Free Memorandum - District Court of Arizona - Arizona

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JOSEPH E. ABODEELY (2683) Attorney at Law 1345 West Monroe St. Phoenix, Arizona 85007 Tel: (602) 253-2378 Fax: (602) 253-3342 E-Mail: [email protected] Attorney for Craig T. Kelly UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA ) ) Plaintiff, ) ) vs. ) ) 12. Craig T. Kelly, et al., ) ) Defendants. ) ______________________________) United States of America, No. CR-03-1167-PHX-DGC DEFENDANTS' MEMORANDUM REGARDING JURY TRIAL

Defendants' by and through undersigned counsel, hereby submit this Memorandum relating 14 to issues concerning jury trial in the instant case. 15 It is difficult to be specific on some issues because it is unclear as to who will ultimately be 16 tried and whether severances will be granted. Some defendants have been offered plea agreements; 17 therefore, it is unclear whether 13 or 8 or less defendants will be on trial. 18 1. Expected Length of Trial 19 The Government's estimation of a 12-16 week long trial is a pure guess in light of the fact 20 that some of the defendants may have separate trials. There may be less defendants tried but more 21 evidence elicited based on defendants' cross-examination. Government counsel hint that the length 22 of trial depends on how long defense counsel cross-examine witnesses and whether or not defense 23 counsel will stipulate to certain evidence. The Court is well aware of the discovery disputes 24 involved in this case and how the Government has taken a stern position to hold all discovery to the 25 last minute. It is anticipated that last minute discovery may be the most crucial to the defense and 26 will require last minute investigations and possibly motions. The results of last minute discovery

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from the Government and how it will affect anticipated trial procedure is uncertain. The Government noted that it was unclear whether or not two or three defense attorneys would be appointed to cross-examine Government witnesses. Each defense counsel desires to independently cross-examine Government witnesses and do not waive this right. It is bizarre to think that the Government attorneys would even suggest this blatant denial of right to counsel for the defendants. The Government claims it will have between 300 to 500 exhibits at trial including 40-50 drug exhibits. As the Court is aware, there are thousands of pages of investigative reports and hundreds of video tapes involved in this case. This re-emphasizes the need for severances because, for example, any client not charged with a drug offense, is unduly and greatly prejudiced by being tried with defendants who may have dealt drugs. The Government claims it wants to admit 100 firearms. Defense counsel plan on filing motions in limnie, and firearms having nothing to do with charged crimes will certainly be the subject of those motions. Without knowing with specificity exactly what exhibits that the Government intends to use at trial, defendants cannot challenge their admissibility now. But objections, motions, and sidebars will almost certainly be necessary to deal with issues as they arise because defendants desire to make an accurate record of Government transgressions if, and when, the court overrules defendants' objections. Defendants think that this trial should be conducted as any normal trial would be conducted but with multiple defendants. 2. The Likely Number of Witnesses to Testify at Trial The Government claims there will be 100 to 125 witnesses called at trial, at least 18 of them being expert witnesses. It is clear there would be cumulative testimony involved, and defense motions in limnie will probably address this issue and diminish the number of "experts". Reference is made to defendant Johnston's Motion to Exclude or Limit Expert Testimony (doc#939), which more thoroughly discusses this issue. Because there are crucial issues relating to chain of custody, custodian of records, etc., some key "experts" may have to testify, but not all of them. The motions in limnie will address many of these issues. -2Filed 02/01/2006

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 3. Location of Trial The next Case Management Conference will be held in the Special Proceedings Courtroom, and at that time, defense counsel can compare it to the courtroom with the multiple tables which they saw a few weeks ago. That issue is pending. 4. Death Penalty Issue is Not Applicable 5. Bruton, Crawford, or Similar Confrontation Issues Defense counsel believe that there are Bruton, Crawford, and James issues which will be further explored in evidentiary hearings resulting from motions in limnie. Reference is made to the various motions filed by defense counsel concerning these issues. In United States v. James, 576 F.2d 1121 (5th Cir. 1978) and 510F.2d 575 (5th Cir.), cert. denied 442 U.S. 97, 99 S.Ct. 2836, 61 L.Ed.2nd 283 (1979) the Court opined that before out-of-court co-conspirator statements could be admitted at trial, the Court must decide by a preponderance of the evidence independent from the statements that a conspiracy existed; that the statement was made during the course of and in furtherance of the conspiracy; and the declarant and the defendant must be members of the conspiracy. Motions in limnie may address these issues. The instant case also requires the showing of a conspiracy other than from the alleged racketeering acts. U.S. v. Turkette, 452 U.S. 576 (1981). Thus, if the court decides not to sever any of the defendants, the court must find prior to trial that co-conspirator statements are independent of the conspiracy and the racketeering acts. Jones, supra; Turkette, supra. The RICO conspiracy must be independent of the racketeering acts; and the co-conspirator statements, to be admissible, must be independent of the conspiracy. James, supra. This concept is equally applicable in either a mega trial or a severed trial. 6. The Possibility of Severing the Trial The Government hubris in assuming that the court will not sever any of the defendants or counts in the instant case is disconcerting. Perhaps the Government feels confident in its position -3Filed 02/01/2006

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because the Court has opined that the failure of the Government attorneys to have properly disclosed true and complete viewable copies of original videotapes of activity at a crime scene after four years, thus far, is somehow the defense attorneys' fault. The Government has played fast and loose with its discovery obligations and now it wants the Court to condone further denial of due process for the accused in this case. The pending motions to sever filed by the various defendants speak for themselves, and hopefully the court will see that some severances are clearly justified. The Government said in its memorandum that "... the same basic evidence will need to be introduced against all the defendants in all of the counts since the Government must prove that the HAMC is an enterprise and that the racketeering acts and acts of violence...were made in furtherance of the HAMC..." (Doc 976, at 3). More accurately stated, the Government must prove that a RICO conspiracy exists independent of racketeering acts or co-conspirators' statements. 7. Severance and Baker Issues The Court's order of November 4, 2004 directed counsel to discuss United States v. Baker, 10 F.3d 1374 (9th Cir. 1993) in which the Court upheld a district court's refusal to sever the trial of 15 defendants on various drug charges. The key point is that Baker was a drug case ­ not a complex, white-collar RICO enterprise case with more complex issues. Although the government is correct that the Ninth Circuit in United States v. Baker, 10 F.3d 1374, 1389 (1993) affirmed the district court's denial of defendant's motion to sever, the Court made it clear that it did not favor mega trials and that its holding was limited to the facts in this case. The court expressed serious concerns about the "staggering hardships" caused by

mega trials and the disfavor with which they will be viewed. In fact, the court explained that "[o]ur holding should not be interpreted as an endorsement of the government's bringing such

24 mega trials in the future. Id. at 1389. 25 26 -4Filed 02/01/2006

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The Government points out that the Baker court distinguished between complex and noncomplex litigation when considering the propriety of a mega trial. In Baker, the defendants were charged with narcotics trafficking. The distinction is made in order to point out the inherent time that must be spent on explaining complex legal theories through the use of experts as opposed to presenting evidence of a drug transaction to the jury. The court pointed out that complex cases, such as anti-trust that involve abstruse economic theories create a greater effort for the jury to

7 consider than the effort involved in a narcotics trafficking case--not a particularly complex case. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 Not only do mega trials place a burden on the attorneys, the court and the Government, 22 but impose upon the civic duty of the jurors who have jobs, homes and great financial, physical 23 24 25 26 and personal expense to consider. Id. at 1391. The Ninth Circuit recommended that before allowing a mega trial to proceed, the trial court should elicit from the prosecutor a good-faith estimate of the time needed to present its -5Filed 02/01/2006 However, the instant case involves complex legal theories and issues of "enterprise" and "racketeering" activities for what is alleged to be a corrupt organization. The Government points out this will require at least 10 experts for the government to present these concepts to the jury. This is exactly what the Ninth Circuit cautioned against when instructing judges to require the prosecutor to "present a reasoned basis to support a conclusion that a joint trial is more consistent with the fair administration of justice than some manageable division of the case into separate trials for groups of defendants." United States v. Baker, 10 F.3d 1374, 1390 (1993). The court pointed out specific concerns for defendants and their attorneys. Chief among the concerns were those that may affect the defendant's right to counsel. The court explained that some defendants may have financial difficulty because of the staggering cost of attorney fees or because the attorney is unable to suspend his practice for such a protracted period. Baker v. United States, 10 F.3d 1374, 1390-91 (1993).

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case. United States v. Baker, 10 F.3d 1374, 1392 (1993). The court instructed that when the estimate exceeds four months, the judge should require the prosecutor to justify the conclusion that a joint trial serves the ends of justice. In this case, the Government estimates a trial length of 10-12 weeks. This is not an accurate, good-faith estimate given the number of witnesses and list of exhibits proposed by the government. It is more likely that the Government's case alone will take 12-16 weeks and that the defendant's case will be of similar length. It is difficult to discern

7 how many witnesses the defendants will, but it could be as many as the Government called. 8 9 10 11 12 13 14 15 16 17 18 19 20 ludicrous. Baker at 1389. 21 severance because there are fewer defendants and defense counsel and as a result fewer 22 continuances and sidebars involved; and each separate successive trial moves at a quicker pace. 23 24 25 26 Id. The court also addressed the Government's concerns about disclosing its case and weakening it against later-tried defendants. The court found this argument unpersuasive and -6Filed 02/01/2006 The court explained that judicial economy is better served by Nevertheless, the length of time for trial is one factor; the Ninth Circuit also instructed that there should be heightened scrutiny when more than ten defendants are being tried together. The court stated that "[w]hen more than ten defendants are involved, this justification should be "especially compelling." [Emphasis added] United States v. Baker, 10 F.3d 1374, 1392 (1993). The Baker court explained that the purported advantages to joint trials of this magnitude are overstated. The court went to great lengths to "set forth their concerns regarding trials of this magnitude and standards by which to measure the viability of such trials in the future." United States v. Baker, 10 F.3d 1374, 1389 (1993). For purposes of this Motion, summaries of the

court's four page analysis explaining its reasoning and addressing specific concerns commonly raised by the Government will be set forth below. The court stated that the claim that joint trials save time and serve judicial economy is

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stated that the government's presentation may induce guilty pleas from severed defendants. Baker, at 1389. The Governments' assertion that joint trials avoid the possibility that witnesses who testify at the first severed trial will be intimidated or prevented from testifying was also found equally as unconvincing by the Ninth Circuit. The court stated that there is no greater risk in separate trials where most of the defendant's already know the identity of most of the

7 Government's witnesses far in advance. Baker, at 1390. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 -7Filed 02/01/2006 Baker, 10 F.3d at 1390. There are numerous problems and sources of prejudice to an effective defense that arise as a result of mega trials. Baker, 10 F.3d 1374, 1391 (1993). Impeachment of a witness who may have testified months earlier or defense counsel undermining each other with conflicting trial tactics and strategies are examples inherent in lengthy multi defendant trials. Id. Also, private attorneys and appointed counsel sacrifice the balance of their practice; the court appointed lawyer does so to earn less than half of what they would normally charge. Id. The court discussed the "indisputably staggering hardships" caused by mega trials that are borne not only by defendants, but also by defense counsel, prosecutors, the jury, the district court, the court of appeals, and the taxpayers. United States v. Baker, 10 F.3d 1374, 1390 (1993). The court explained that The risk of prejudice to the defendants increases sharply with the number of defendants and the length of the trial. A trial's length expands with the number of defendants not only because of the amount of evidence that must be presented, but also due to the scheduling conflicts that abound when dozens of jurors, defendants, and attorneys must be present in court at all times. This may often result in defendants having to endure months or even years of incarceration while they are presumed, and may in fact turn out to be, innocent.

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The court recognized the Government's risks of causing prejudice to the defendants as well and stated that: The government also takes on a significant risk of reversal on appeal, not only as a result of the prejudice of such an epic trial, but because of any number of evidentiary or instructional errors that occur in the most basic proceedings. Even the most fair and attentive trial judge will err during the course of a 16-month trial, and some of those errors may require reversal.

Baker, 10 F.3d 1374, 1391 (1993). The court believed the human limitations of all involved may be especially acute when it comes to jurors and detailed troubles that jurors and judges experience as a result of mega trials. United States v. Baker, 10 F.3d 1374, 1390 (1993). The court explained: This type of trial also imposes on citizens who fulfill their civic duty by serving on the jury. Jurors have their employment and home life disrupted, often at great financial, physical, and personal expense. They are required to "sit stoically and silently for hours every day, day after day," Gallo, 668 F. Supp. at 754, and are prohibited from engaging in many ordinary pursuits of their daily lives, such as reading the newspaper. The trial court is another of the mega-trial's victims. Because the judge must adjourn the remainder of his or her calendar during the trial, "the already overburdened docket of the court reaches a breaking point, and the administration of justice in all of the court's cases is unconscionably delayed." Id. at 755. The pressure to avoid a mistrial or reversal may also affect evidentiary rulings. "The option of a mistrial and a restarting of the case is almost closed when such a large expenditure of time and effort would be wasted." Id.

Baker, 10 F.3d 1374, 1391 (1993). This memorandum has attempted to present the best estimates of trial issues and procedures based on the case status to date. RESPECTFULLY SUBMITTED this1st day of February, 2006..

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 /s/ Joseph E. Abodeely All Defense Counsel Tim Duax Keith Vercauteran Asst. U.S. Attorneys COPY of the foregoing mailed electronically this 1st day of February, 2006, to:

/s/ Joseph E. Abodeely JOSEPH E. ABODEELY Attorney for Craig T. Kelly

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