Free Motion to Unseal Case - District Court of Arizona - Arizona

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PATRICIA A. GITRE, P.L.C (#011864) 331 N. 1st Avenue, Suite 150 Phoenix, Arizona 85003 Telephone: (602) 452-2918 Fax: (602) 532-7950 [email protected] Attorney for Kevin J. Augustiniak IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA UNITED STATES OF AMERICA,

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CR03-1167-PHX-DGC DEFENDANT'S MOTION FOR AN ORDER DIRECTING THE GOVERNMENT TO UNSEAL FEDERAL AND STATE COURT PROCEEDINGS AS TO INFORMANTS OR WITNESSES; DISCLOSURE OF PRESENTENCE REPORTS AND REQUEST FOR IN CAMERA REVIEW OF PRESENTENCE REPORTS

Plaintiff, vs. KEVIN J. AUGUSTINIAK Defendant.

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Defendant Kevin Augustiniak, through counsel moves for an order that the government unseal or seek an order to unseal all state and federal files of any informants in this case. For example, as to Michael Kramer (CI 376), the federal and state government obtained an order sealing Kramer's Arizona federal and state cases regarding the Garcia murder. The government plans to provide one transcript of a plea proceeding as

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part of its six materials but does not indicate whether it is state or federal. The defense would like to review the entire Arizona state and federal file (and any other proceedings that are sealed) and be able to obtain certified transcripts of any proceedings as well as certified copies from those files for trial.

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Case 2:03-cr-01167-DGC

Document 1201

Filed 02/07/2006

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Further, the defense seeks an order of in camera review of any witness' or informants presentence reports from any district or state known to the government. As stated in United States v. Alvarez, 358 F.3d 1194, 1207-1208 (9th Cir. 2004)

While a criminal defendant has no constitutional right to examine presentence reports, he is nevertheless entitled to disclosure of Brady material contained therein. E.g., United States v. Chavez-Vernaza, 844 F.2d 1368, 1375 (9th Cir.1987). Thus, "[a] defendant is entitled to material in a probation file that bears on the credibility of a significant witness in the case." United States v. Strifler, 851 F.2d 1197, 1201 (9th Cir.1988) (citing Brady, 373 U.S. at 87, 83 S.Ct. 1194). With respect to presentence reports, we have stated that trial judges have discretion either to make an in camera inspection of the materials or to rely on an examination by a probation officer. Chavez-Vernaza, 844 F.2d at 1375. In Strifler, we stated that the appropriate procedure with respect to probation files is for the trial judge to conduct an in camera review to determine whether they contain discoverable information. [FN9 omitted] Strifler, 851 F.2d at 1201. "The trial court must release what it finds relevant, material and probative as to the witnesses[sic] credibility." Id. at 1202.

The defense requests the court order the government to: 1) Notify the defense of the existence of any Presentence reports for any of the informants, the state or district and the case number. 2) Provide the presentence reports if in the government's custody, possession or control; and 3) Provide written notification if no presentence report exists for a particular witness or informant. The defense further requests that the court conduct an in camera review of all

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presentence reports to determine whether Brady material should be disclosed to the defense. As to all informants and government witnesses, if there are any other files state or federal, in which the government has obtained an order to seal (directly or indirectly),

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Case 2:03-cr-01167-DGC

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Filed 02/07/2006

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the defense requests this court to order the federal government by February 24, 2006 to: 1) Obtain an order unsealing any and all files and all documents contained in those files: 2) Provide the defense with a copy of the order as well as the case numbers, County, State, or District where these files are located.

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There is no excludable time as a result of this motion or an order thereon. RESPECTFULLY SUBMITTED on February 7, 2006.

PATRICIA A. GITRE PLC

/s/Patricia A. Gitre Attorney for Defendant Kevin Augustiniak ORIGINAL filed electronically and copies of the foregoing Delivered via electronically or by email on 02/07/2006 Clerk of the Court Judge David G. Campbell Sandra Day O'Connor United States Courthouse 401 West Washington Street Phoenix, Arizona 85003 Tim Duax and Keith Vercauteran Government counsel All Defense Counsel /s/ Patricia A. Gitre

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Case 2:03-cr-01167-DGC

Document 1201

Filed 02/07/2006

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