol members arising from this incident. Attached as Exhibit Twelve are two still photographs of Officer Hood of the LVPD firing at Mongols at 02:16:19. Attached as Exhibit Thirteen is a still photograph of the event. Circled on the right edge of the photo is the extended arm of a Mongol by the name of Martinez firing a gun at 02:16:20. Video evidence produced shows no firing of any weapon by any alleged Hells Angels member until 02:16:36. CONCLUSION The defense has taken extraordinary steps to try to determine what evidence is being withheld by the Government. These extraordinary steps have resulted in understandably limited measure due in no small part to the active concealment by the Government and its agents. This Court has accepted and tolerated the

Government's excuses. This Court has likewise abided the Government's refusals to present its agents for cross-examination on any issue, let alone the issues presented here that so clearly mandate evidentiary presentation. If this Court continues to allow this Government misconduct, yet holds the defense to long-standing motion and trial deadlines, the already clear prejudice to the defense compounds over time.

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Dismissal is now certainly warranted and appropriate. RESPECTFULLY SUBMITTED this 28th day of December, 2005.
____/s/__________________________________

Barbara L. Hull, Attorney for Mr. McKay Original filed electronically this date. Courtesy copy to follow. Copy of the foregoing provided electronically this date to: Timothy Duax, Esq. Assistant U.S. Attorney Two Renaissance Square, Suite 1200 40 North Central Avenue Phoenix, Arizona 850034-4408 At: [email protected]

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