Free Order - District Court of Arizona - Arizona

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IN THE UNITED S TATES DIS TRICT COURT FOR THE DIS TRICT OF ARIZONA

United States of America, Plaintiff, vs. Robert J. Johnston, et al., Defendants.

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CR-03-1167-PHX-DGC ORDER

A thirteenth case management conference was held on J anuary 19, 2005, to discuss case management and other issues. See D oc. #1104. All parties (other than Defendant

Paul Eischeid, who currently is a fugitive) were represented by counsel, either by their own attorney or by an at t orney covering the hearing for them. attending Defendants was waived. On the basis of this conference, IT IS ORDERED: 1. A fourteent h cas e management conference will be held on February 9, 2006, The presence of all non-

following the hearing on substantive motions scheduled for that day. 2. The parties shall file a joint case management report addressing any

outstanding discovery issues and ot her issues the parties believe should be addressed at the fourteenth case management conference by February 6, 2006. 3. The Court direct ed the parties to exercise greater care in following orders to

file joint pleadings. A number of recent joint pleadings have been filed separately by t he Government and Defendants. When the Court requires the filing of a joint pleading, it

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should be filed jointly by the Government and defense counsel. M essrs. Russo and Paige, coordinating counsel previously designated for D efendants, should take the lead for Defendants in ensuring that such filings are made. 4. Issues were raised at the twelfth case management conference concerning

the Government's production of videot ap es related to the Laughlin shooting incident. Pursuant to the Court's order (Doc. #1012), Defendants filed a memorandum on December 28, 2005. Doc. #1015. The Government filed a response on January 17, 2006. Doc. #1075. Defendants filed a reply on January 18, 2006. Doc. #1093. The Court considered these

filings and counsel's argument at the thirteenth case management conference and entered the following orders: a. The Government shall produce Exhibit 43 to Sergeant Causey's

testimony on or before February 2, 2006. b. The Government stated that law enforcement has not been able to The

locate a recording from VCR-42 between the hours of 8:00 p.m. and 2:00 a.m.

G overnment has asked Sergeant Causey to conduct an additional search for this videot ap e. If the videotape exists, the Government shall produce it on or before February 2, 2006. c. The Government shall produce the videotape from the Flamingo Hotel

on or before February 2, 2006. d. The Government s t at ed that it does not believe tapes 431-435 exist.

Counsel for Defendant Augus t iniak provided Government counsel with a document suggesting that such tapes do exist. The Government is directed to locate such tapes and produce them to Defendants on or before February 2, 2006. e. The Government shall provide t he identity of the cab driver reflected

in a videotape to Defendants on or before February 2, 2006. f. The Government has as ked for the LVM PD to conduct a search for Any such

any additional property reports that may relate to chain of custody issues. documents shall be produced on or before February 2, 2006. g.

The Government represented that the 38 and 51 videotap es p roduced
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to Defendants are first-generation videotapes and the best quality available. quality issues may be raised in connection with admissibility arguments. h.

Videotape

With the exception of any documents that may be located before

February 2, 2006, the Government also represented that it has produced all chain of custody documents in its possession. i. With respect to cameras 14, 21, and 22, the Government asserted that

these videotapes were produced to Defendants as part of the 38 videot ap es first produced in February of 2004. Tapes from these cameras apparently are multiplex tapes that cannot be viewed by Defendants. This issue is addressed below. 5. In briefing provided for the thirteenth case management conference

(Docs. ##1015, 1075, 1093), the parties informed the Court that some of the Laughlin videotapes are "multip lex" t apes that apparently include images from multiple cameras. Separating out the images requires a process called " demuxing," which can be performed only by specialized equipment. The Government asserts that the group of 38 videotapes from the Laughlin incident were produced to Defendant s t hree t imes ­ in February 2004, February 2005, and December 2005. The Government assert s t hat Defendants have known the importance of the

Laughlin videotapes from the outset of this case and should have obtained t he means for reviewing them. D efendants contend that the demuxing equipment is rare (not available in Phoenix, Arizona, they assert) and very expensive. They also argue that t he Government has the

burden of producing the videotapes in a form accessible to Defendants. Without deciding who is at fault ­ the Government for failing to provide viewable copies of the videotapes or Defendant s for failing to arrange for viewing and copying of the tapes ­ the Court ruled that the Government promptly shall produce view able copies to Defendant s . T he Court did so because time is of the essence and the Government has To assist the

access to equipment that can be used to view and demux the videotapes.

Government in producing videotapes in an order and at a pace that is most help ful to
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Defendants, t he Court directed defense counsel promptly to identify the priority in which they would like the videotapes produced. Defendants complained that production of viewable videotapes only two or three months before trial will prejudice their trial preparation. The Court notes, how ever, that

there are 14 defens e attorneys in this case, all of whom have an interest in the Laughlin event since it is a central part of the Government's RICO claim. M oreover, the Court has appointed 9 investigators, 7 paralegals, and 5 video review ers t o assist Defendants in their trial preparation. The Court advised Defendants at the thirteenth case management

conference that they may submit reas onable requests for additional resources necessary to review the demuxed tapes as they are produced by the Government. The Court also

observed that Defendants will not be foreclosed from arguing that the tap es w ere produced untimely and that their lat e p roduction is prejudicial to the defense. The Court will

consider the merits of such arguments and ap p rop riate remedies, if any, after they have been asserted by Defendants. #1012. M otions in limine are due on March 17, 2006. See D oc.

Defendants should assert any arguments regarding late production of the

videotapes, quality issues, or foundational issues at that time.1

The Government clearly has t he burden of producing information required by Rule 16. In addressing the question of prejudice, however, the Court w ill also consider whether D efendants have had the ability to obtain access to the multiplex videotapes on their ow n. Defendants do not dispute the Government's assertion that t he 38 Laughlin videotapes were first produced to Defendants in February of 2004, nor do they dispute that they have known the importance of the tapes from the beginning of this case. As described above, the Court has authorized substantial defense resources to prepare for trial, including resources specifically aut horized for the purpose of reviewing the numerous videotapes produced in this case. The defense investigator responsible for videotape issues, Charles Whiteman, was appointed in February 2005, the same month the Government made its second production of the 38 Laughlin videotapes. See Doc. #605. Thus, if D efendants claim prejudice based on the fact that they did not receive access to the demuxed t apes until shortly before trial, the Court will inquire into whether they could have obtained that access earlier through diligence and a prudent use of resources that had been or could have been sought from the Court. As part of this inquiry the Court will ask the parties to determine whether defendant s in t he Nevada cases, which concern the same Laughlin
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Defendants asked the Court to dis mis s the Laughlin-related charges on the basis of late disclosures. This request will be addressed in a separate order. 6. The Court addressed additional motions during the thirteenth case

management conference and ruled as follows: a. Defendant M cKay has filed a motion seeking the production of Doc. #946. The Court

operational plans and reports for Agents Dobyns and Kozlowski.

will deny the motion because M cKay has not made the threshold showing required for p roduct ion under Rule 16(a)(1)(E)(i). See Doc. 702 at 5. In response to the motion, the Government states that it will produce redacted documents showing the purpose of the operation Agents Dobyns and Kozlowski were engaged in at the time they encountered Defendant M cKay. The Government shall produce these documents to counsel for

Defendant M cKay on or before February 2, 2006. b. Defendant Kelly has filed a motion seeking production of all evidence Doc. #968. The Court previous ly granted a protective

related to the Gutierrez assault.

order with respect to these materials, except for statements made by Defendants K elly and Watkins. Doc. #1078. The Government stated during the t hirt eenth case management T hus , t he p rotective order previously entered

conference that no such statements exist.

by the Court will continue to govern the materials relat ed to the Gutierrez assault. Those materials shall be produced to counsel for Defendants Kelly and Watkins on

February 24, 2006. On the basis of this order, Defendant Kelly's motion is denied. c. Defendant Watkins has filed a motion seeking the product ion of Brady

information from personnel files of law enforcement agent s w ho w ill testify at trial. Doc. #990. Counsel for t he G overnment stated that all such material will be produced before

trial. The Court ordered the Government to p roduce such material on February 24, 2006. On the basis of this order, Defendant Watkins' motion is denied. 7. The Court discussed the disclosure of information currently being withheld

events and tapes, have been able to access the multiplex tapes, and, if so, how.
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under t he protective order. The Court confirmed that the information referred to in various pleadings as "six week" materials shall be produced on February 24, 2006, with "two week" material being produced on March 10, 2006. Counsel for the Government shall

coordinate the production of these documents with counsel for Defendant Augustiniak, Patricia Gitre. counsel. 8. T he G overnment has filed a second supplemental ex parte application M s. Gitre will supervise the dissemination of this material among defense

requesting that the Court grant a protective order with respect to the new material locat ed by the Government in early January. The Court informed counsel for the Government that more detail is required before the Court can rule on this application. The Government shall provide additional detail on or before January 27, 2006. 9. Defendants have not responded to t he Government's memorandum

concerning trial procedures.

Doc. #976.

Defendants' memorandum w as due on January

13, 2006. See Doc. #868. The deadline for t he filing of this memorandum shall be extended to February 2, 2006. 10. The Court granted Defendants until January 30, 2006, to reply in support

of the following motions: Docs. ##836, 930, 937, 950, 951, 956, 966, 967, 970, 978, 982, 984, and 994. 11. The Court granted Defendant Augustiniak's motion to ext end the deadline

for filing substantive mot ions . Defendant Augustiniak may file such motions on or before February 28, 2006. Other defense counsel seeking t o file s ubs tantive motions shall make the showing required in Doc. #1012, ¶ 7. 12. The Court extended the time for the parties to file a joint jury questionnaire,

as required by the Court's order of D ecember 27, 2005 (Doc. #1013), to January 31, 2006. The Court reviewed jury selection procedures and dates with counsel.

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13.

The hearings to be held on February 8 and 9, 2006, s hall be held in the This will enable the Court and counsel to evaluate the

Special Proceedings Courtroom. suitability of this room for trial.

DATED this 27th day of January, 2006.

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