Free Reply to Response - District Court of Arizona - Arizona

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Barbara Hull, State Bar No. 011890 86 West University Drive, Suite 101A Mesa, Arizona 85201-5855 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 DEFENDANTS' REPLY IN SUPPORT OF MOTION TO DISMISS REFERENCE VIDEOTAPE EVIDENCE OF LAUGHLIN INCIDENT (Assigned to The Honorable David G. Campbell)
EVIDENTIARY HEARING REQUESTED

Defendants, through undersigned counsel, hereby submit their Reply in support of the motion to dismiss all charges arising out of the Laughlin incident. As a preliminary matter, the defense cannot adequately respond to the government's specific representation regarding certain tapes and will supplement if necessary regarding specific tapes by the status conference. However, the defense specifically objects to the

government's position that the defense must obtain their own equipment to view the multiplex tapes which contain critical and possible exculpatory evidence regarding who is criminally liable for the murders of the individuals at Laughlin. The defense requests that the court resolve this issue at the status conference. Right now, there are over 80 multiplex tapes that the government

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expects the defense to be put in viewable form prior to trial. Assuming the tapes are of a generation that can be reviewed, the cost to the defense is approximately $30,000 to $50,000. From its latest response, it is apparent that government justifies its conduct by blaming the defense for not notifying the government of problems with the government's own evidence that it intends to use to convict these defendants. The Government also refuses to provide notice of which of the videos it intends to utilize at trial. The defense refuses to accept responsibility for the government's dilatory conduct and requests this Court to dismiss the Laughlin predicate acts or preclude the government from utilizing any of the video evidence at trial.1 Almost four years has passed since April 27, 2002 when the Laughlin melee occurred. This is not a case where the government subsequently learned of possible criminal acts and then began investigating for possible prosecution. By April 27, 2002, the ATF and the DEA were well into their joint HAMC investigations that spanned over five states already initiated a five state investigation.2 More importantly, the federal government through its agents was not only physically present at the scene on April 27, 2002, it immediately began a joint investigation with Nevada State officials. It had immediate access to all physical evidence regarding the Laughlin incident including Harrahs and Golden Nugget videos of the events in question. Further the LVMPD was on the scene filming HAMC members (for its own personal use) and created at least 11 videos of footage. From April 27, 2002 the federal government controlled every aspect of the Laughlin investigation including the Harrah videotapes. Whether they exercised

appropriate control over the physical evidence remains a factual and legal issue bearing on the admissibility if such evidence.

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This response is intended to address only the issues related to the Laughlin predicate acts. The defense does not waive any arguments with respect to other undisclosed and relevant evidence by the government.

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In November 2003, the United States Attorney's Office in both the Arizona and Nevad a districts obtained indictments which including RICO charges and the Laughlin melee. In March or April, 2004, the State of Nevada obtained an indictment regarding the Laughlin events against many of the same individuals named in the Arizona and Nevada indictments. The concurrent filing of these indictments as well as the execution of over 60 search warrants by the Federal government in December, 2003 in over five states (Nevada, Alaska, Arizona, California, and Washington), reflects a structured, organized, and coordinated joint effort of the Arizona and Nevada federal and state governments. The government presented to each grand jury its version of the Laughlin events through Sgt. Causey and the videotapes obtained from Harrahs. It can be presumed that both the Nevada and Arizona District Attorneys office were well aware of the foundational issues presented by the chain of events surrounding the acquisition of the videos, the digitizing of the videos, the many generations of the videos that were created and the compilation by Causey created for and on behalf of the state and federal government. It is clear from the Sgt. Causey's state grand jury testimony that he on behalf of the federal and state government was responsible the securing and maintaining the evidence that is the most critical if not the heart of the government's case ­ the videotapes of the actual brawl between the Mongols and the Hells Angels. Sgt. Causey testified as to what he did to create evidence from the original video tapes for the government and admitted that portions of the original events were omitted during that process. Sgt. Causey also testified although somewhat convoluted, about the chain of custody of the Harrah videotapes. Any seasoned prosecutor that presented the matter to the grand jury or reviewed the grand jury transcripts would be immediately alerted as to the numerous issues that would arise regarding the

Although the date(s) s these investigations began is in dispute, the Arizona and California investigations is

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Laughlin videotapes.3 The government was aware from April 27, 2002 of the critical evidentiary value of the Laughlin tapes and relied heavily on this evidence to secure indictments in each district. The government's claim of good faith compliance and proclamation of compliance is not substantiated by the record made in this case over the last two years and is simply incredible. The government claims that the first time it learned that "its copies of the 38 videos contained the same defects as the copies disclosed to the defense" was on November 4, 2005. Response, p.4 lines 7-9. Issues regarding disclosure, quality and editing of the Laughlin videotapes has been repeatedly raised by the defense in case management reports, at status conferences, in motions and letters. Some examples:


Case Management #3 Order (4-13-04) (dkt. 253), Paragraph c: Counsel informed the Court that some or all of the videotapes produced by the government in Nevada have been edited. Counsel for the Government in this case shall confer with counsel for the Government in Nevada and obtain information as to how, when and by whom the videotapes were edited, as well as the current status and location of the videotapes from which editing was performed. Counsel for the government shall promptly disclose this information to Defendants in this case



Joint Case Management Report #3 (6-8-2004), paragraph F: The District of Nevada has not advised as of this drafting regarding what "generation" of copy the tapes represent, nor the process or individuals involved in the editing. However, APEX document Solutions has advised that they are unable to duplicate (to CD) the video tapes due to the poor quality of the copies in their

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documented as opened in approximately December, 2001. 3 As to the chain of custody, the government nonchalantly suggests that "it will be up to this court to decide in determining the admissibility of the tapes." Response, p.7, ll.21-22. This court has warned that it expects the parties to present any known foundational issues prior to trial. If the government expects to resolve these issues including the chain of custody, generation of videos, editing, etc. at or during trial based on the what it has disclosed thus far and its apparent lack of knowledge of how these tapes were obtained, when they were obtained, from whom and what version now exists, the court can expect a lengthy delay in the trial. -4-

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possession. It is not known if this quality is representative of the originals or due to the distance from original of the copy. Management conference transcript (6-8-04), p.21-28 (discussion of the Nevada discovery including videotapes) Transcript of 1/21/05 case management conference. As of January 21, 2005, the government knew and admitted that the "tapes... and they aren't in as good of shape as we would like them to be" p.28, ll.21-24. The government agreed that it would produce unedited, better quality tapes. P. 29.4

The court stated: The government has been promising to produce this information for months. The court is frustrated that these materials have not yet been produced. The government is order to produce them to Defendants in this case on or before February 18, 2005. Strict compliance with this Order will be expected. Order (Dkt. 537), p.3, pp.6. The court ordered the government to comply with its discovery obligations to "produce better quality videotapes from Harrah's Casino as well as non -edited copies of the videotapes." Order 1/27/05 (dkt. 537), p .3, pp.6. Based on the above, the government cannot now claim in good faith, that the "lack of prior notice" o f various discovery disputes surrounding Laughlin discovery or shift their legal responsibilities to the defense. Despite numerous defense motions regarding discovery violations, discussions of non-disclosure at case management conferences and court orders repeatedly setting firm deadlines for government disclosure, the government has repeatedly failed to comply with its disclosure obligations. The court also repeatedly warned the government that it the court intended full compliance with disclosure and sanctions could result:

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By this date, the government had presented the case to the grand jury on three separate occasions.

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April 13, 2004 order (Dkt. 253)(set a deadline for government's full l disclosure by July 2, 2004)



June 17, 2004 order (Dkt. 292) (continued the government's deadline from July 2, 2004 to September 3, 2004 and notified the government that `[t]he court does not intend to grant additional extensions. See p.2, ll.19-20).



August 17, 2004 order (Dkt. 322) (affirmed the government's disclosure deadline of September 3, 2004)

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September 27, 2004 order (Dkt. 360) (affirmed the September 3, 2004 deadline) October 29, 2004: case management conference order (Dkt. 474). (The Court did not specifically address the government's failure to comply with September 3, 2004 deadline but instead ordered the parties to create a matrix regarding outstanding discovery issues and discussion of those issues continued through July, 2005). January 27, 2005 order (Dkt. 537) set a disclosure deadline of February 18, 2005.

However, the Court's repeated admonitions of strict compliance were diluted as each deadline passed without full compliance and without a good faith justification from the government. The only sanction to the government has been the court's "threat of sanctions," as the court continued to grant the government (sometimes without a request from the government) additional time for compliance. The government's complete lack of concern regarding the prosecution of this case is even more apparent as it appears that it did not choose to familiarize itself with the court's prior orders. Therefore, an y threat of sanction for non-compliance was pointless. On May 5, 2005 (17 months after the original indictment), the government admitted that it did not know about the September 3, 2004 disclosure deadline. Status Conference #9,

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Transcript, May 5, 2005, p.p.14, ll.13-24. Therefore it is presumed that the government's attorneys, although new to the case as of January 21, 2005, did not familiarize themselves with the status and specifics of this case until sometime after May 5, 2005. It is clear that they did not review prior case management reports, motions for disclosure nor letters from defense counsel regarding these issues. More importantly, they ignored at least nine court orders setting

deadlines for disclosure.5 It is incumbent upon the government to investigate and review its own evidence to determine whether 1) full disclosure was made, 2) reviewable evidence is disclosed, and 3) evidence was not edited, defective or otherwise unusable. The government did not begin its duty of inquiry until October of 2005, and then only as a direct result of this court's threat of dismissal. Order dated 9/14/05 (Dkt. 813) incorporated herein by this reference, which contains the long and tortured history of discovery disputes and the government's repeated incid ences of non-compliance. On October 21, 2005 the government, along with its sanguine apology for its prior conduct, certified that full disclosure has or would be made. Based on its representations, the court set a final deadline of November 4, 2005 for government compliance while still holding the defense to its pretrial deadline and trial date of April 26, 2006. The government's certification and accompanying apology proved to be misleading at best, as evidenced by the government's latest notification of additional discovery filed on or about January 6, 2006. It claims it was not notified by its agents of this discovery. This again is no excuse. A prosecutor is " 'deemed to have knowledge of and access to anything in the custody or control of any federal agency participating in the same investigation of the defendant.' " United States v. Zuno-Arce, 44 F.3d

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Any failure of the prior United States Attorney handling this matter to sufficiently apprise the current United States Attorney of the status of this case and court orders does not in any way excuse their failure to review the extensive

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1420, 1427 (9th Cir.1995) (quoting United States v. Bryan, 868 F.2d 1032, 1036 (9th Cir.1989)). The government's deliberate indifference and/or reckless disregard for the defendant's discovery rights in this case is the only reason for the repetitive delay in disclosure of critical evidence. Over the last two years, this court has repeatedly ordered the government to comply with their disclosure obligations, yet has continued to allow the government ample opportunity to resolve these issues and make appropriate disclosure to the defense. On the flip side, despite the government's outright defiance of this court's orders as well as the government' s interpretation of Rule 16 and complete lack of review of its own discovery in the case, the court continues to hold the defense's feet to the fire. The prejudice presented is to the constitutional right to a fair trial and effective assistance of counsel. As a direct result of the government's conduct, the government is afforded over four years to investigate and prepare it cases while the defense has but a few months. The defense is forced to use all its time right before trial reviewing discovery, determining additional issues with respect to the discovery, and addressing pretrial issues regarding this discovery, rather then spending sufficient time on substantive trial preparation. This result alone prejudices the defense. While dismissal of the entire indictment is a sanction of last resort, Cf. Bank Of Nova Scotia v. United States, 487 U.S. 250 (1988) (holding that as a general rule a district court exceeds its supervisory power in dismissing an indictment for prosecutorial misconduct not prejudicial to the defendant and noting that many errors may be remedied by means other than dismissal), .the court may use its supervisory powers to dismiss portions of an indictment or preclude the government from introducing evidence. "Federal courts have inherent but limited supervisory powers to formulate procedural rules." United States v. Morales, 328 F.3d 1202,

court record addressing these issues for over 16 months. Nor does the government's claim that it was relying on its

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1205 (9th Cir.), cert. denied 540 U.S. 993, 124 S.Ct. 491, 157 L.Ed.2d 391 (2003). The supervisory power may be used "to prevent parties from rea ping benefit or incurring harm from violations of substantive or procedural rules (imposed by the Constitution or laws) governing matters apart from the trial itself." United States v. Williams, 504 U.S. 36, 46, (1992). The Federal Rules of Criminal Procedure give trial courts broad discretion in imposing sanctions on a party who fails to comply with a discovery order: If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this rule, the court may order such party to permit the discovery or inspection, grant a continuance, or prohibit the party from introducing evidence not disclosed, or it may enter such other order as it deems just under the circumstances. The court may specify the time, place, and manner of making the discovery and inspection and may prescribe such terms and conditions as are just. Fed.R.Crim.Proc. 16(d) (2). See United States Wicker, 848 F.2d 1059, 1060 (10th Cir.1988); United States v. Fernandez, 780 F.2d 1573, 1576 (11th Cir.1986). When the government fails to comply with a discovery order, the factors the district court should consider in determining if a sanction is appropriate are (1) the reasons the government delayed producing the requested materials, including whether or not the government acted in bad faith when it failed to comply with the discovery order; (2) the extent of prejudice to the defendant as a result of the government's delay; and (3) the feasibility of curing the prejudice with a continuance. United States v.Euceda-Hernandez, 768 F.2d 1307, 1312 (11th Cir.1985); Fernandez, 780 F.2d at 1576. The court must also take into account the defendant's right to a speedy trial and cannot force the defendant to choose between the right to a speedy trial and the right to effectively prepare a defense. The purpose of the criminal discovery rules is "to protect the defendant's rights to a fair trial" and "the degree to which those rights suffer as a result of a discovery violation is determined ... by considering how the violation affected the defendant's

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ability to present a defense." United States v. Noe, 821 F.2d 604, 607 (11th Cir.1987). Further, " Prosecutors may, however, be sanctioned even if their misconduct does not prejudice the defendant: "In cases involving prosecutorial misconduct which is neither flagrant nor prejudicial, a district judge can still sanction the misconduct, but the sanction must be proportionate to the misconduct." United States v. Cadet, 727 F.2d 1453, 1470 (9th Cir.1984) (emphasis added). Sanctions may be necessary to punish prosecutors who fail to fulfill their

duty "to win fairly, staying well within the rules." United States v. Kojayan, 8 F.3d 1315, 1323 (9th Cir.1993); see also United States v. Isgro, 974 F.2d 1091, 1098 (9th Cir.1992), amended by 1992 WL 208434, 1992 U.S.App. LEXIS 30916, No. 90- 50531 (9th Cir. Nov. 25, 1992) (sanctioning a prosecutor by name for, among other things, lying to the district court about Brady material and attempting to keep that material from the defense through trial). Federal prosecutors have heightened ethical obligations required of no other attorney: Prosecutors are subject to constraints and responsibilities that don't apply to other lawyers. See, e.g., Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314 (1935). While lawyers representing private parties may--indeed, must--do everything ethically permissible to advance their clients' interests, lawyers representing the government in criminal cases serve truth and justice first. The prosecutor's job isn't just to win, but to win fairly, staying well within the rules. See United States v. Hill, 953 F.2d 452, 458 (9th Cir.1991); Barbara Allen Babcock, Fair Play: Evidence Favorable to an Accused and Effective Assistance of Counsel, 34 Stan.L.Rev. 1133, 1141 (1982). As Justice Douglas once warned, "[t]he function of the prosecutor under the Federal Constitution is not to tack as many skins of victims as possible to the wall. His function is to vindicate the right of people as expressed in the laws and give those accused of crime a fair trial." Donnelly v. DeChristoforo, 416 U.S. 637, 648-49, 94 S.Ct. 1868, 1874, 40 L.Ed.2d 431 (1974) (Douglas, J., dissenting). The government, while recognizing its heighten duties in the criminal justice system, deliberately and willfully chose not to carry out those duties in this case to prejudice the defense.

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The stakes are extremely high in this case, and there is simply no plausible reason for the delay or failure to address content-based issues, particularly when there are two federal districts as well as the State of Nevada investigating and prosecuting the same defendants for the same events over the last four years. The defense requests an evidentiary hearing to determine whether the government should be sanctioned for its deliberate dilatory conduct. If the court is inclined to accept the

government's excuses for its discovery delays and not provide the defense with a dismissal of the indictment or some lesser sanction, an evidentiary hearing is required to flesh out all the issues surrounding the videotapes prior to the court's acceptance of the government's excuses. It is abundantly clear that the government, despite its last ditch effort to organize and know their case, does not have a firm grasp on the foundational issues surrounding the videotapes. This lacking grasp will inevitably cause this court to grapple with admissibility of the videotapes at trial. For reasons set forth above, a continuance is not a sanction that benefits the defense. The defense requests a dismissal of the indictment or dismissal of predicate acts involving Laughlin or preclusion of the Laughlin videotape evidence at trial. The defense does not desire a

continuance in this case, as there are several defendants in custody, and the defense is forced into that position if the court does not preclude this evidence from trial. A court sanction consisting of a continuance only rewards the government and punishes the defendants. WHEREFORE, Defendants ask that this Court dismiss the indictment, or in the alternative, dismiss all charges related to the Laughlin incident. RESPECTFULLY SUBMITTED this 18th day of January, 2006. ______/S/___Barbara L. Hull_____________ Barbara L. Hull, Attorney for Mr. McKay Original filed electronically this date.
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Courtesy copy of the foregoing sent electronically this date to: The Honorable David G. Campbell United States District Court 401 West Washington Street Phoenix, Arizona 85003-0001 at: [email protected] Timothy Duax, Esq. Assistant U.S. Attorney Two Renaissance Square, Suite 1200 40 North Central Avenue Phoenix, Arizona 850034-4408 at: [email protected]

____/S/_Barbara L. Hull_________

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