Free Memorandum - District Court of Arizona - Arizona

1 PETER SCHOENBURG 2 New Mexico State Bar No. 2397

3 Albuquerque, New Mexico 87102 4 Telephone: (505) 243-1443 5 JOHN M SEARS 6 Arizona State Bar No. 005617 7 Prescott, Arizona 86301-3000 8 Telephone: (928) 778-5208 9 10 11 12 13 14 15 16 17 18 19 20 21 22
LUIS A. CISNEROS, et. al. Defendants. Come now the parties and, in response to this Court's Discovery Order (Doc. 982) -vsUNITED STATES OF AMERICA, Plaintiff, JOINT REPORT TO THE COURT REGARDING DISPUTED AREAS OF DISCOVERY No. CR 03-730-PHX SRB IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

500 Fourth Street NW, Suite 400

107 North Cortez Street, Suite 104

23 filed March 30, 2005, report to the Court the results of discovery settlement conferences 24 between representative, undersigned counsel on behalf of both sides on April 25, May 12, 25 26 28
May 13 and June 22 as follows:

27 United States' Motion to Compel Discovery (Dkt. 788), Defendants' Responses (Dkts.
832, 866, and 867), United States' Reply (Dkt. 891).

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1 2 3

The United States continues to assert, as set forth in its motion and reply, that the defense has identified, but not disclosed, expert testimony, documents, and objects that they

4 may offer into evidence at trial. The United States further asserts that such material is 5 immediately discoverable under Federal Rules of Criminal Procedure 12.2 and 16. To the 6 7
extent Defendants do not yet possess complete Rule 16 information, the United States asserts

8 that Defendants should be required to disclose what they now possess. For instance, if 9 Defendants intend to offer expert testimony on a particular subject, but have not yet 10 11 13 14 15 16 of government disclosures and the budgeting and approval process for potential expert 17 witnesses, Defendants assert that this process is still in its fairly early stages. In addition, 18
Defendants argue that the government has not yet complied with its own obligations in terms identified the name of the expert, they should be compelled to alert the United States with

12 respect to the subject matter of expert testimony.
The Defendants contend that the government has not yet fully complied with its disclosure obligations, as the various discovery motions make clear. As a result of the timing

19 20 of disclosing its expert testimony, particularly with respect to the government's "code" 21 experts, and as a result, Defendants have not yet been able to determine the extent of expert 22
testimony they need on this issue. Finally, to the extent that the government's motion

23 24 pertains to Rule 16 disclosures at the sentencing phase, the parties agree that will be the 25 subject of additional briefing (see footnote 7). 26 27 28
2

The parties have been unable to reach a resolution regarding this motion.

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1 Defendants' Motion for Disclosure of Rule 404(b) Evidence or, Alternatively, to 2 Preclude Use at Trial (Dkt. 789), the United States' Response (Dkt. 858) and Defendants' 3 4
Reply (Dkt. 910). Defendants request disclosure of Rule 404(b) evidence within 30 days of an order

5 granting their motion. The United States asserts that, as it continues to investigate and 6 7

prepare its case for trial, it may continue to discover and/or identify Rule 404(b) evidence

8 and, therefore, such a deadline would be inappropriate. Instead, the United States argues 9 that, as long as it provides reasonable notice of Rule 404(b) evidence in advance of trial, or 10 11
during trial for good cause shown, such evidence should be admissible. Further, the United

12 States asserts that, if it provides Defendants with additional Rule 404(b) notice, what 13 constitutes "reasonable" and "good cause" should be determined on a case by case basis and 14 15 16
with reference to relevant case law interpreting Rule 404(b). As set out in their motion, the Defendants request disclosure within 30 days of this

17 Court's Order. The incidents to be alleged by the Government under Fed. R. Evid. 404(b) 18 19
are likely to have occurred prior to February 2000, since most defendants have been in jail

20 since then. Defendants assert that the incidents are also likely to be spread over a large 21 geographic area including California, New Mexico and Arizona, and involve witnesses who 22
are transient, difficult to locate and uncooperative at best, with memories affected by the 5

23 24 year or more delay. For these reasons the defense asserts it will need time in order to 25 adequately investigate each incident, challenge the admissibility under 404(b), and/or rebut 26
the factual allegations before the jury. The defense asserts that late disclosure as suggested

27 28 by the Government will lead to numerous mid-trial requests for continuances as the defense
3

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1 scrambles to investigate new allegations. Since all of the events likely to be alleged occurred 2 3 5 6 7 9 10 4 identify all 404(b) evidence now.
Thus, the parties were unable to reach an agreement with respect to the timing of Rule 404(b) disclosures.

before February 2000, the defense asserts that there is no good reason the Government cannot

8 Defendants' Motion for Disclosure of Grand Jury and Petit Jury Data (Dkt. 790).
This motion was granted by the Court on July 6, 2005. (Dkt. 1141). Defendants' Motion for Production of Marital Communications (Dkt. 791), the United

11 States' Response (Dkt. 865) and Defendants' Reply (Dkt. 911). 12 13

The defense position is that the United States must identify, among the more than

14 15,000 intercepted conversations among various people, those calls between Luis and Lorena 15 Cisneros that it intends to introduce in its case. The United States asserts that it long ago 16 17

disclosed any communications in its possession between Defendants Luis Cisneros and

18 Lorena Cisneros, including the less than 100 such calls intercepted during CWT 215 and 19 CWT 216 between Defendants Luis and Lorena Cisneros, and that Defendants carry the 20 21 22 issue before the Court, then, is whether, among the communications between Defendants 23 Luis and Lorena Cisneros that it has disclosed, the United States must identify exactly which 24 25 26 communications between Luis and Lorena Cisneros in which they assert a privilege. 27 28
4

burden of asserting a privilege in any communication they consider to be privileged. The

communications it intends to use at trial, or whether the defense is obligated to identify all

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1 Defendants' Motion for Discovery of Exculpatory Evidence Relating to Alleged 2 Criminal Enterprise (Dkt. 792) and the United States' Response (Dkt. 868 at 49). 3 4 5
The United States has agreed to provide Defendants with the information described in section B, items 1 through 5, to the extent this material constitutes Brady material and is

6 subject to a potential Fed. R. Crim. P. 16(D) order limiting disclosure. The parties were 7 unable to reach an agreement with respect to the nine requests contained in section A of 8 9
Defendants' motion, and items 6-7 contained in section B. The parties maintain the positions

10 set forth in their briefs with respect to these issues. The Government agrees to continue to 11 disclose exculpatory evidence when received, subject to a possible Fed. R. Crim. P. 16(D) 12 13
order. The defense requests a deadline of 30 days from the entry of the Court's order.

14 Defendants' Motion for Disclosure of Giglio and Kyles Information Regarding 15 Defendants' Reply (Dkt. 909). 16 17 18
Defense Request A

Government Witnesses (Dkt. 793), the United States' Response (Dkt. 868 at 37), and

The United States agrees to provide the witnesses' complete name and any aliases, but

19 will not give the street address of any witness, only the city in which the witness resides. The 20 21 22 precise identity so that background information, investigation and document searches can be 23 effectively launched. The United States asserts that Defendants do not need a witness' 24
current address to conduct their investigation.

defense persists in its request for enough identifiers on the witness to determine the witness'

25 26 Defense Requests B and C 27 28
5

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The United States agrees to provide evidence of criminal history of its witnesses to the extent that: (1) the crime at issue is punishable by death or imprisonment in excess of one

4 year under the law under which the witness was convicted, or the crime involved dishonesty 5 or a false statement, regardless of the punishment; and (2) the United States or the federal 6 7

agencies involved in this investigation have knowledge or believe that the witness committed

8 such a crime. The defense maintains that the United States is obligated to provide evidence 9 of any and all criminal acts within the knowledge of the United States or any of its agencies. 10 11

The United States agrees that, under Brady, it is responsible for any exculpatory

12 material within its possession or the possession of the federal agencies involved in the 13 investigation of this case. The defense argues that the United States' responsibility should 14 15 16 the U.S. Attorneys Office, and that the Court should require the United States to search all 17 other agencies involved in the investigation of this case at any level for potential Brady 18 19 20 County Attorney's Office, Phoenix Police Department, Maricopa County Sheriff's Office, 21 Madison Street Jail, Chandler Police Department, Mesa Police Department, and others listed 22
in its motion.

not be limited to material in the possession of federal agencies including the FBI, DEA, and

material, including state agencies such as the Arizona Department of Public Safety, Maricopa

23 24 26 27 28 case. The United States disagrees, however, that Brady, Jencks, or Rule 16 mandates the
6

The United States further acknowledges its duty to disclose any such information

25 about which the United States knows, even when the information is in the possession of a
non-federal agency or a federal agency that has not been involved in the investigation of this

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1 United States to conduct the comprehensive search for discoverable material that Defendants 2 3
request this Court to order. For instance, the United States asserts that it has no affirmative

4 duty to contact every United States' agency and the government of every state in the Union 5 with respect to each of its hundreds of witnesses. The United States also contends it does not 6 7

possess ­ and need not produce ­ material about which it is unaware and that is in possession

8 of state agencies Thus, several of the defense motions repeatedly raise two issues: (1) 9 whether the defense should be able to obtain a court order that requires the United States to 10 11

discharge its discovery obligations in the manner of the defense's choosing; and (2) whether

12 the United States should be required to search non-investigating federal agencies, all United 13 States Attorneys' offices in the United States, and agencies of local governments to 14
determine if any of these agencies have discoverable information related to this case.

15 16 Because the parties have been unable to agree to a resolution of these issues, the parties 17 submit these issues to the Court for resolution.1 18
Defense Request D

19 20
The United States agrees to provide any written material, including plea agreements

21 and letter agreements, between the witness or the witness' attorney and the United States 22 23 24 25 26
1

27 and non-federal agencies that have investigated the case. Therefore, the United States has 28 attempted to acquire all investigative information related to this case from all sources.
7

The United States has requested all information related to this case from all federal

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1 Attorney's Office or its agencies,2 that confer a benefit to the witness in connection with this 2 3 5 6 7
case.

4 Defense Request E
The United States agrees to provide evidence of all formal or informal promises by the United States or its agencies to reward a witness, including, but not limited to, money,

8 leniency in criminal prosecutions, assistance in forfeiture proceedings, living expenses, 9 medical treatment, transportation expenses, and placements in witness protection programs. 10 11

The defense persists in the request for forms and other regularly produced documents

12 generated in connection with the FBI's or other law enforcement agencies' handling of 13 informant witnesses. The United States maintains that, while the defense is entitled to Brady 14 15 16 possession of the United States and its agencies. The parties submit this issue to the Court 17 for resolution. 18 19 20 21 22 23 24 25 26 27 28
Throughout this brief, the parties disagree on the scope of the term "agencies." As set forth above in the section entitled "Defense Requests B and C," the United States acknowledges that it must disclose any Brady information about which it is aware, but asserts that its affirmative duty to search for Brady information does not extend beyond material in the possession of federal agencies involved in the investigation of this case. Defendants assert that the United States' affirmative duty to search for Brady information extends to all offices of all federal law enforcement agencies in the United States, including all United States Attorneys' Offices, FBI offices, DEA offices, and ATF offices in the United States. In addition, Defendants assert that the United States is obligated to search all non-law enforcement federal agencies regardless of whether they participated in the investigation of this case. Defendants further assert that the United States is obligated to search all material of all non-federal agencies involved in the investigation for Brady information. Defendants concede, however, that the United States has no obligation to search all material of nonfederal agencies not involved in the investigation of this case.
8
2

information, they are not entitled to the actual internal forms and other documents in the

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1 Defense Request F 2 3

The United States agrees to provide information concerning any and all threats, within

4 its knowledge or the knowledge of its agencies, against a United States witness for failure 5 to testify or be interviewed, including but not limited to whether the witness was a target of 6 7 8 interviewed, even if the witness has not been charged. 9 Defense Request G 10 11

a criminal investigation and threatened with prosecution for failure to testify or be

The United States agrees to provide any evidence within its knowledge or the

12 knowledge of its agencies, reflecting bias of any United States witness against the defendants 13 motivated by hostility, kinship with a person adverse to the defendants, or any pecuniary or 14
other interest.

15 16 Defense Request H 17 18 19 20 ability to perceive, or memory. 21 Defense Request I 22 23 24 or alcohol abuse of any United States witness, in its knowledge or in the knowledge of its 25 agencies, that occurred during or near the time the witness perceived the events about which 26 27 28 instead requests all records within the last 15 years.
9

The United States agrees to provide any psychological record or records within its knowledge or the knowledge of its agencies that calls into question the witness' veracity,

The United States agrees to provide any information regarding the existence of drug

the witness is testifying, or at or near the time the witness testifies in this case. The defense

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1 Defense Request J 2 3

The United States agrees to provide all evidence, in its knowledge or in the knowledge

4 of its agencies, of failing polygraph test results, polygraph charts, video and audio tapes of 5 the administration of the failing test, and all accompanying documentation reports so long 6 7 9 10 11
as the failing polygraph test related to a question material to this case.

8 Defense Request K
The United States agrees to provide any impeachment evidence3 contained in military and Veterans Administration records of any United States witness within the knowledge of

12 the United States or its agencies. While the United States agrees to disclose impeachment 13 information within its knowledge or the knowledge of its agencies, the United States does 14 15 16 potentially be used to impeach a witness. 17 Defense Request L 18 19 20 or in the knowledge of its agencies, that is contained in records of any United States witness 21 from any welfare agency, food stamp office, housing authority, child support division, or any 22
other social service agencies. While the United States agrees to disclose impeachment

not agree to affirmatively search all records in possession of these entities that could

The United States agrees to provide any impeachment information, in its knowledge

23 24 information within its knowledge or the knowledge of its agencies, the United States does 25 26 27 28
By "impeachment evidence," the United States means evidence relevant to impeach the credibility of the witness' testimony in this case.
10
3

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1 not agree to affirmatively search all records in possession of these entities that could 2 3 5 6 7
potentially be used to impeach a witness.

4 Defense Request M
The United States agrees to provide any impeachment evidence, in its knowledge or in the knowledge of its agencies, contained in records of any United States witness from the

8 Internal Revenue Service or the State of New Mexico or Arizona Taxation and Revenue 9 Departments, including all 1040s and 1099s. While the United States agrees to disclose 10 11

impeachment information within its knowledge or the knowledge of its agencies, the United

12 States does not agree to affirmatively search all records in possession of these entities that 13 could potentially be used to impeach a witness. 14
Defense Request N

15 16
The United States agrees to provide any impeachment information, in its knowledge

17 or in the knowledge of its agencies, contained in employment applications, records, and 18
personnel files of any United States witness. While the United States agrees to disclose

19 20 impeachment information within its knowledge or the knowledge of its agencies, the United 21 States does not agree to affirmatively search all records in possession of these entities that 22
could potentially be used to impeach a witness.

23 24 Defense Request O 25 26 27 28 which any United States witness was involved. While the United States agrees to disclose
11

The United States agrees to provide any impeachment information, in its knowledge or in the knowledge of its agencies, that is contained in divorce or custody proceedings in

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1 impeachment information within its knowledge or the knowledge of its agencies, the United 2 3 4 could potentially be used to impeach a witness. 5 Defense Request P 6 7

States does not agree to affirmatively search all records in possession of these entities that

The United States agrees to provide evidence of any viewings of lineups, photo arrays,

8 and individual photographs shown to witnesses, as well as any sketches of suspects done by, 9 or with the assistance of the witness, which impeaches the witness' testimony and is within 10 11 12 arrays, showups, or lineups shown to witnesses, whether an identification occurred or not, 13 are potentially impeaching and should be disclosed. The United States asserts that a witness' 14 15 16 necessarily constitute Brady material. 17 Defense Request Q 18 19 20 Defense Request R 21 22 23 24 knowledge of the United States or its agencies. 25 Defense Request S 26 27 28 INS "S-Visas" or Special Parole Visas enabling United States witnesses to remain in the
12

the knowledge of the United States or its agencies. The defense asserts that evidence of all

failure to positively or negatively identify a defendant or any other person does not

There is no agreement as to this request.

The United States agrees to provide any other written agreements between the witness and the agency which inures a benefit that impacts the credibility of the witness, within the

The United States agrees to provide any and all immigration concessions, including

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1 United States or affording any other immigration status advantages, within the knowledge 2 3 5 6 7
of the United States or its agencies.

4 Defense Request T
The United States agrees to provide any jail and prison records that impeach the credibility of any of its witnesses, and that are within the knowledge of the United States or

8 its agencies. 9 Defense Request U 10 11

The United States agrees to provide all jail and/or prison monitored telephone calls,

12 as well as all monitored and copied mail and correspondence, within the possession or 13 knowledge of the United States or its agencies, that the United States knows contains a 14
statement that relates to the subject matter of the witness' testimony.

15 16 Defense Request V 17 18 19 20 Defense Request W 21 22 23 24 that involve promises or concessions the United States or its agencies made to the witness' 25 attorney or to the witness. 26 27 28
13

The parties were unable to reach a resolution with respect to this issue and submit it to the Court for resolution.

The United States agrees to provide any correspondence or other written material reflecting communication between the witness' attorney and the United States or its agencies

Defense Request X

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1 2 3

The United States agrees to notify the defense concerning each and every case in which a witness, who has entered into a cooperation agreement with the United States, has

4 testified on behalf of the United States, a state, or law enforcement, and that is within the 5 knowledge of the United States or its agencies. 6 7 8
Defense Request Y The United States agrees to provide the defense with statements of its witnesses

9 pursuant to 18 U.S.C. § 3500. With respect to the remainder of the defense's requests, the 10 11 13 14 15
4 16 Court to resolve these requests.

parties have not reached an agreement and submit the issue to the Court for resolution.

12 Defense Requests Z, AA, and AB
The United States asserts that resolution of these requests is covered above, in its agreements with respect to Requests D through F. The defense disagrees and requests the

17 Timing of Disclosures 18 19

The defense requests immediate disclosure of all Brady evidence, regardless of

20 whether it is impeachment evidence or not. 21 22 23 24 25 26 27 28
On page 6 of this motion, and in several other motions, the defense has requested information contained on the FBI's "I" drive. (Defs.' Mot. at 6). The United States has taken, and continues to take, the position that this information constitutes work product. The United States recognizes, however, its obligation to disclose any Brady material contained on this "I" drive, regardless of whether such material constitutes work product.
14
4

The United States continues to assert the position set forth in pages 30-32 of its Omnibus Response ­ that impeachment evidence of its witnesses is not discoverable in

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1 advance of trial. The United States further asserts that it should not be required to disclose 2 3

impeachment evidence related to its witnesses prior to the time it is required to disclose the

4 identities of these witnesses. In accordance with 18 U.S.C. § 3432, the United States intends 5 to disclose three days prior to the commencement of trial the names and places of abode of 6 7
witnesses who are not believed to be in danger from the early disclosure of their identities.

8 With respect to witnesses who are believed to be in danger, the United States has requested 9 that the Court permit the United States to defer disclosure of their identities until two 10 11
business days prior to the day they are scheduled to testify. See United States' Motion to

12 Empanel Anonymous Jury and Delay Disclosure of Witness Names and Places of Abode 13 (Dkt. 960) at 15-16. 14

Defendants' Motion for Leave to File Additional Discovery Motions (Dkt. 794), the

15 United States' Response (Dkt. 864) and Defendant's Reply (Dkt. 913). 16 17 18 by motion basis in connection with motions filed in the future.

Both parties agree that this motion is not ripe, since it is best dealt with on a motion

19 Defendants' Motion for Discovery of All Recorded Telephone Conversations of 20 Defendants While in Jail (Dkt. 795), the United States' Response (Dkt. 862) and
Defendants' Reply (Dkt. 902).

21 22
The parties agree that the United States is under no obligation to provide the non-

23 capital Defendants with recorded jail calls that it does not intend to use in its case-in-chief. 24 25 26 require the United States to disclose recorded telephone calls from jail that Defendants have

With respect to the capital Defendants, the United States maintains that Rule 16 does not

27 attempted to hide from the United States by using someone else's booking number. 28
15

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1 Nonetheless, the United States agrees to allow the capital Defendants to copy, during 2 3
5 4 telephone calls their clients made at the Madison Street Jail Pod 6-4-(D). Defense counsel

regularly scheduled defense evidence review sessions at the Phoenix FBI office, recorded

5 agree that neither they nor their staff will listen to or record calls of any person who is not 6 7

a defendant in this case. Defendants also maintain that the United States is required to locate

8 recorded telephone calls the capital defendants have made from jail, and to disclose those 9 telephone calls to Defendants, regardless of whether they used another inmate's booking 10 th 11
number when making these calls. Ongoing 4 Ave. Jail intercepted calls are being provided

12 to the defense on a regular basis through the Phoenix FBI office, SA Scott Meloche, upon 13 agreement of the parties. Both sides will assess the rate of disclosure and mechanics of this 14 6
arrangement on an ongoing basis and readdress the issue as needed with the Court. Thus,

15 16 while the parties have made some progress resolving this issue, whether the United States 17 must identify and disclose all telephone calls in its possession that Defendants made using 18
other inmates' booking numbers remains in dispute. On April 22, 2005, the United States

19 20 filed a sur-response (Dkt. 1022) pursuant to this Court's April 1, 2005 Order (Dkt. 987) 21 directing the United States to respond to Defendants' proposal that the United States provide 22 23 24 25 26 27 28
The United States has advised Defendants, however, that because calls must be recorded in real time, only a small percentage of recorded jail calls can be copied before trial using this method. The parties are aware that the Court explicitly separated the issue of disclosure of recorded jail telephone conversations from its March 30, 2005 Order (Dkt. 982). Nonetheless, the parties advise the Court with respect to agreements that have been made regarding this issue.
16
6 5

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1 Defendants with all recorded telephone calls of all inmates housed in Pod 6-4-D at Madison 2 3 4
Street Jail (the "jail"). The Defendants do not believe that the information provided by the government in its

5 sur-response is accurate and Defendants intend to file a sur-reply. 6 7 States' Response (Dkt. 868 at 53). 8 9

Defendants' Motion for Complete Rule 16(a)(1) Disclosure (Dkt. 796) and the United

The United States agrees to provide all conclusive test results of physical or trace

10 evidence relevant to this case that were performed and that it receives. The parties recognize 11 that there are two categories of outstanding physical evidence trace analyses conducted by 12 13 14 15 16 17 18
The defense requests a deadline 9 months before trial for all Fed. R. Crim. P.16 the United States for which results have yet to be received: A. B. DNA analyses of the contents of the Thunderbird; and Ballistics tests of casings and firearms found at the Aaron Romero murder scene.

19 physical evidence and test results. The United States asserts that it has disclosed all Rule 16 20
material in its possession to Defendants or the Court, and that it recognizes its continuing

21 22 duty to disclose. The United States argues that it is entitled to continue its investigation and 23 that the Court should not automatically exclude Rule 16 material that the United States may 24
yet discover as a result of its continuing investigation. Thus, the parties submit this issue to

25 26 the Court for resolution. 27 Defendants' Notice of Request for Production of Statements and/or Jencks Act Material 28 (Dkt. 797).
17

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1 2 3 5 6

Defendants' notice does not request this Court to take any action and, therefore, no point of contention exists for the Court to resolve with respect to this notice.

4 Defendants' Motion for Production of Material, Exculpatory Evidence (Dkt. 800) and
the United States' Response (Dkt. 868 at 41). Defendants request this Court to order the United States to disclose a variety of

7 information on the basis that such information contains Brady material. The United States 8 9
responds that it is aware of its obligations under Brady and will comply with the mandates

10 of Brady and its progeny. The United States further argues that general assertions that a class 11 of material might contain Brady information are insufficient to obtain an order compelling 12 13
the United States to provide a particular item pursuant to Brady, and that for the defense to

14 obtain such an order, it must first identify the particular item with specificity and make a 15 threshold showing that the item contains exculpatory information. The defense disagrees and 16
argues that Brady requires the United States to disclose all of the material Defendants request

17 18 in their motion. 19 20 21 22 a number of other suspects in the murder, no State charges have ever been filed against Luis 23 Cisneros for the murder of Aaron Romero, and substantial evidence has already been located 24
in State and local enforcement files pointing to other suspects as being responsible for the The defense further asserts that it has made a specific request for exculpatory evidence regarding the Aaron Romero murder due to the fact that State and local agencies developed

25 26 Romero murder. The defense requests the Court issue an order detailing the obligation of 27 the Government to review the requested witness interviews, police reports, physical 28
18

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1 evidence, and the other items specified as requested in A through J to ensure that complete 2 3
disclosure of exculpatory evidence has occurred. Defense requests this review and disclosure

4 be done within 30 days of this Court's order. 5 Defendants' Motion for Discovery of Exculpatory and Mitigation Evidence Related to 6 the Moreno Murders (Dkt. 801), the United States' Response (Dkt. 868 at 45) and 7 8
Defendants' Reply (Dkt. 906). The United States agrees to disclose exculpatory and impeachment material as Brady,

9 Giglio, and their progeny require. The United States and Defendants disagree, however, as 10 11 12 pages 5-9 of Defendants' motion. 13 Timing of Disclosures 14 15

to whether the United States is legally required to disclose the information requested on

The parties continue to be unable to agree on the timing of disclosure of material

16 related to this motion. Defendants continue to assert that the material requested in this 17 motion is immediately discoverable. The United States continues to assert that, if such 18
material constitutes Jencks Act material, it is not discoverable until after completion of that

19 20 witness' direct testimony. The United States further asserts that, even if such material does 21 not constitute Jencks Act material, such material should not be discoverable until, at the 22
earliest, three days before trial for non-endangered witnesses, and two business days prior

23 24 to the testimony of any endangered witness. 25 Distinct Issues Identified by the United States 26 27 28 disagree. The United States asserts that resolution of these few broader issues could, at once,
19

The United States has identified several distinct issues about which the parties

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1 resolve several of Defendants' specific requests. Defendants assert that the Court should 2 3 5 6 7
consider the specific requests made in their motion and objects to the inclusion of the section

4 below in this joint report.
The United States asserts that: 1) Defendants' motion raises the same issue discussed above (see footnote 3)

8 regarding whether the United States is responsible for information possessed by a 9 governmental entity other than an investigating federal agency. 10 11

2) Defendants' motion raises the same issue discussed in the section immediately

12 above (concerning Defendants' motion filed as Dkt. 800) regarding whether, to receive an 13 order compelling the production of certain material, Defendants must first make a threshold 14
showing that specific information they seek contains exculpatory evidence. If so, the United

15 16 States requests this Court to consider whether Defendants have made such a showing before 17 ordering the production of material they request. Defendants contend that they have made 18 19 20 if such evidence existed. 21 22 23 24 documents. Defendants list a number of items they request the United States to obtain and 25 disclose so that they may review such items for Brady material. The United States asserts 26 27 28 such items for Brady material.
20

a sufficient showing that the information they seek would constitute exculpatory evidence

3) The parties disagree as to whether Defendants have the right to compel disclosure of items so that they may conduct an independent review for Brady material within those

that Defendants are not entitled to discovery of items so that they may independently search

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1 2 3

4) The United States asserts that, if the Court decides the second or third above-listed issues in favor of the United States, the Court should deny without individually considering

4 Defendants' itemized requests. 5 Defendants' Motion for Discovery and Inspection re Informants and Motion for 6 Disclosure of Exculpatory Evidence and Notice to Government of Exculpatory Evidence 7 Response (Doc. 868 at 32), and Defendants' Reply (Doc. 909). 8 9
Concerning Government's Use of Informants (Dkt. 802), the United States' Omnibus

To the extent this motion overlaps with Defendants' motion filed at Dkt. 793, the

10 United States agrees to provide the same information set forth in the above discussion 11 regarding Defendants' motion filed as Dkt. 793. For the most part, however, the parties have 12 13

been unable to resolve the issues raised in this motion and rely on the arguments set forth in

14 their briefs. Nonetheless, the parties have identified general areas of disagreement related 15 to this motion. 16 17

For instance, Defendants list a number of categories of information they request this

18 Court to order the United States to provide for each witness, arguing that such information 19 constitutes impeachment material. 20 21 22 the United States must disclose general categories of alleged impeachment information with 23 respect to each of its witnesses, without any demonstration that this information exists with 24
respect to a particular witness, or that the information tends to impeach that witness, would The United States asserts: (i) what constitutes

impeachment material must be determined on a case by case basis; (ii) an advisory ruling that

25 26 be inappropriate; (iii) no general order setting forth what the United States must or must not 27 disclose with respect to each witness is necessary, as the United States is already obliged to 28
21

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1 disclose all Brady and Giglio material; and (iv) to compel disclosure of material that 2 3
Defendants allege impeaches a witness, Defendants should first be required to demonstrate

4 that the information sought actually exists with respect to a particular witness and that such 5 information would tend to impeach that witness under Giglio. Defendants assert that they 6 7 9 10 11 8 impeachment evidence.
Defendants also assert that the United States has a duty to search for potential impeachment information related to its witnesses, such as whether that person has ever been

have made the requisite showing that, if such information existed, it would constitute

12 admitted to a psychiatric hospital. The United States argues that it has no duty to conduct 13 an exhaustive search for impeachment information pertaining to each of its witnesses, 14
particularly when the United States has no reason to believe such information exists.

15 16 Defendants argue that the government has made no search at all ­ much less an exhaustive 17 search ­ for such impeachment evidence. 18 19 20 its favor, the Court should deny without individually considering Defendants' itemized 21 requests. Defendants disagree and argue that the Court should individually consider each of 22 23 24 obligation to disclose impeachment information pursuant to Giglio and its progeny, the 25 parties were unable to reach an agreement with respect to this motion. 26 27 28
22

The United States asserts that, if the Court decides any of the above-listed issues in

their itemized requests. As a result, other than the United States' acknowledgment of its

Timing of Disclosures

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1 2 3

The parties continue to be unable to agree on the timing of disclosure of material related to this motion. Defendants continue to assert that the material requested in this

4 motion is immediately discoverable. The United States continues to assert that, if such 5 material constitutes Jencks Act material, it is not discoverable until after completion of that 6 7
witness' direct testimony. The United States further asserts that, even if such material does

8 not constitute Jencks Act material, such material should not be discoverable until, at the 9 earliest, three days before trial for non-endangered witnesses, and two business days prior 10 11 12
to the testimony of any endangered witness. The Defendants request immediate disclosure of all Brady material, regardless of

13 whether it is impeachment evidence or not. 14 15 16 17

Defendants' Motion for Discovery under Rule 16 (Dkt. 805), the United States' Response (Dkt. 868 at 52) and Defendants' Reply (Dkt. 907). Defendants' motion again raises the issue discussed above (in discussion re Dkt. 793)

18 regarding whether the United States is responsible for information possessed by a 19 governmental entity other than an investigating federal agency. With respect to Defendants' 20 21 22 positions set forth in their briefs. 23 Timing of Disclosures 24 25 26 States represents that it will continue its investigation through the conclusion of trial in this 27 matter and that, pursuant to its continued investigation, it may continue to discover additional 28
23

itemized requests, the parties have been unable to reach an agreement and reassert the

The defense requests disclosure within 30 days of this Court's order. The United

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1 evidence. Therefore, the United States asserts that the admissibility of evidence the United 2 3
States has not yet disclosed should be determined on a case by case basis.

4 Defendants' Motion for Discovery of the Basis for the Government's Experts' Opinions 5 Defendants' Reply (Dkt. 917). 6 7
and Supporting Authority (Dkt. 806), the United States' Response (Dkt. 855) and

Defendants argue that, while the United States has substantially complied with its

8 obligations to disclose information with respect to its expert witnesses, the United States has 9 not fully complied. The United States asserts that it has adequately placed Defendants on 10 11 13 14 15
notice of potential expert testimony it has identified and that, as set forth in its Response, the

12 United States is not required to provide Defendants much of the information they request.
For example, Defendants assert that the basis of an expert's opinion includes all material for all instruction and training that form that expert's basis of knowledge. The

16 United States asserts that an expert's qualifications, as set forth in a résumé or other summary 17 of the expert's qualifications is sufficient. 18 19 20 will testify to a certain subject matter, for example, that a particular substance seized tested 21 positive for methamphetamine. Defendants assert that the United States must immediately 22
provide the name of this expert. The United States asserts that, in instances where an expert

Further, in some instances, the United States has informed Defendants that an expert

23 24 will testify to conclusions reached through a routine testing process, the identity of the person 25 who performed that process is not required to be disclosed at this stage. 26
Timing of Disclosures

27 28
24

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1 2 3

The defense requests disclosure within 30 days of this Court's order. The United States represents that it will continue its investigation through the conclusion of trial in this

4 matter and that, pursuant to its continued investigation, it may continue to discover additional 5 evidence. Therefore, the United States asserts that the admissibility of evidence the United 6 7
States has not yet disclosed should be determined on a case by case basis and with

8 consideration of case law on the issue of whether Defendants have been given adequate 9 notice. 10 11 12

United States' Proposed Resolution The United States asserts that it has provided defense with disclosure of expert

13 information sufficient to prepare their Daubert challenges and to determine which experts 14 15

they need to retain. The United States further asserts that remaining issues involving expert

16 witnesses can be resolved prior to trial through motions to exclude the testimony of various 17 experts based on alleged failures to comply with Rule 16. The defense objects to the 18 7
inclusion of this sentence in the joint report. The Defendants assert that the information with

19 20 respect to expert witnesses needs to be provided now so that Defendants can determine what 21 experts they need to retain and so that Defendants can file Daubert challenges where 22 23 24 25 26 27 28
During discussions related to this joint report, the parties realized that the issue of whether Rule 16 applies to sentencing has not been briefed. With respect to expert witnesses, then, an issue exists with regard to whether both parties are obligated to identify and provide the summaries and qualifications of experts the parties may call at sentencing. The parties propose to address this issue in supplemental briefs that the parties will file based on the following proposed schedule: Defendants will file their supplemental brief within 14 days after the filing of this joint report, the United States will file its response 10 days thereafter, and the Defendants will file their reply 5 days thereafter.
25
7

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1 applicable. In addition, Defendants assert that the parties need to know which experts will 2 3 4 simply because the government refuses to provide the requisite information.

ultimately testify at trial and there is no reason that this issue should remain unresolved

5 Defendants' Motion for Disclosure of Exculpatory and Impeachment Evidence (Dkt. 6 816), the United States' Response (Dkt. 868 at 47) and Defendants' Reply (Dkt. 916). 7 8 9
Defendants assert that the United States should be required to copy and provide to them additional recordings they claim are related to Counts 31 and 32. The United States has

10 made these recordings available for Defendants to review and will allow Defendants to copy 11 these recordings at their own expense. The United States asserts, however, that it has no 12 13 15 16 17 18 the United States agrees to provide such information. The parties were unable to reach a 19 resolution with respect to items 1, 4, and 9. 20 14 particularly when these additional recordings do not appear relevant to the present case.
To the extent the United States possesses Brady material that fits the description of material Defendants set forth in items 2, 3, 5, 6, 7, and 8 of their nine enumerated requests,

obligation to provide the labor and pay for the copying of these additional recordings,

Defendants' Motion for Inspection and Discovery of Information and Evidence in

21 Aggravation (Dkt. 820), the United States' Response (Dkt. 871), and Defendants' Reply 22 (Dkt. 922). 23 24 25 26 applies to any sentencing hearings that may occur in this matter. The parties agree that the 27 Court need not rule on this motion until completion of the supplemental briefing. 28
26

As set forth above in footnote 7, the parties propose to file supplemental briefs based on the above proposed briefing schedule in order to address the issue of whether Rule 16

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1 Defendants' Motion for Discovery on Capital Sentencing Issues (Dkt. 821) and the 2 United States' Response (Dkt. 870). 3 4 5
As set forth above in footnote 7, the parties propose to file supplemental briefs based on the above proposed briefing schedule in order to address the issue of whether Rule 16

6 applies to any sentencing hearings that may occur in this matter. The parties agree that the 7 Court need not rule on this motion until completion of the supplemental briefing. 8 9 Response (Dkt. 872) and Defendants' Reply (Dkt. 904). 10 11

Defendants' Motion for Disclosure of Personnel Files (Dkt. 822), the United States'

The parties continue to disagree over whether the United States is required to search

12 the personnel records of state law enforcement witnesses. The defense acknowledges the 13 Ninth Circuit's decision in United States v. Dominguez-Villa, 954 F.2d 562, 566 (9th Cir. 14 15
1992) ("district court exceeded authority by requiring review of personnel files of state law

16 enforcement witnesses"). However, the defense asserts that the Supreme Court's decision 17 in Kyles v. Whitley, 514 U.S. 419 (1995), effectively overruled Dominguez-Villa. The United 18
States asserts that Dominguez-Villa remains good law.

19 20
Defendants further assert that, if Brady material exists in an officer's file, Defendants While the United States

21 are entitled to read through that officer's personnel file. 22 23

acknowledges its duty to provide Defendants with any Brady material that may be contained

24 within the file of a federal law enforcement officer, the United States asserts that it has no 25 duty to allow the defense to examine these files. 26 27 28 listing the federal employees the United States anticipates may be called as witnesses in this
27

The United States has sent letters to the federal agencies involved in this investigation

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1 matter. In the letters, the United States requested each federal agency to provide the United 2 3
States with information about these individuals that shows any bias, prejudice, coercive

4 behavior, lack of credibility, suspensions, dishonesty, or any other relevant impeachment 5 evidence. Once the United States receives this information, it will evaluate it and disclose 6 7
any information that is discoverable under Brady and its progeny. If a good faith argument

8 could be made that certain information is discoverable under Brady, the United States will 9 disclose this material for the Court's in camera review, even if the United States does not 10 11

consider such information to be discoverable under Brady. The defense opposes this

12 procedure and requests the Court to order counsel for the United States to personally review 13 the personnel files of every federal and state law enforcement agent it intends to call as a 14
witness at trial.

15 16 Timing of Disclosures 17 18 19 20 issue. While the United States may disclose such impeachment material earlier, it asserts that 21 it should not be obligated to disclose such material more than three days in advance of trial 22
and objects to an Order compelling it to disclose such information before then. Defendants request the United States to disclose any impeachment material concerning its law enforcement witnesses within thirty days of the Court's Order on this

23 24 Defendants' Motion for Disclosure of Exculpatory and Impeachment Evidence Relating 25 26 27 28 will comply with Giglio and disclose impeachment information in its possession related to
28

to Alvarado (Dkt. 827), the United States' Response (Dkt. 868 at 39), and Defendants' Reply (Dkt. 905).

If the United States calls Defendant Alvarado as a witness at trial, the United States

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1 Defendant Alvarado. The United States agrees that, if Defendant Alvarado testifies, it must 2 3

disclose material information described in items 2, 3, 4, 8 and 9 of Defendants' motion. The

4 parties have not reached an agreement with respect to the remaining items in their motion 5 (items 1, 5, 7, and 10). With respect to these items, the parties rely on the arguments set forth 6 7 9 10 11
in their briefs.

8 Timing of Disclosures
Defendants request the Court to order the United States to immediately disclose the information they request in this motion. The United States asserts that, if it calls Defendant

12 Alvarado as a witness, it should not be required to disclose such non-Jencks material earlier 13 than two business days prior to his testimony. Further, the United States should not be 14 15 16 direct examination, should he testify. 17 18 19 20 21 22 23 24 25 26 27 28
S/ James J. Belanger (for) JOHN M. SEARS 107 North Cortez Street Prescott, Arizona 86301 (928) 778-5208 COUNSEL FOR LUIS CISNEROS
29

legally compelled to disclose Jencks material before the completion of Defendant Alvarado's

Respectfully submitted: October 3, 2005. By: S/ James J. Belanger (for) PETER SCHOENBURG Rothstein, Donatelli, Hughes, Dahlstrom & Schoenburg, LLP 500 Fourth Street NW, Suite 400 Albuquerque, New Mexico 87102 (505) 243-1443

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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 27 28
30

S/ James J. Belanger JAMES J. BELANGER Lewis & Roca LLP 40 North Central Ave., Suite 1900 Phoenix, Arizona 85004-4429

S/ James J. Belanger (for) BILLY R. BLACKBURN 1011 Lomas Blvd. NW Albuquerque, NM 87102 COUNSEL FOR ANGEL RIVERA

S/ Debra A. Hill DEBRA A. HILL Osborn Maledon, P.A. 2929 North Central Avenue, Suite 2100 Phoenix, Arizona 85012-2794 COUNSEL FOR FELIPE CISNEROS

S/ Gregory J. Fouratt GREGORY FOURATT STEVEN C. YARBROUGH Assistant United States Attorneys United States Attorney's Office 201 3rd Street, N.W., Suite 900 Albuquerque, New Mexico 87102-3305

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1 2

CERTIFICATE OF SERVICE I hereby certify that on October 3, 2005, I electronically transmitted the attached document

3 to the Clerk's Office using the CM/ECF system for filing and transmittal of a Notice of 4 Electronic Filing to the following CM/ECF registrants: 5 John Sears, Esq. 6 107 N. Cortez St. 7 8 500 4th St., NW, Ste. 400 9 Albuquerque, NM 87102 10 Billy Blackburn, Esq. 11 1101 Lomas, N.W. 12 13 2929 N. Central, Ste. 2100 14 Phoenix, AZ 85012 15 Carmen Fischer, Esq. 16 Phoenix, AZ 85003 17
45 W. Jefferson, Ste. 403 Larry Hammond and Debra Hill, Esqs. Kari Converse, Esq. 122 Tulane, SE Albuquerque, NM 87106 Dan Maynard, Esq. 1800 Great American Tower 3200 N. Central Ave. Phoenix, AZ 85012 Michael Terribile, Esq. 111 W. Monroe, Suite 1650 Phoenix, AZ 85003 Joseph St. Louis, Esq. 216 N. Main Ave. Tucson, AZ 85701-7202 Peter Schoenburg, Esq. James Belanger, Esq. 40 N. Central Ave., Ste. 1900 Phoenix, AZ 85004 Greg Kuykendall, Esq. 145 S. 6th Ave. Tucson, AZ 85701 James Park, Esq.

111 W. Monroe, Ste. 1500
Phoenix, AZ 85003

Prescott, AZ 86301

Albuquerque, NM 87102-1952

18 Michael Bernays, Esq. 19 111 W. Monroe St., Suite 1650
Phoenix, AZ 85003 Barbara Hull, Esq.

20 21 86 W. University Dr., Ste. 101A 22 Mesa, AZ 85201-6666 23 Joe Romero, Jr., Esq. 24 1905 Lomas, NW 25 26 27 28

Albuquerque, NM 87104-1207

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