US vs. Halgat: Government's Response To 2nd OGC Motion

Case 2:13-cr-00239-JAD-PAL Document 191 Filed 06/20/14 Page 1 of 41
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DANIEL G. BOGDEN
United States Attorney
CRISTINA D. SILVA
ANDREW W. DUNCAN
Assistant United States Attorneys
333 Las Vegas Blvd. South, Suite 5000
Las Vegas, Nevada 89101
(702) 388-6336 (Telephone)
(702) 388-6418 (Fax)
UNITED STATES DISTRICT COURT

DISTRICT OF NEVADA
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UNITED STATES OF AMERICA,
Plaintiff,
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vs.
JEREMY HALGAT,
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Defendant.
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Case No.: 2:13-cr-00241-APG-VCF

2:13-cr-00239-JAD-PAL
RESPONSE TO DEFENDANTS MOTIONS
TO DISMISS FOR OUTRAGEOUS
GOVERNMENT CONDUCT, AND
SUPPLEMENT FILINGS
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COMES NOW the United States of America, by and through DANIEL G. BOGDEN,
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United States Attorney, and Andrew W. Duncan and Cristina D. Silva, Assistant United States
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Attorneys, and files response in opposition to defendants motion to dismiss the indictment in the
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above-captioned case based upon alleged Aoutrageous government conduct,@ or in the alternative,
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based on the Courts supervisory powers which was filed in both of defendants pending cases.
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Docs. #59, #93 (2:13-cr-241-APG-VCF); Doc. #188 (2:13-cr-239-JAD-PAL). In case number 2:13-
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cr-241-APG-VCF the motion to dismiss was filed by defendant Jeremy Halgat on March 31, 2014,
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by and through his counsel Melanie Hill, Esq. The Government also responds herein to defendants
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untimely supplement to the motion to dismiss in case number 2:13-cr-241, which was filed on June
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4, 2014. Doc. #94. In case number 2:13-cr-239-JAD-PAL, the motion to dismiss was filed on June
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17, 2014. Doc. #188. For the reasons set forth below the United States respectfully requests that the
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Court deny the motion in both cases.
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TABLE OF CONTENTS
TABLE OF AUTHORITIES ............................................................................................................... ii
I.
FACTUAL BACKGROUND ...................................................................................................... 1
1.
Background of the Vagos Motorcycle Gang ............................................................................ 1
2.
Operation Pure Luck................................................................................................................. 4

a. Summary of Facts Related to United States v. Udell Wickham and Jeremy Halgat (2:13-cr00241-APG-VCF) ....................................................................................................................... 5
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b. Summary of Facts Related to United States v. Jeremy Halgat (2:13-cr-239-JAD-PAL) .......

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3.
Other Relevant Facts .............................................................................................................. 11
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II.
ARGUMENT............................................................................................................................. 12
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1.
The indictment should not be dismissed for outrageous government conduct....................... 12
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a. The legal standard used to assess claims of outrageous government conduct is a stringent
standard that is rarely satisfied. ................................................................................................. 12
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b. An outrageous government conduct finding turns on each individual cases facts. ........... 14
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c.
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2.
Defendants reliance on the recent Black and Hudson decisions is misplaced. ................. 15
The indictment should not be dismissed based on unsubstantiated allegations of misconduct25
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a.
Officers and Agents Involved in the Investigation Did Not Falsify Reports...................... 25
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b. The allegations of audio editing, deleting or other purposeful destruction are

unsubstantiated and do not provide basis for dismissing the case ............................................. 28
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3. There is no basis for conducting an evidentiary hearing regarding Defendant=s claim of

outrageous government conduct .................................................................................................... 35
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III. CONCLUSION ......................................................................................................................... 36
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TABLE OF AUTHORITIES
Denial of the Petitions for Panel Rehearing and Rehearing En Banc, 2014 WL 1810699 .............. 16
Greene v. United States, 454 F.2d 783 .............................................................................................. 13
Hampton v. United States, 425 U.S. 484 (1976) ................................................................................ 12
In re Dep't of Investigation, 856 F.2d 481 ......................................................................................... 32
Sorrells v. United States, 287 U.S. 435.............................................................................................. 15
Tuite v. Henry, 181 F.R.D. 175 .......................................................................................................... 32
Tuite v. Henry, 203 F.3d 53 ............................................................................................................... 32
United States v. Bagley, 473 U.S. 667 ............................................................................................... 26
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United States v. Black, 733 F.3d 294 ......................................................................................... passim
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United States v. Bogart, 783 F.2d 1428 ....................................................................................... 14, 15
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United States v. Bonanno, 852 F.2d 434 ...................................................................................... 15, 16
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United States v. Cuellar, 96 F.3d 1179 .............................................................................................. 13
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United States v. Emmert, 829 F.2d 805 (9th Cir. 1987) ................................................... 13, 14, 19, 21
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United States v. Franco, 136 F.3d 622 .............................................................................................. 26
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United States v. Gurolla, 333 F.3d 944 (9th Cir. 2003) ..................................................................... 12
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United States v. Howell, 231 F.3d 615............................................................................................... 35
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United States v. Hudson, 2014 WL 960860 ................................................................15, 15, 17, 18, 21
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United States v. Lane, 514 F.2d 22 .................................................................................................... 26
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United States v. Luttrell, 889 F.2d 806 (9th Cir. 1989) ......................................................... 13, 23, 24
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United States v. McClelland, 72 F.3d 717 ......................................................................................... 12
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United States v. Molina, 934 F.2d 1440............................................................................................. 12
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United States v. Mosley, 965 F.2d 906 (10th Cir. 1992) .................................................................... 14
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United States v. Prairie, 572 F.2d 1316 (9th Cir. 1978) .................................................................... 13
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United States v. Reynoso-Ulloa, 548 F.2d 1329 (9th Cir. 1977) ....................................................... 14
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United States v. Russell, 411 U.S. 423 ............................................................................. 12, 13, 14, 15
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United States v. Ryan, 548 F.2d 782 (9th Cir. 1977) ......................................................................... 12
United States v. Simpson, 813 F.2d 1462 (9th Cir. 1987) ............................................................ 13, 22
United States v. Slaughter, 891 F.2d 691 (9th Cir. 1989) ............................................................ 13, 22
United States v. Smith, 802 F.2d 1119 ................................................................................... 12, 14, 20
United States v. So, 755 F.2d 1350 .................................................................................................... 15
United States v. Sotelo-Murillo, 887 F.2d 176................................................................................... 12
United States v. Stinson, 647 F.3d 1196 ............................................................................................ 25
United States v. Swiatek, 819 F.2d 721 .............................................................................................. 35
United States v. Walczak, 783 F.2d 852............................................................................................. 35
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United States v. Wiley, 794 F.2d 514 (9th Cir. 1986) ........................................................................ 13
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United States v. Wingender, 790 F.2d 802......................................................................................... 14
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United States v. Winner, 641 F.2d 825 .............................................................................................. 32
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United States v. Winslow, 962 F.2d 845 (9th Cir. 1992)........................................................ 13, 14, 20
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I.
FACTUAL BACKGROUND
The instant charges are a result of a multi-year undercover investigation into the Vagos
Outlaw Motorcycle Gang (OMG). Due to the extended nature of the investigation, the
Government amassed a significant factual background on both the Vagos organization and the
Vagos members engaged in criminal conduct. To properly reflect the totality of the facts
surrounding the instant case, the Government provides the following information.
1. Background of the Vagos Motorcycle Gang
The Vagos OMG is an organization that in recent years has expanded both in the United
States and internationally. The Vagos membership includes members or former members of a large
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number of street gangs. The Vagos organization is comprised of approximately sixty identified
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chapters. The chapters are located in different geographical regions, although most are located
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within the Central District of California. The Vagos also have chapters in Oklahoma, Texas,
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Pennsylvania, Illinois, Arkansas, Missouri, Nevada, Oregon, New York, Utah, Arizona, New
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Mexico, Mexico, Canada, Nicaragua, and Sweden.
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The leadership and governing body of the Vagos are its National Officers. The National
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Officers exercise authority over the actions of individual Vagos members and the regional
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chapters. Vagos pay money to the National Officers in the form of fees, dues and taxes. Those
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funds are used, in part, to fund and promote the organization and pay for the legal expenses of
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Vagos members when they are prosecuted for committing crimes on behalf of the organization. The
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National Officers collect and review all membership applications and fees for membership,
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resolve disputes within the organization, and issue incentives, such as tattoos and Vagos patches that
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honor Vagos members for committing acts of violence on behalf of the Vagos, incurring physical
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injury on behalf of the Vagos, or performing specific sexual acts at Vagos events.
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The National Officers are comprised of Vagos members from different Vagos chapters in
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California. There are also National Regional Representatives and National Regional Sergeant at
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Arms positions for approximately 18 Vagos geographical regions. The National Regional positions
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are elected annually by a vote in the respective Vagos regions. Vagos National Officers utilize
both the National Regional Representatives and National Regional Sergeant at Arms to receive
information and/or deliver orders and information to the Vagos membership. Chapter officers,
chapter members, National Regional Representatives and National Regional Sergeant at Arms
may be invited or ordered to present issues to the National Officers. However, they are not
permitted to share in the deliberations of the National Officers, and the National Officers
decisions are binding on the regional chapters. Lower-ranking members and prospective Vagos
members are required to patrol and provide armed security against the presence of law enforcement
and rival gang members outside the Vagos National Officers Meetings.
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Regional Vagos chapters are directed by chapter presidents and chapter officers. These
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officers include the chapters President, Vice-President, Secretary/Treasurer, and its
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Sergeant-at-Arms. The Sergeant-at-Arms is required to maintain security for his chapter, and
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enforce the orders of the Chapters President. The Sergeant-at-Arms is required to maintain
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records of membership applications, and photographs of chapter members. The S.A.A. also oversees
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the evaluation of prospective members.
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Vagos gang members also enforce the authority of the gang by conspiring to direct attacks
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against rival motorcycle gangs, such as the Hells Angels, the POBOBs and the Bandidos, as
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well as members of the general public who might defy or unwittingly come into contact with the
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Vagos in a way that might be deemed disrespectful to the organization. Persons in conflict with or
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who might be perceived to have shown disrespect to the gang may be beaten severely or even killed
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by being kicked repeatedly with steel-toed boots, stabbed, or shot. The organization also directs
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attacks against witnesses who are willing to cooperate with law enforcement for the prosecution of
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the crimes committed by members of the Vagos, and the organization frequently pays for the legal
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representation of members who commit crimes, such as assaults and murders, on behalf of the
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Vagos. The Vagos gang ordinarily is vigilant to the presence or arrival of rival gang members, and
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will frequently travel to areas claimed by rival gangs in order to provoke a confrontation with them.
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Vagos are likely to identify such persons and threaten to beat or kill them if they do not surrender
indicia identifying support for a rival gang.
The Vagos frequently exhibit their membership or association with the gang by wearing
gang vests, shirts, hats, jewelry, and tattoos displaying the identified images of the Vagos gang. The
most prominent image is that of Loki, the Norse God of Mischief, above a single motorcycle tire
with a green wing attached. Loki appears to be holding a banner (top rocker) with the gang name
(Vagos) on it. Members also typically display a patch that identifies the regional chapter to which
the member belongs, such as Clark County, Vegas Valley, Sin City and other regional areas. Vagos
officers also will frequently bear patches that indicate that they are officers in the gang.
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Additionally, the National Officers will approve of and reward members who have distinguished
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themselves within the organization by presenting them with specific patches. Historically, the Vagos
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National Officers or a chapter President may award a specific Vagos member an MF or Loki
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Head diamond shaped patch to those members who have committed murder or engaged acts of
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violence on behalf of the Vagos.
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Vagos frequently refer to one another as brothers and the organization as a brotherhood.
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Leaders of the Vagos gang recruit and initiate new members into the organization through a
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structured application, vetting, and probationary process that is directed and coordinated through the
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National Officers. Potential members must be sponsored by existing members and demonstrate
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their obedience and loyalty to the Vagos organization. They are then required to complete a written
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application, which is reviewed and researched by private investigators. The focus of the
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investigation is to preclude the membership of individuals with any connection to law enforcement
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or who might expose the crimes of the organization to law enforcement. Once he has passed the
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process, the potential member may be accepted as a prospective member, or Prospect. He is given
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a vest and patches, which identify him as a Vagos Prospect. The Prospect is then assigned to
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perform duties for the Vagos members, including providing armed security, storing weapons and
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narcotics, and transporting Vagos leaders. The Vagos have established a 6 month minimum time
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period for the Prospect phase of Vagos membership.
The Vagos maintain a ready supply of firearms, including handguns, shotguns, and semi-
automatic assault rifles in order to enforce the authority of the gang. Such weapons often are stolen
or unregistered so that the use of the weapons cannot be readily connected to the gang member who
either used the weapon or maintained the weapon. Therefore, gang leaders and members frequently
need to maintain a source of supply for additional unregistered or non-traceable firearms. The Vagos
leadership also controls the activities of its members and enforces its authority and internal
discipline by assaulting and threatening its own members or others who would present a threat to the
organization or its leadership. A member who is out bad may be required to forfeit his property,
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especially his motorcycle, and is subject to attack by active Vagos members. The Vagos maintain
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written By-Laws of the organization, which set forth the rules of membership and a code of
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conduct for the organization, as well as penalties for non-compliance with the rules of the
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organization.
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2. Operation Pure Luck
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In April, 2010, a confidential informant (hereinafter CI-1), who was a member of the
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Vagos agreed to cooperate with law enforcement and introduce ATF undercover personnel to the
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Vagos Clark County, Nevada chapter. To accomplish this, CI-1 facilitated the introduction of Task
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Force Officer (TFO) Agostino Brancato to Vagos members. From August of 2011 through
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December of 2011, TFO Brancato began the hang around phase as an initial step in the infiltration
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of the Vagos.
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From December of 2011 through July of 2012, TFO Brancato was a Vagos Prospect for
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the Clark County chapter. In July of 2012, TFO Brancato became a full patch member of the Vagos.
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Beginning in July of 2012, TFO Brancato held the position of Sergeant-at-Arms for the Clark
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County Vagos chapter. Since April of 2010, CI-1 and TFO Brancato participated in numerous
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operations where CI-1 or TFO Brancato purchased narcotics and/or illegal firearms from Vagos
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members. As a result of the investigation, over 20 individuals were indicted in both federal and state
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court.
During the undercover operation, TFO Brancato observed Defendant Jeremy Halgat both
discuss and engage in criminal conduct. See generally Governments Exhibit 1, Report of
Investigation (ROI) 52 December 9, 2011 (TFO Brancato observing Halgat and another person
discussing purchasing 8-ball of methamphetamine); Governments Exhibit 2, ROI 119 May 15,
2012 (Halgat telling TFO Brancato that he was once the victim of a narcotics robbery when he
previously worked as a drug courier); Governments Exhibit 3, ROI 123 May 18, 2012 (Halgat
once again sharing his experiences as a drug courier, specifically discussing transporting and selling
narcotics); Governments Exhibit 4, ROI 152 August 10, 2012 (TFO Brancato observing Halgat
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and Udell Wickham exchange currency for purported cocaine [note: this is prior to undercover
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purchases which relate to charges in case number 2:13-cr-2341-APG-VCF]. During the same
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meeting, Brancato observes Halgat and other Vagos members snorting the purported cocaine
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through his nose); Governments Exhibit 5, ROI 154 August 11, 2012 (Halgat is observed
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removing a large, clear plastic baggie filled with a substance consisted with narcotics and
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distributing to another Vagos member). These examples are in addition to the criminal activity that
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resulted in the two indictments against Defendant Jeremy Halgat. The take-down of the undercover
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operation called Pure Luck took place in June of 2013. As a result of the investigation, Halgat was
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indicted in two cases. One case (2:13-cr-00241) resulted from four cocaine sales to TFO Brancato.
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The second case (2:13-cr-239) resulted from an undercover drug transaction where Halgat, Anthony
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McCall, and Robert Morrow provided armed security. The facts of those two cases follow.
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a. Summary of Facts Related to United States v. Udell Wickham and Jeremy

Halgat (2:13-cr-00241-APG-VCF)
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On September 19, 2012, ATF Task Force Officer (TFO) Brancato (hereinafter Brancato)
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purchased one ounce of cocaine from Halgat and Udell Wickham. See generally Doc. #44-1
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(Exhibit containing relevant Report of Investigation [ROI]). Id. On that date, Brancato arranged to
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meet with Halgat via text message. Id. The purpose of the meeting was to discuss the purchase of
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powder cocaine from Wickham. Id. Brancato arranged for the meeting to take place at Brancatos
undercover residence. Id. At approximately 1445 hours, Halgat arrived at Brancatos undercover
residence. Id. Once inside the residence, Brancato and Halgat sat at the kitchen table. Id. Both
parties discussed different options to purchase the cocaine from Wickham. Id. It was discussed in
previous conversations that Wickham stated he wanted TFO Brancato to pay $2800.00 in advance
for a quarter pound of cocaine. Id. TFO Brancato asked Halgat if Wickham could sell a smaller
amount of cocaine without requiring payment first. Id. Halgat stated he would ask Wickham. Id.
Halgat picked up his cell phone and texted Wickham. A short while later, Halgats cell phone
received a text message. Id. Halgat notified TFO Brancato that Wickham was able to sell one ounce
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of cocaine for $800.00. Id. TFO Brancato arranged to pick up Halgat at his residence, at 1800 hours,
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and then drive to meet Wickham and purchase the cocaine. Id. Halgat agreed, and at approximately
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1550 hours, Halgat departed from TFO Brancatos residence. Id.
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Later that day, TFO Brancato went to Halgats residence and picked him up. Id. TFO
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Brancato asked Halgat, Where we going? Halgat instructed TFO Brancato to drive to the Hooters
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restaurant on Rainbow and the 215 freeway. Id. Halgat explained that Wickham would meet them to
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complete the cocaine transaction. Id. While driving to the Hooters restaurant, TFO Brancato
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provided Halgat with $800.00 of ATF funds. Id. Halgat accepted the money, placing it in his left
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pants pocket. Id. Once at the Hooters restaurant, TFO Brancato observed Wickham sitting in the
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outside patio area with another individual, identified as K.A. Id. Halgat instructed Brancato that
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they would get a table in the dining area. Id. After ordering food and drinks, Wickham joined
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Brancato and Halgat at their table. Id. At this time, Brancato observed K.A. sit in the bar area of the
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establishment, providing what appeared to be security for Wickham during the narcotics
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transaction. Id. Halgat, Wickham and Brancato discussed the pending purchase of the quarter pound
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of cocaine. Id. Wickham stated, I wouldnt front the money either. Id. Halgat instructed Wickham
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to set himself up in order for sales of quarter pounds of cocaine to take place in the future. Id. A
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conversation ensued during which it appeared Wickham understood Halgat and Brancatos intent to
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purchase larger quantities of cocaine. Id. Wickham stated, Ill give you this one for $700.00.
Wickham asked Halgat, Where you want to do it at, the Bano? (Spanish for Bathroom). Id. Halgat
replied, Yes. Id. Prior to leaving the table, Halgat returned one hundred dollars of the eight
hundred dollars, which Brancato previously provided to Halgat to purchase the cocaine. Id. As
Halgat returned the $100.00 he told Brancato, Here, you can pay for dinner. Id. Wickham then
stood up from the table and said good-bye to Brancato and Halgat and Wickham walked to the
mens restroom. Id. TFO Brancato observed K.A. keep Wickham in constant eye contact as
Wickham walked to the restroom with Halgat. Id. Halgat returned to the table and Brancato and
Halgat subsequently departed the restaurant. Id.
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Once inside Brancatos undercover vehicle, Halgat reached into his left front pants pocket
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and handed TFO Brancato a purple Crown Royal bag. Id. Brancato took possession of the Crown
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Royal bag and its contents. Brancato attempted to provide Halgat with fifty dollars for facilitating/
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brokering the cocaine transaction. Id. Halgat stated, Dont worry about it, you paid for my dinner
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and you can just get me on the back end. (Indicating that Halgat would take payment from
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Brancato after the purchase of a quarter pound of cocaine). Id. Once back at Halgats residence,
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while Halgat was still present, Brancato removed the contents of the Crown Royal, which
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consisted of a clear plastic bag, containing an off white substance, resembling cocaine. Id. Brancato
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weighed the purported cocaine. Id. The purported cocaine had a gross weight of 29 grams. Id.
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Halgat stated he would tell Wickham the weight was exactly one ounce. Id. At approximately 2010
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hours, both parties said good-bye and Halgat exited Brancatos undercover vehicle. Id.
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On October 11, 2012, Brancato made a second one ounce purchase of cocaine from Halgat
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and Wickham. See generally Doc. #44-2 (Exhibit containing relevant ROI). The transaction
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occurred at Michaels Pub in Las Vegas, NV. Id. The only difference between this purchase and the
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September 19, 2012, purchase was that Wickham handed the cocaine directly to Brancato on this
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occasion. Id.
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On October 12, 2012, Brancato made a third one ounce purchase of cocaine from Halgat and
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Wickham. See generally Doc. #44-3 (Exhibit containing relevant ROI). This purchase had been
arranged the previous day during the sale of one ounce of cocaine. Id. This controlled purchase also
occurred at Michaels Pub and was nearly identical to the prior days deal. Id.
On October 26, 2012, Brancato made a fourth one ounce purchase of cocaine from Halgat
and Wickham. See generally Doc. #44-4 (Exhibit containing relevant ROI). The deal again
happened at Michaels Pub. Id. However, this transaction resembled the first cocaine sale because
Wickham gave the cocaine to Halgat who then later gave it to Brancato. Id.
b. Summary of Facts Related to United States v. Jeremy Halgat (2:13-CR-239JAD-PAL)
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On February 22, 2013, ATF undercover TFO Brancato met with the Vagos Sin City Chapter
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President Anthony Uncle Tony McCall (McCall), Sin City Chapter Vice-President Robert
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Bob Morrow, and Halgat. See generally Governments Exhibit 6, ROIs of Investigation in
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chronological order, Bates # HALGAT00123-HALGAT00126. The meeting was held at Brancatos
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undercover residence to discuss the possibility of McCall, Morrow and Halgat providing armed
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security during what they believed to be an illegal cocaine transaction. Id. The transaction was
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actually an ATF reverse-sting where the illegal cocaine transaction was staged. Id.
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On February 22, 2013, at approximately 6:54 p.m., Morrow and McCall arrived at
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Brancatos undercover residence. Id. at Bates # HALGAT00123. TFO Brancato asked Morrow if
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McCall had explained the reason for the meeting. Id. Morrow advised that McCall had informed
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him of the reason for the meeting. Id. TFO Brancato, continuing in his undercover capacity,
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explained to Morrow and McCall that he was a cocaine courier for a Mexican cartel and explained
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that he transports 10 to 20 kilograms of pure cocaine to Georgia every month. Id. TFO Brancato
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stated he needed a hired gun to watch his back while he received the kilograms of cocaine from
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another Mexican cartel member. Id. TFO Brancato advised that the transaction would take place in
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the Las Vegas area. Id. at Bates # HALGAT00124.
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At approximately 7:02 p.m., Halgat arrived at the residence. Brancato once again explained
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the operation to McCall, Morrow and Halgat. Id. Brancato stated once again that he needed a hired
gun on March 2, 2013 while he took possession ofat a minimum10 kilograms of pure cocaine.
Brancato asked Halgat if he was available. Id. Halgat replied, Absolutely. Id. Brancato explained
he would pay each of them $1,000.00 to watch his back during the transaction. Id. McCall asked
if Halgat had hardware (street vernacular for firearms) for Morrow. Id. Halgat replied, I have
lots. Id. During the conversation setting up the undercover operation, Halgat asked Brancato how
heavy you want us to roll? Id. Brancato replied, whatever you guys are comfortable with. Id.
Brancato explained he would be armed with a gun due to the street value of the large amount of
cocaine. Id. McCall stated that he possessed a shotgun and pistols, but Morrow did not have a gun.
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Id. Halgat advised that he had plenty of tools (street vernacular for firearms). Id.
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After additional conversation ensued, Brancato then asked the three co-conspirators if
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$1,000.00 was enough for each of them as payment for their assistance for their assistance with the
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transaction. Id. All parties replied, Yes. Brancato explained he would pay each individual the day
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of the transaction. Id. Additional plans were made to assist with the transaction. Id. Halgat invited
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Morrow and McCall to Halgats new shop to discuss plans for their assistance with the operation
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instead of doing it the morning of the transaction. Id. at Bates # HALGAT00125. Brancato told the
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defendants that they would have to be at his residence on the morning of March 2, 2013 to assist
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with the operation. Id. Halgat, Morrow and McCall agreed to meet the night before the transaction
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in order to pick which firearms to bring to the operation. Id.
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On March 2, 2013, at approximately 8:30 a.m., Morrow and Halgat arrived at Brancatos
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undercover residence. Id. at Bates # HALGAT00127-HALGAT00131. After engaging in general
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conversation in the garage of the residence, Halgat exited and walked to Morrows vehicle, which
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was parked at the curb in front of the undercover residence. Id. at Bates # HALGAT00128. Halgat
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returned to the garage carrying a large silver case. Halgat opened the case, at which time Brancato
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observed an AK-47 rifle and a pistol grip shotgun. Both firearms appeared to be operable and in
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good working order. Id. After more discussion, Halgat asked Brancato, where we going? Brancato
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replied, Searchlight. Id. Morrow asked Brancato for a portable ashtray because he did not want to
leave his cigarette butts at the scene. Id. Brancato stated he was going to need help loading, referring
to the kilograms of cocaine. Id. At approximately 9:00 a.m., McCall arrived at the residence. Id.
Morrow asked McCall, You got what you need? Id. McCall replied, Yes. Id. at Bates #
HALGAT 00129. Brancato observed a holstered pistol on McCalls left hip, as well as the outline of
a smaller revolver protruding from McCalls right front pants pocket. Id. Morrow informed McCall
that he would help Brancato load the cocaine because McCall and Halgat shoot more recent than I
have. Id. McCall asked what firearms Halgat brought. Id. Morrow informed McCall that Halgat
brought a rifle and a shotgun. Id. Morrow asked McCall what did you bring? Id. McCall
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replied, I just brought my 44. Id. Halgat stated he brought 160 rounds for the AK and a box of
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shells for the shotgun. Id. Halgat stated even if things go sideways, were not going to be there
12
that long. McCall stated, I brought my little .357 just in case as he placed his right hand over his
13
right front pants pocket. Id.
14
At approximately 9:15 a.m., the group left the undercover residence and proceeded to the
15
airstrip in Searchlight, Nevada. Id. at Bates # HALGAT00130. Brancato drove and parked his
16
vehicle at the end of the runway, awaiting the arrival of Detective Camuy, who was acting in an
17
undercover capacity, to complete the cocaine transaction. Id. Once at the end of the runway,
18
Morrow put the black latex gloves on his hands. Id. Brancato placed a scale and a box of fabric
19
softener sheets on the tailgate of the undercover truck. Id.
20
At approximately 10:20 a.m., UC Detective Camuy (Camuy) arrived in a Cessna airplane.
21
Id. Halgat retrieved both firearms from the suitcase, handing the shotgun to McCall. Then, McCall
22
and Halgat stood at the front of Brancatos vehicle and looked and stood facing the direction of the
23
highway towards the entrance of the airport, providing what they believed to be the previously
24
discussed armed security. Id. Camuy exited the airplane carrying a blue duffle bag and walked to the
25
bed of the truck and handed Brancato the duffle bag containing 10 kilograms of cocaine. Id. Both
26
parties greeted and participated in general conversation. Brancato told Camuy that he will call him
10
in a couple days after the cocaine is delivered and Camuy returned to the airplane and departed the
airport. Id.
Brancato removed the 10 kilograms of cocaine from the duffle bag and weighed each one.
Morrow and McCall wrapped each kilogram of cocaine in fabric softener sheets. Id. After the
cocaine was wrapped, Brancato placed it in a secret compartment of his undercover vehicle. Id.
Halgat continued to provide armed security at the front of Brancatos undercover truck. Id.
After the ten kilograms of cocaine were loaded into the secret compartment of TFO
Brancatos undercover vehicle, Brancato counted out $1,000.00 of ATF undercover funds for the
defendants. Id. at Bates # HALGAT00131. Brancato and the defendants then drove back to Las
10
11
Vegas. Id.
3. Other Relevant Facts
12
The defendants were arrested for the aforementioned offenses on June 27, 2013. At the time
13
of his arrest, ATF served a federal search warrant at Anthony McCalls residence, 5260 Harmony
14
Avenue, Las Vegas, NV. During execution of the warrant, law enforcement agents seized numerous
15
firearms from McCalls residence. See generally Governments Exhibit 7. Law enforcement also
16
recovered large quantities of assorted ammunition in various calibers, firearms-related items, indicia
17
in the name of Anthony McCall, documents believed to be by-laws and records of the Vagos outlaw
18
motorcycle gang, and a cardboard box containing four glass vials of suspected liquid steroids and
19
syringes. Id. at Bates # HALGAT00697.
20
Law enforcement also executed search warrants at Jeremy Halgats home and office. See
21
generally Governments Exhibit 8. During execution of the warrants, agents recovered numerous
22
items demonstrating Halgats membership within the Vagos organization. Id. at Bates #
23
HALGAT00824. Agents also recovered several firearms and a silver long gun case. Id. at Bates #
24
HALGAT00824-HALGAT00825. The long gun case appears to be the same case Halgat carried
25
with him to the undercover narcotics transaction on March 2, 2013.
26
11
II.
ARGUMENT
1. The indictment should not be dismissed for outrageous government conduct.
a. The legal standard used to assess claims of outrageous government conduct

is a stringent standard that is rarely satisfied.
4
The Aoutrageous government conduct@ (AOGC@) defense is based upon violations of the Due
5
Process Clause of the Fifth Amendment to the United States Constitution. United States v. Russell,
6
411 U.S. 423 (1973). In Russell, the Supreme Court first enunciated that outrageous government
7
conduct occurs when the conduct of law enforcement agents is so outrageous that due process
8
principles would absolutely bar the government from invoking judicial processes to obtain a
9
conviction. 1 Id. at 431-32. Subsequently in Hampton v. United States, 425 U.S. 484 (1976), the
10
Court applied the Russell OGC standard and rejected petitioner=s claim that the government=s
11
conduct in both providing drugs to him and subsequently purchasing them from him was so
12
outrageous to principles of due process as to warrant dismissal.
13
Since the OGC defense was introduced in Russell, courts have sought to define its meaning.
14
For the governments actions to be deemed outrageous, their conduct must be so grossly shocking
15
[to the conscience] and so outrageous as to violate the universal sense of justice. United States v.
16
McClelland, 72 F.3d 717, 721 (9th Cir. 1995) (quoting United v. Smith, 924 F.2d 889, 897 (9th Cir.
17
1991)). Furthermore, dismissal of indictments premised on outrageous government conduct has
18
been limited to extreme cases in which the government's conduct violates fundamental fairness.
19
United States v. Gurolla, 333 F.3d 944, 950 (9th Cir. 2003). The Ninth Circuit acknowledged the
20
limited nature of such successfully argued OGC defenses with the observation that Athe due process
21
channel which Russell kept open is a most narrow one.@ United States v. Ryan, 548 F.2d 782, 789
22
23
24
25
26
Although OGC is sometimes referred to as a Adefense,@ it is not an affirmative defense in the same sense as
Aentrapment.@ See United States v. Sotelo-Murillo, 887 F.2d 176, 182 (9th Cir. 1989). Instead, this pseudo-defense is
more akin to an argument that due process principles bar the government from using the courts to obtain a
conviction. Id. The assertion of Aoutrageous government conduct@ requires a court to assess whether Constitutional
rights will be violated if a prosecution is allowed to proceed, thus it is a matter to be decided solely by the court and
not a jury. Id. Accordingly, a trial court may properly prohibit a defendant from presenting such a Adefense@ to a
jury during trial. See United States v. Molina, 934 F.2d 1440, 1447 (9th Cir. 1991).
12
(9th Cir. 1977).
Recognizing their proper role and mindful of the Supreme Courts admonition in Russell,
exceedingly few Federal courts have dismissed an indictment based upon an OGC defense; to the
contrary, most courts have upheld government conduct when presented with an OGC defense. Since
Russell and Hampton, many courts have discussed the defense but few have ever granted such a
dismissal. In fact, only once has the United States Court of Appeals for the Ninth Circuit (ANinth
Circuit@) reversed a conviction on the basis of outrageous government conduct, and that decision
predated both Russell and Hampton. See Greene v. United States, 454 F.2d 783 (9th Cir. 1971). This
single reversal by the Ninth Circuit stands in stark contrast to the litany of cases in which the Ninth
10
Circuit upheld government conduct when presented with an OGC defense. See e.g., United States v.
11
Cuellar, 96 F.3d 1179 (9th Cir. 1996) (government=s payment of contingency fee to confidential
12
informant does not constitute outrageous government conduct); United States v. Winslow, 962 F.2d
13
845 (9th Cir. 1992) (government=s use of informant who arranged out-of-state trip, directed purchase
14
of bomb components, and was paid $90,000 for participation in investigation does not constitute
15
outrageous government conduct); United States v. Slaughter, 891 F.2d 691, 695-6 (9th Cir. 1989)
16
(government use of informant to strike up personal relationship with defendant and persuade him to
17
sell cocaine not outrageous conduct); United States v. Luttrell, 889 F.2d 806, 811-14 (9th Cir. 1989)
18
(counterfeit credit card sting operation held not to be outrageous government conduct); United
19
States v. Simpson, 813 F.2d 1462, 1464-71 (9th Cir. 1987) (FBI manipulating woman into providing
20
sexual favors to lure target into selling heroin held not to be outrageous government conduct);
21
United States v. Emmert, 829 F.2d 805 (9th Cir. 1987) (FBI approaching college student and
22
offering $200,000 finder=s fee for securing cocaine supply for government agent not outrageous
23
conduct); United States v. Wiley, 794 F.2d 514, 516 (9th Cir. 1986) (providing drugs for the
24
transaction did not constitute outrageous government conduct); United States v. Prairie, 572 F.2d
25
1316, 1319 (9th Cir. 1978) (AThe use of paid informants and undercover police officers to ferret out
26
13
drug dealers is not violative of due process principles@); United States v. Reynoso-Ulloa, 548 F.2d
1329 (9th Cir. 1977) (conviction upheld notwithstanding use of threats and physical violence to
prevent defendant from backing out of continuing criminal enterprise).2 The OGC defenses limited
application illustrates the need to reserve its invocation for only the most shocking circumstances;
and not every time the government employs deceptive measures in criminal investigations. United
States v. Mosley, 965 F.2d 906, 910 (10th Cir. 1992).
b. An outrageous government conduct finding turns on each individual cases

facts.
8
The federal courts have struggled to precisely define the parameters of outrageous
9
government conduct. Id. First, it is often conflated with the defense of entrapment. OGC differs
10
from Aentrapment,@ in that entrapment Afocus[es] on the intent or predisposition of the defendant to
11
commit a crime,@ while the concept of OGC solely focuses on the government=s actions. Russell,
12
411 U.S. at 429. Another difficulty is inherent in the fact that outrageous government conduct is
13
premised on the individual case facts and the totality of the circumstances surrounding the
14
government conduct in question. United States v. Bogart, 783 F.2d 1428, 1430 (9th Cir. 1986)
15
vacated in part on reh'g sub nom. United States v. Wingender, 790 F.2d 802 (9th Cir. 1986). Thus
16
[d]rawing a bright line with any degree of assurance is fraught with problems. Id. at 1437-38.
17
Despite an absence of a bright line test, the Ninth Circuit has created certain parameters to
18
guide the assessment of reasonable government conduct. In order for a court to find Aoutrageous
19
government conduct, Athe government=s involvement must be malum in se or amount to the
20
engineering and direction of the criminal enterprise from start to finish.@ United States v. Smith, 924
21
F.2d 889, 897 (9th Cir. 1991). The OGC defense applies Awhen the police completely fabricate the
22
crime solely to secure the defendant=s conviction.@ United States v. Winslow, 962 F.2d 845 (9th Cir.
23
1992) (citing Emmert, 829 F.2d at 811). Furthermore, government agents may not employ physical
24
25
In Reynoso-Ulloa, the Ninth Circuit held that the threats of violence and false claims Amust be viewed in the
context of the vulgarity and >puffing= engaged in by all participants. Id. at 1339.
26
14
or mental coercion. Bogart, 783 F.2d at 1438.
Notwithstanding the foregoing, A[g]overnment agents often need to play the role of criminals
in order to apprehend criminals, and this role occasionally entails unseemly behavior.@ Mosely, 965
F.2d at 910. For this reason, A[w]ide latitude is accorded to the government to determine how best to
fight crime.@ Id. (citing Russell, 411 U.S. at 435). As noted by the Supreme Court in Russell, federal
courts should avoid becoming a Achancellor=s foot@ veto over law enforcement practices of which
they do not approve. Russell, 411 U.S. at 435.
Abiding by the Supreme Courts admonition for deference to law enforcement agents in
pursuing their mission, the Ninth Circuit grants law enforcement agents broad discretion in
10
determining appropriate police procedures. Thus, the government may infiltrate[ ] a criminal
11
organization, approach[ ] persons already engaged in or anticipating a criminal activity, or provide[
12
] valuable and necessary items to the conspiracy. United States v. So, 755 F.2d 1350, 1353 (9th
13
Cir.1985) (internal citations omitted). Generally, law enforcement agents may also use artifice and
14
stratagem to ferret out criminal activity. Bogart, 783 F.2d at 1437-38 (quoting Sorrells v. United
15
States, 287 U.S. 435, 441 (1932)). Furthermore, law enforcement agents may solicit and pay
16
informants, supply illegal items to gain a defendants confidence, and provide supplies to further a
17
conspiracy. Id.
18
c. Defendants reliance on the recent Black and Hudson decisions is

misplaced.
19
In the recent decision and denial of dismissal premised on outrageous government conduct
20
in United States v. Black, 733 F.3d 294, 303 (9th Cir. 2013), the Ninth Circuit identified relevant
21
factors to evaluate the governments conduct in the context of OGC. These factors are:
22
(1) known criminal characteristics of the defendants; (2) individualized suspicion of
the defendants; (3) the government's role in creating the crime of conviction; (4) the
government's encouragement of the defendants to commit the offense conduct; (5) the
nature of the government's participation in the offense conduct; and (6) the nature of
the crime being pursued and necessity for the actions taken in light of the nature of
the criminal enterprise at issue.3
23
24
25
26
These factors build off the list the Ninth Circuit previously used to determine whether the government directed the
15
While this list is by no means exhaustive, it instead serves as a guideline for a totality of the
circumstances analysis. Id. The Ninth Circuit applied these factors to Blacks particular case facts.
In Black, the defendants were arbitrarily recruited by a CI to participate in a reverse sting operation
to rob a stash-house. After applying the aforementioned factors, the Ninth Circuit held that the
governments conduct was not so outrageous as to violate the universal sense of justice. Id. at
299-302.
In support of the argument that this case should be dismissed based on OGC, Defendant
relies heavily, and inappropriately, on the Black opinion. Defendants reliance on the Black opinion
in its Supplement in Support of Motion to Dismiss for Outrageous Government Conduct and/or
10
Pursuant to the Courts Supervisory Powers (Doc. #93 [2:13-cr-241]), and in its substantive motion
11
in case number 2:13-cr-239 (Doc. #188), to the Black dissent in the Denial of the Petitions for Panel
12
Rehearing and Rehearing En Banc, 2014 WL 1810699 (Reinhardt, J., dissenting) is improper for
13
two reasons. First, in regards to case number 2:13-cr-0241, the supplement was untimely filed. Even
14
had it been timely, the dissent is not controlling intervening law. Defendant should not be filing a
15
supplement to a motion based on non-controlling law, much less attempting to supplement the
16
motion with additional substantive facts and evidence.
17
Regardless, in both cases, reliance on Black is wholly misplaced as the underlying facts are
18
distinguishable from the instant case. The defendants in Black were not recruited as the result of a
19
long term undercover operation but rather were arbitrarily approached based on the area of town
20
they hung out in. Id. at 305. Conversely in the instant case, Halgats indictment came as a result of
21
Operation Pure Lucka multi-year undercover gang investigation.
22
criminal enterprise from start to finish as articulated in United States v. Bonanno, 852 F.2d 434 (9th Cir. 1988). In
Bonanno, the Ninth Circuit articulated that governmental conduct is acceptable when (1) the defendant was already
involved in a continuing series of similar crimes, or the charged criminal enterprise was already in process at the
time the government agent became involved; (2) the agents participation was not necessary to enable the defendants
to continue the criminal activity; (3) the agent used artifice and stratagem to ferret out criminal activity; (4) the agent
infiltrated a criminal organization; and (5) the agent approached persons already contemplating or engaged in
criminal activity. Id. at 437-38. Applying the legal standards set forth above, these cases do not meet the standards
prescribed to secure a dismissal of the indictment due to alleged OGC as the governmental conduct in this case at
issue in no way shocks the conscience or violates the universal sense of justice.
23
24
25
26
16
The Black factors were later applied by the United States District Court for the Central
District of California in United States v. Hudson, 2014 WL 960860 at *1 (C.D. Cal. March 10,
2014). In Hudson, the government arbitrarily recruited the defendants through a CI and then induced
them to commit an armed robbery on a fake stash-house. Id. at *1-*4. The court dismissed the
indictment for outrageous government conduct due to a strong finding against the government on all
six Black factors. Id. at *6-*14. Once again, the defenses reliance in their filings on Hudson and the
analogous case, United States v. Roberts, CR 13-00751 (C.D. Cal. May 30, 2014) is wholly
misplaced. In both cases, the government arbitrarily recruited the defendants with no ties to criminal
organizations. The recruitment of Halgat stands in direct contrast to these two cases. As already
10
noted, Halgat was targeted after a multi-year undercover investigation in which he was tied to the
11
Vagos criminal organization. Moreover, Halgat was targeted after he was observed engaging in
12
criminal activity, and heard discussing previous criminal activity.
13
Furthermore, neither case is controlling law. Hudson and Roberts were adjudicated in the
14
United States District Court for the Central District of California. The cases are at best persuasive;
15
but cannot truly assist the Courts analysis due to largely distinguishable circumstances. Finally, the
16
defendant introduced Roberts in the supplemental filing. Similar to the abovementioned reasoning,
17
Roberts supplemental inclusion was improper because it was both untimely and not controlling,
18
intervening law.
19
None of the factors weigh in favor of finding OGC in the case at hand. Defendants reliance
20
on his lack of documented criminal history to prove OGC without taking into account his own acts
21
and stated assertions of illegality defies logic. Even if this factor was not mitigated below, common
22
sense dictates that lack of documented criminal history would not qualify as OGC, because
23
criminals often do not have a documented criminal history prior to their convictions. Thus, the
24
Governments conduct cannot be said to violate a universal concept of justice by fulfilling only one
25
of six factors. By comparing the courts analysis in Black and Ninth Circuit precedent on OGC with
26
the facts of the instant case, it is clear the totality of the circumstances do not warrant dismissal of
17
1
2
the indictment.
i. Defendants known criminal characteristics
The Ninth Circuit held that a court must determine the defendants known criminal
characteristics such as a criminal background or propensity the government knew about when it
initiated its sting operation, when determining whether to grant a dismissal for OGC. Black, 733
F.3d at 304. In Hudson, the Court reasoned if the government agents were to actually have
knowledge that a particular person had engaged in similar conduct in the pastor at least had
suspicion based on identifiable factsthen the Government should and does have free rein,
consistent with constitutional restrictions. Hudson, 2014 WL 960860 at *7. (emphasis added). In
10
Black, the government agents were not aware of the defendants criminal propensity or history when
11
they first recruited the defendants in the operation. Despite this initial lack of knowledge the
12
defendants readily admitted to the undercover agent that they had engaged in stash-house robberies
13
before. Black, 733 F.3d at 305. The Ninth Circuit found this factor weighed in favor of the
14
government and reasoned that the defendants representations of engaging in related criminal
15
activity mitigated the governments original lack of knowledge. Id.
16
In the instant case, Halgat was introduced to Brancato through his membership in the Vagos
17
motorcycle gang, a known criminal organization. While Brancato may not have explicitly known
18
Halgats exact criminal propensity when he met Halgat, his Vagos membership signaled a
19
propensity to engage in the types of crimes members of the organization were regularly involved in
20
such as possession of illegal firearms and drug trafficking. Additionally, Halgat made
21
representations that he had engaged in similar criminal behavior in the past. See generally
22
Governments Exhibits 1-6; Exhibits associated with Doc. #44 (2:13-cr-241). When Brancato
23
inquired if Halgat could help him purchase cocaine, Halgat stated he could help set him up. Also
24
at a meeting on February 22, 2013, to discuss the airplane operation, Halgat stated he had followed
25
26
18
plenty of load cars,4 to make sure they got where they were supposed to go, by taking tickets and
informed Brancato that he had a background as a drug courier. Halgats lack of documented
criminal history is clearly mitigated the Defendants later representations of engaging in criminal
activity, as well as being observed engaging in criminal activity (See Governments Exhibit 1-5) and
further, Halgats gang membership. As a result, this factor weights in favor of the Government and
against the allegation of OGC.
ii. Individual suspicion of the defendant
The individual suspicion of the defendant is closely tied to the first factor. The Ninth Circuit
reasoned that the government need not have individualized suspicion of a defendants wrongdoing
10
before conducting an undercover investigation, however if they have reason to suspect a person or
11
identifiable group, that is an important factor before conducting a sting operation. Id. at 304. In
12
Black, the government agents had no individualized suspicion of the defendants before they were
13
arbitrarily recruited by a confidential informant. Conversely, in the instant case, the Government
14
had reason to suspect the identifiable groupthe Vagos organizationengaged in criminal conduct
15
before the sting operation. The Ninth Circuit reasoned that government conduct was permissible
16
when targeting individuals in a category of persons the government had reason to believe were
17
involved in criminal activities. Id. See e.g., Emmert, 829 F.2d 805, 812 (9th Cir. 1987) (finding
18
government targeting of student at a party with cocaine as likely to know cocaine dealers as not
19
outrageous conduct. Thus, Brancatos conduct was not outrageous when he targeted Halgat due to
20
his Vagos membership and the criminal history he observed. Again, this second factor weighs in the
21
Governments favor.
22
iii. Governments role in creating the crime of conviction
23
The third factor evaluates whether the government approached the defendant initially or the
24
defendant approached a government agent, and whether the government proposed the criminal
25
enterprise or merely attached itself to one that was already established. Black, 733 F.3d at 305. In
26
Load car is street vernacular for a vehicle filled with narcotics.
19
Black, the government proposed the fictional stash-house robbery and initiated contact with the
defendants. Id. at 307. After proposing the idea to the defendants, they responded to the bait with
enthusiasm and eagerly helped plan out the details of the stash-house robbery. Id. Despite the
governments initial role in creating the crime, the Ninth Circuit reasoned because the defendants
joined the conspiracy without any great inducement and took an independent role in planning the
crime; the factor did not weigh against the Government. Id.
The facts that led up to the two indictments against the defendant reveal that he did take an
independent role in the criminal behavior. In the instant case, Halgat introduced the UC to Wickham
for the purposes of purchasing cocaine. Thus, similar to Black, Halgat took an independent role in
10
planning the criminal conduct and responded eagerly to assist Brancato. Brancato inquired if Halgat
11
could help him obtain cocaine, and Halgat took the bait. Halgat organized both the setup and four
12
drug purchases from co-defendant Wickham without the assistance of the undercover agent. Halgat
13
guided Brancato through the entire cocaine purchase from start to finish. He did so willingly and
14
even declined payment when TFO Brancato offered. The Ninth Circuit previously held that
15
supplying opportunity for defendant to arrange drug sale was not outrageous government conduct
16
because informant did not set up the source from which the defendant would purchase the drugs.
17
Winslow, F.2d at 849 (citing United States v. Smith, 802 F.2d 1119, 1126 (9th Cir.1986)). As such,
18
Brancatos limited involvement as a buyer in the cocaine purchase is by no means outrageous
19
conduct.
20
Likewise, in defendants second case, the airplane undercover operation, Halgat took an
21
independent role. Brancato inquired if Halgat could provide him protection during the drug delivery.
22
Halgat replied, absolutely, with no encouragement. Halgat independently decided to bring
23
firearms to the airplane sting operation, and set up a meeting with McCall and Morrow to plan the
24
operation. Furthermore, he planned on his own how to best provide security and assistance in
25
concealing the cocaine in TFO Brancatos car. Thus while, TFO Brancato initiated the crimes,
26
Halgat eagerly and independently took a role in planning the commission of such crimes. Yet again,
20
the facts in this case weigh in the Governments favor.
iv. Governments encouragement of the defendants to commit the offense

conduct
3
The fourth factor evaluates the extent the government may have pressured or coerced the
4
defendants to participate. Black, 733 F.3d at 308. In Black, other than encouraging the defendants to
5
act quickly and form a team, there was no other encouragement by the government. Alternatively in
6
Hudson, the government targeted impoverished individuals and indicated that the proposed robbery
7
would net the defendants near $600,000. Hudson, 2014 WL 960860 at *10. The court held that
8
offering impoverished individuals such a windfall weighed in favor of outrageous government
9
conduct. Id. Absent the particularized targeting of impoverished individuals, the Ninth Circuit held
10
that offers of large sums of money by the government are not outrageous because such sums are
11
common to narcotic operations and are necessary for credible undercover operations. Emmert, 829
12
F.2d at 812. As such, mere offers of compensation do not trigger a finding in favor of outrageous
13
government conduct.
14
In the instant case, Halgat was not coerced to commit the offense conduct and offers no
15
proof of coercion or pressure by the Government. Initially, Brancato did not offer any compensation
16
for helping set up the cocaine purchases. When he did offer to pay Halgat, Halgat declined the
17
money. In regard to defendants contention of coercion through compensation for the second
18
offense, Brancato offered Halgat $1,000which was acceptedbut only after Halgat agreed to
19
participate. This amount of money is insufficient to induce an individual to commit a crime with a
20
heavy penalty if they had no intention of participating. This is particularly true as Halgat already
21
engaged in uncompensated criminal conduct related to the undercover investigation only a few
22
months prior.
23
The lack of economic coercion in the instant case easily distinguishes this case from
24
Hudson. Brancato did not take advantage of Halgats economic circumstances by offering him
25
money. Further, Halgat had declined compensation in the past, thus it would not be reasonable to
26
21
argue the $1,000 was given in order to take advantage of Halgats monetary circumstances, but
rather was simply payment for his role.
Defendant attempts to tip this factor in his favor by arguing that that Brancato coerced
Halgat through friendship and sympathy. The Ninth Circuit held that it is not outrageous conduct for
the government to use personal relationships with the suspect to elicit their participation in criminal
conduct because to win a suspect's confidence, an informant must make overtures of friendship and
trust and must enjoy a great deal of freedom in deciding how best to establish a rapport with the
subject. Simpson, 813 F.2d at 1466 (holding informants use of sex with suspect to convince him
she was a close friend during an undercover investigation was permissible government conduct); see
10
also Slaughter, 891 F.2d at 696 (holding use of an attractive female to create a personal
11
relationship with suspect to persuade him to sell drugs was not outrageous government conduct).
12
Thus, friendship alone cannot be viewed as coercive and this factor weighs in favor of the
13
Government.
14
v. Nature of the governments participation in the offense conduct
15
The fifth factor evaluates the duration, nature, and necessity of governments participation in
16
the crime. Black, 733 F.3d at 309. The duration of the government's participation in a criminal
17
enterprise is significant, with participation of longer duration being of greater concern than
18
intermittent or short-term government involvement. Id. Furthermore, the nature and necessity of
19
participation focuses on whether the government acted as a partner in the crime or as an observer.
20
Id. In Black, despite proposing the stash-house robbery, the government provided no weapons, plans
21
or manpower. The government only participated for a short time, acted as an observer, and did not
22
play a key role in the crimes commission. Id. Unsurprisingly, the court found this factor weighed
23
against a finding of outrageous government conduct. Id.
24
In the instant case, the Governments participation in the two offenses should be evaluated
25
separately. In regards to the purchasing of cocaine, the duration of Brancatos participation was
26
short. Only after he had infiltrated the Vagos OMG and learned about their members did Brancato
22
approach Halgat regarding purchasing cocaine. Halgat in turn introduced Brancato to Udell
Wickham, which led to four purchases cocaine; each of those transactions took place within a short
period of time. As such, the nature of Brancatos participation was not that of a partner. Halgat,
through his connection Wickham provided the drugs and arranged the details of the sale. The
2012 cocaine purchases do not demonstrate OGC. If it were, then all undercover sales of narcotics
would be considered OGC, which is simply unreasonable.
Likewise, the undercover operation at the airstrip in Searchlight, NV does not constitute
OGC. The planning of that operation occurred within a very short timespan; the operation was
completed in a little over a week from the first planning meeting to the commission of the crime.5
10
Regarding to the nature and necessity of Brancatos participation, his actions were closer to that of a
11
partner. Brancato and ATF coordinated the airplane drug delivery and provided the general plans for
12
the crime. Brancato requested Halgat watch his back, and Halgat agreed and made plans
13
independently to provide multiple firearms to the two other participants in the crime. Also during
14
the initial planning meeting, Halgat invited the other participants to his new shop to go over their
15
security plan. Halgat eagerly and independently added his own plans to the crime. Halgat would not
16
have been at the airport that day without Brancatos plan for the airplane sting operation, but his
17
voluntary and independent planning mitigates this factor. More importantly, it was Halgats decision
18
to bring firearms to the drug transaction.6 Furthermore, the Ninth Circuit has recognized that
19
undercover agents are actors and must sometimes use propssuch as the airplane in the instant
20
caseto apprehend criminals. Luttrell, 889 F.2d at 812. Combining both offenses this factor weighs
21
5
22
23
24
25
26
The Government anticipates that defendant will assert that the planning for the operation started six months earlier.
This representation would be incorrect. During the overall undercover operation, in October of 2012, Brancato
inquired that some of the Vagos, including Halgat, if they would be willing to provide security for a drug
transaction. The inquiry was generic and no formal planning of the operation took place until 2013.
6
In defendants untimely supplemental in case number 2:13-cr-241 (Doc. #93), the defendant inappropriately
attempts to supplement the facts of his motion by informing the Court that defendant had a concealed weapons
permit, amongst other information missing from his initial filing. Defendant provides no good cause for providing
this information late, and therefore the Government respectfully requests that this information be disregarded.
Nonetheless, as its alleged in both motions the Government responds and notes that it is unaware of any law, state,
Federal, or otherwise, that provides it is lawful for an individual to carry, transport, brandish, or otherwise possess, a
firearm during or in furtherance of an unlawful drug transaction, and defendant cites to none.
23
against a finding of outrageous government conduct. Even if the court does weigh it in favor of a
finding of outrageous government conduct, this factor should not be afforded much weight in the
totality of the circumstances analysis.
4
5
vi. Nature of the crime being pursued and necessity for government
action
The final factor evaluates the need for the investigative technique that was used in light of
the challenges of investigating and prosecuting the type of crime being investigated. Black, 733
F.3d at 309. In Black, the court noted the difficulty in stopping stash-house robberies, which often
lead to rival gang shootouts and hostage taking. Id. at 310. The court held in favor of the
government by reasoning that the difficulty in apprehending stash-house robbers in conjunction with
10
the recordings of the defendants statements allowed the government to apprehend criminals they
11
would not have been otherwise able to arrest.
12
Similar to Black, in the instant case the governments conduct was not outrageous.
13
Apprehending criminal gang members is difficult; in order to do so agents often must infiltrate the
14
organization by going undercover for years at a time. If the government was stripped of the ability
15
to infiltrate criminal organizations, government investigators might be severely hampered in the
16
prosecution of members. Luttrell, 889 F.2d at 813. The Ninth Circuit recognizes the need for
17
undercover agents and sting operations when attempting to apprehend members of organized crime
18
organizations. Id. Brancatos actions removed illegal drugs from the community and damaged the
19
ability of the Vagos gang to commit additional crimes. While Brancato and ATF created portions of
20
the crime during the airplane undercover operation, without the ability to set up such an undercover
21
operation they may not have been able to apprehend Halgat efficiently and safely. Furthermore,
22
Halgats recorded criminal representations of participating in other narcotic related or violent crimes
23
lend evidence that Brancatos action in arresting him was not outrageous.
24
vii. Totality of the circumstances
25
Applying the legal standards set forth above, the case should not be dismissed for
26
outrageous government conduct. In total, there is little evidence to suggest the government engaged
24
in misconduct or abused their wide court-granted discretion in investigation. At best, the defendant
may have a claim for entrapment at trial. Halgat fails to meet the high standard of demonstrating
that the facts underlying his arrest were so extreme as to violate[ ] fundamental fairness or are
so grossly shocking ... as to violate the universal sense of justice, United States v. Stinson, 647
F.3d 1196, 1209 (9th Cir. 2011). As a result, the indictment should not be dismissed for outrageous
government conduct, nor dismissed pursuant to the Courts supervisory powers.
2. The indictment should not be dismissed based on unsubstantiated allegations of

misconduct
8
a. Officers and Agents Involved in the Investigation Did Not Falsify Reports
9
Defendant asserts that reports related to the underlying investigation are falsified. See
10
generally Doc. #59 at 27; Doc. #188 at 37-40. The unsubstantiated assertions reveal defendants
11
unfamiliarity with law enforcement techniques, and, especially, undercover operations. As
12
demonstrated by TFO Brancatos affidavit, attached hereto as Governments Exhibit 6 and
13
incorporated herein by reference, the undercover agent did not falsify reports. Nonetheless, the
14
defendant alleges that parts of ROIs associated with this case are false. Specifically, defendant
15
contends that part of ROI #165 is not supported by the audio file, and the report should therefore
16
be inadmissible as evidence. Doc. #59 at 27:13-15; Doc. #188 at 38:9-12. However, the transcript of
17
the highlighted conversation provided the Court in defendants Motion to Dismiss is inaccurate. It
18
erroneously claims that defendants comment is [Inaudible] before Brancato replies [a]ll right,
19
Ill take care of you on the back end. Doc. #59-3 at 50:19-21.7 The report of investigation states
20
that this supposedly inaudible comment consisted of the defendant stating [d]ont worry about it,
21
you paid for my dinner and you can just get me on the back end. Defendant asserts that only TFO
22
Brancato is audible in claiming that he would take care of the defendant on the back end. See
23
Defendants Exhibits at Doc. #59-4; Doc. #188-20, ROI #165. While the conversation is
24
unintelligible and inaudible in part, the audio of the defendants side of the conversation beginning
25
7
26
Interestingly, the Government notes that the Exhibit that relates to this section of defendants motion to dismiss as
filed in case number 2:13-cr-239 (Doc. #188) does not include the full transcript. See Doc. #188-19.
25
at 1:40:45 and concluding at 1:41:01, certainly includes audio of Halgat stating back end homie
and Brancato responding at 1:41:01, in a tone of agreement, stating all right, Ill take care of you
on the back end. See Governments Exhibit 14, Courtesy Copy of the Relevant Audio Recording
(Manual Filing).8 Contrary to the defendants assertion to that the defendants comment is not
inaudible or not supported by the audio file, this is simply incorrect. While is it somewhat difficult
to hear, the comment is made. Further, it can be reasonably inferred from Brancatos agreement that
the comment was made and resembles what is listed in ROI #165.
Regardless, the admissibility of the reports should not be questioned based upon this issue as
the audio does support the report in this case. In any case, it is established that a recorded
10
conversation is generally admissible unless the unintelligible portions are so substantial that the
11
recording as a whole is untrustworthy. United States v. Lane, 514 F.2d 22, 27 (9th Cir. 1975). The
12
jury makes the determination as to the weight of the evidence rather than any counsel or transcriber,
13
as the recording is the evidence, with any transcription serving merely as an aid. See United States v.
14
Franco, 136 F.3d 622, 626 (9th Cir. 1998). Therefore, in any case, the jury should decide whether
15
the recorded evidence is intelligible and supports other materials.
16
In an attempt to further assert that the ROIs associated with this case are falsified, defendant
17
again challenges ROI #165. Doc. #59 at 27-28; Doc. #188 at 38-39. Defendant claims that the
18
reports are falsified because part of an audio recording captured two things that seem inconsistent
19
with the ROI. Defendant attempts to demonstrate that reports were falsified by comparing and
20
contrasting that audio recording with the accompanying ROI. Id. at 28. At first glance, the simple
21
comparison seems to lend weight to the allegation of falsification.9 However, defendant fails to
22
explain, or possibly recognize, that an ROI is a summary of what took place. It does not, and cannot,
23
24
25
26
The Government provides this courtesy copy because the his motion to dismiss in case number 2:13-cr-239 refers
to disc #174. That appears to be an error as that recording is associated with a different event number. As a result,
in an abundance of caution, the Government has provided another copy of the audio recording to the Court.
9
In defendants untimely and inappropriate supplemental filing (Doc. #93), he cites inapplicable case law in support
of its argument the case should be dismissed for alleged falsification of reports. Specifically, defendant cites to
United States v. Bagley, 473 U.S. 667, 678-80 (1985). Id. The Bagley case addresses perjured testimony. A police
report, or in this instant, an ROI, is not testimonial and cannot constitute perjured testimony.
26
cover each and every thing that occurs during an operation. This is particularly true during a long-
term undercover operation. A UC must take steps to protect the investigation, to include at times,
debriefing via telephone. Moreover, as revealed by Governments Exhibit 9, attached hereto, which
is an affidavit from TFO Brancato submitted under the penalties of perjury, ROIs are written to
protect law enforcement techniques.10 Therefore, an ROIs summary will not include each and every
detail of, in this instance, how and where the securing of narcotics and how the operation took place.
Id. Unlike the defendants uncorroborated allegation that the UC was mailing the controlled
substances through the mail, what actually occurred is the UC would take the narcotics and place
them in a locked mailbox. He would then advise case agents who would recover the narcotics from
10
the locked mailbox. That mailbox was visible from the UCs undercover house, and the narcotics
11
were recovered within minutes of when they were placed inside of it. Id. The only persons with keys
12
to this mailbox were the UC, the case agents, and the US Postal Service. However, all narcotics
13
were recovered from the mailbox within minutes of being placed there, and the UC maintained
14
visual contact of the mailbox until the narcotics were recovered. Accordingly, the narcotics
15
remained secured and the chain of custody was maintained.
16
The Government acknowledges that as written, the ROI #165, Defendants Exhibits at Doc.
17
#59-4 and Doc. #188-20, is confusing and could have been written with more clarity, to include
18
additional information. That does not equate to falsification of the report as the facts contained
19
therein are accurate. As reflected in the ROI, TFO Brancato did debrief the undercover operation
20
with Case Agents Wear and Arbodeen at an undisclosed location at a subsequent date. He also
21
debriefed with TFO Aboreen via telephone, which is the audio recording captured following the
22
unlawful narcotics sale by Halgat on September 19, 2012. Likewise, TFO Brancato transferred
23
custody of the purple Crown Royal bag containing a clear plastic bag and the purported cocaine to
24
10
25
26
Protecting law enforcement techniques includes limiting information disclosed in ROIs during an on-going
investigation. One such purpose is, for example, in the case a target is unexpectedly arrested early or some other
action takes place that results in the disclosure of reports. Limiting information is one method sometimes utilized to
insulate an investigation so that the arrest of one person does not always result in concluding a larger, long-term
investigation.
27
TFO Arbodeen and undercover ATF funds to Special Agent Matt Wear. This was done utilizing the
aforementioned mailbox system. Thus, while the information in ROI 165 could have been written
with more clarity, it does not contain falsities. As a result, defendants motion to dismiss on these
grounds should be denied.
b. The allegations of audio editing, deleting or other purposeful destruction

are unsubstantiated and do not provide basis for dismissing the case.
6
Defendant alleges that the Government destroyed or edited audio evidence in this case.
7
Specifically, defendant alleges that the Government edited audio that was favorable to his
8
entrapment defense, contending that while Mr. Halgat can testify about [his] reluctance and
9
constant inducement by TFO Brancato at trialhe can no longer offer the audio recordings in
10
support of his testimony. Doc. #59 at 30:11-13; Doc. #188 at 42:21-25. In support of the allegation
11
of destruction of evidence or editing of audio by the Government, defendant attached the report, and
12
a supplemental report, from Barry Dickey (Dickey), a retained Certified Forensic Analyst. See
13
generally Doc. #60-1; Doc. #188-4.11 Dickeys evaluation of that audio revealed anomalies, which
14
defendant and the expert now assert constitute missing, edited, or deleted audio. See
15
generally Doc. #59 at 28-30; Doc. #188 at 40-43.
16
Defendants argument fails because none of the recordings were edited, and further none
17
were deleted unless already preserved in another format. At no time did the undercover agent or the
18
case agent responsible for impounding the audio recordings purposely delete recordings that were
19
not already preserved. See Governments Exhibit 9; see also Governments Exhibit 10, Affidavit of
20
ATF Special Agent Matthew Wear. Likewise, at no time did any undercover agent or case agent
21
responsible for the audio recordings edit or modify recordings. Even so, the Government responds
22
to the allegations contained with Halgats motion to dismiss, and in case number 2:13-cr-241, his
23
untimely supplement (Doc. #93).
24
25
26
11
As previously stated, the defendants Supplement in Support of Motion to Dismiss for Outrageous Government
Conduct and/or Pursuant to the Courts Supervisory Powers (Doc. #93) is improper as it alleges new facts and
defendant cites no authority authorizing the late filing.
28
The Government notes that Dickeys reports, while lengthy, lackkey information. For
example, in the majority of his reports, there are no time stamps provided regarding where the
alleged missing audio is contained in each of the discs. Instead, there are general summaries
providing blanket information about the supposedly missing sections. See Doc. #60-1 at 4; Doc.
#188-4 at 5 (stating that . . . (12) of the locations exceeded the acceptable tolerances of the
extended possibilities). Similarly, Dickeys report is unclear in several sections regarding how long
some of the anomalies actually last. For example, in his initial report, Dickey notes that there are
(12) anomalies . . . rang[ing] from (5) seconds to up to (2) minutes in length of missing audio.
Doc. #60-1 at 4; Doc. #188-4 at 5. Such vague information leaves the Court and the Government
10
left wondering if there are 12 instances of five seconds of allegedly missing audio, or if there are
11
12 instances of two minutes of allegedly missing audio. The Government asserts that it must be
12
the first of those two scenarios otherwise it would have been written with more clarity. Likewise,
13
Dickeys supplemental report alleges that there are seven minutes of missing audio in a recording
14
from February 12, 2013 because [b]ased on the representation, the recording device was initiated at
15
1:57 pm and TFO Brancato references a call at 6:46.674 in the audio that should have been
16
received at the time of 2:11, 14 minutes into the audio. Doc. #93-4. It is unclear what the
17
representation is Dickey refers to given that neither the audio file nor the corresponding report
18
reference the time the audio began recording. See Government Exhibit 13, ROI #210. It appears this
19
is another example of purposely vague information provided by defendants expert which does not
20
give the Government an opportunity to adequately respond. Assuming there are any actual
21
anomalies, such as the call that began at 6:18.903 and ended abruptly, those would appear
22
consistent with the recording issues caused by packet loss (see infra Governments Exhibit 12) and
23
did not result from any editing or deletion on the part of the Government, the undercover agent, case
24
agent or anyone involved in this investigation. See Doc. #93-4. The Government can only assume
25
that Dickeys reports are written in such a fashion to be either misleading or confusing.
26
29
Of greater concern, is defendants mischaracterization of Dickeys findings in its motion.12
Defendant asserts Dickey . . . determined that all of the audio files have been edited and there are a
large number of missing segments of audio in every recording. Doc. #59 at 28:8-11 (emphasis
added). This representation is completely inaccurate and misinforms the court. Nowhere in Dickeys
report does it indicate that all of the recordings from the actual device were missing audio. On the
contrary, any alleged anomalies located by Dickey were in reference to a certain set of recordings.
Perhaps defendant was confused regarding Dickeys findings as his conclusion is again vague. He
notes that, based on his opinion and based on the examination of the evidence provided, there is
sufficient evidence to raise question as to the validity of the recording(s) as complete, accurate,
10
and/or reliable accounts of the events as they actually occurred, Doc. #60-1 at 6; Doc. #188-4 at 7,
11
but fails to note which of the recordings he is referring to. A review of his report reveals that he is
12
only referring to some and not all of the recordings.
13
14
The following is a brief summary of lengths of alleged missing audio in Mr. Dickeys
report.
15
Disc Number (per Dickeys

Report/Supplement)
16
171 & 174
17
9.19.12 VRec1 (device recording) &
9.19.12 VRec (broadcast recording)
18
19
Disc 236A (broadcast recording) & Disc

238 (device recording)
20
Disc 237 (broadcast recording) & Disc
Length of Alleged Missing Audio

(1) 21 locations of 1 second or less; and
(2) 4 locations of missing data between 5 seconds
and 17.5 seconds
(2) 12 anomalies of 5 seconds up to 2 minutes
(2) 15 anomalies ranging from 1.5 seconds
to 38 seconds
(1) 41 locations of 1 second or less;
21
22
23
24
25
26
12
The Government is also concerned with additional misleading information in Dickeys report. On page X, in the
section entitled Elemental Evaluation {Weapon(s) Location}. According to Dickeys report, the examiner was
provided information that specific individuals in the video were identified as continuously holding a gun
throughout the event. See Doc. #60-1 at pg.4. It is unclear who provided this information, or rather misinformation, to Dickey. Such information is inconsistent with the Report of Investigation about that event. See
Defendants Exhibits Doc. #188-16, ROI #222. Apparently, Dickey relied on that information in his report in an
attempt to attack the Governments case and attaches several photographs where the defendants in Halgats second
case (2:13-cr-239) are not holding guns. Absent from the report are the photographs from the same incident where
Halgat is removing a shotgun from a long-gun case. See Governments Exhibit 11 (Composite Exhibit). The
Government will provide color copies of these photographs to both the Court and defense counsel.
30
239 (device recording)
(2) 14 locations ranging from 1.5 seconds to 45

seconds
(1) 23 points of anomalies with no information
Disc 240 (broadcast recording) & 241
regarding length of time (Presumably, 14
(device recording)
locations of 1 second or less)
(1) 1 minute and 30 seconds
Disc 117813
(2) Suggestion that 7 additional minutes (in total)
are missing
Disc 117514
No information provided
The above-listed chart reveals that some of the recordings identified in Dickeys Report
2
3
4
5
6
were evaluated together. That is because the same event was recorded in live-time but using two
7
different recording devices. Specifically, Disc 171 and Disc 174 are two separate recordings of the
8
same event. Disc 9.19.12 VRec1 and Disc 9.19.12 VRec are also two separate recordings of the
9
same event. Likewise, respectively, Disc 236(a) and Disc 238, Disc 237 and Disc 239, and Disc 240
10
and 241 are two separate recordings of the same event. The two recordings, from the different
11
devices, are denoted in the above chart as either device recordings or broadcast recordings.
12
What the Government calls device recordings are identified in Dickeys report as NAGRA files.
13
The device recordings are copies of the audio downloaded from a covert device. The broadcast
14
recordings are copies of audio received from a secondary recording device that broadcasted the
15
events in live-time via the internet (IP Networks). Those recordings were captured in live time on a
16
law enforcement officers laptop.15 Thus, the recordings of the events were captured in live-time, in
17
two locations simultaneously. Dickeys report itself supports that there may be anomalies associated
18
with the broadcasted recordings, but not the device recordings. Repeatedly, Dickey notes that the
19
[c]omparative evaluation of the files . . . disclosed extremely similar information . . . . See Doc.
20
#60-1 at 4-5 (referencing Discs 9.19.12 VRec1 & 9.19.12 VRec; Discs 236A & 238; Discs 237 &
21
239; and Discs 240 & 241) (emphasis added). Yet this information was conveniently absent from
22
13
23
24
25
26
Defendant provided this disc, via manual filing, as part of his untimely supplement (Doc. #93). For the same
reasons previously articulated, the supplement should be stricken as untimely. Nonetheless, the Government
responds to the information contained therein.
14
Id.
15
The Government notes that the events were recorded in live-time not only to for authenticity purposes but also for
officer safety. It would defy protocol and fundamental law enforcement practice to run an undercover operation
without having an officer in the vicinity actively listening in case the undercover agent came into contact with a
dangerous situation.
31
defendants motion. The reason that the two recordings are extremely similar is because the content
is the same. The only difference is the alleged missing audio, however, it is limited and explained
by the software utilized to capture the broadcast recordings.
The Government submits that if there are any alleged anomalies, they are the result of the
manner that the recordings were captured.16 The Government asserts a law enforcement privilege17
which precludes disclosure of the make, model or type of surveillance/recording devices used
during this investigation of the defendant. See In re Dept of Investigation, 856 F.2d 481, 483-84 (2d
Cir.1988) (stating that the law enforcement privilege exists and prevents the disclosure of law
enforcement techniques and procedures, [preserves] the confidentiality of sources, [protects]
10
witnesses and law enforcement personnel, [safeguards] the privacy of individuals involved in an
11
investigation, and otherwise [prevents] interference with an investigation); United States v. Winner,
12
641 F.2d 825, 831 (10th Cir.1981) (stating that the law enforcement investigative privilege is based
13
primarily on the harm to law enforcement efforts which might arise from public disclosure of
14
investigatory files) (internal quotation marks and ellipsis omitted); Tuite v. Henry, 181 F.R.D. 175,
15
176-77 (D.D.C. July 31, 1998) (unpublished), aff'd Tuite v. Henry, 203 F.3d 53 (D.C.Cir.1999)
16
(The federal law enforcement privilege is a qualified privilege designed to prevent disclosure of
17
information that would be contrary to the public interest in the effective functioning of law
18
enforcement. [It] serves to preserve the integrity of law enforcement techniques and confidential
19
sources, protects witnesses and law enforcement personnel, safeguards the privacy of individuals
20
under investigation, and prevents interference with investigations.). As such, the Government has
21
not disclosed how the various recordings were captured because to do so would reveal privileged
22
law enforcement techniques to which the defendant is not entitled. Nonetheless, in order to respond
23
16
24
25
26
The Government does not concede that Dickeys report is accurate in its reporting of the anomalies. Rather, the
Government addresses any alleged anomalies herein.
17
The Government recognizes that the privilege is usually held during on-going criminal investigations. However,
given that similar law enforcement techniques are utilized in an on-going basis with current investigations,
disclosure of such information jeopardizes law enforcement personnel, those investigations, and the protection of
any citizens involved in said investigations. Should the Court feel it necessary to obtain this information, the
Government respectively requests it provide this information under seal for in camera review.
32
to this motion, the Government sent duplicates of the broadcast recordings identified in Dickeys
report to the software company that created the recording software utilized during the long term
undercover operation.18 Their review of the recordings revealed that there may be anomalies in
some of the broadcast recordings. However, those anomalies are consistent with their software.
Their review of the recordings revealed that the anomalies discovered by Dickey were the result of
Packet Loss during the transmission of the recording over the internet. See Governments Exhibit
12, Live Audio Streaming over Wireless IP Networks using User Datagram Protocol The Effect of
Packet Loss (hereinafter Live Audio Streaming Article) at 1.19 Per the software company, the
anomalies are normal and regularly found in broadcasted recordings. As noted in the Live Audio
10
Streaming Article, live audio streaming over IP networks uses User Datagram Protocol (UDP). Id.
11
Using UDP requires that the audio be divided into chunks which are called packets. Those
12
chunks, or packets, are then transmitted to the receiving device (in this case the laptop). Due to
13
network degradation and available bandwidth, there are times when one or more packets will be
14
dropped during the transmission, resulting in loss of some of the audio transmitted by the
15
transmitting device. Id. But that loss is limited and results in the recording of the actual audio
16
without the insertion of blank periods for dropped packets, despite always being the same amount of
17
transmission. In other words, dead time from the broadcasted recordings is removed. The final
18
page of the Live Audio Streaming Article best explains the packet loss. See id. at 4. The audio
19
streaming using UDP explains the anomalies identified by Dickey. For instance, the anomalies
20
identified in Disc 1178 can be explained by the digital recording/transmitting device that TFO
21
Brancato used during that days activities. Likewise, the use of UDP explains the large number of 1
22
second or less instances of audio anomalies.
23
18
24
25
26
The Government does not know if defendant sent full copies of the same CDs he was provided in discovery, or
only portions thereof. The Government responds under the assumption that full copies were provided to Dickey.
19
The Live Audio Streaming Article is a Whitepaper provided by the software company that manufactured the
software utilized during the undercover operation involving defendant Halgat. Because the Government is asserting
the law enforcement privilege, it will not disclose this information to the defendant. However, the Government will
provide the name of the Software Company and author of the article under seal to the Court.
33
The reason not every recorded event has both a device recording and a broadcast recording
associated with it is because there were times where the undercover agent would have to delete the
device recordings from the covert device in order to make room for a new recording. The recordings
were very large files and would quickly fill up the available space on the covert recording device.
But that same audio was already captured on the agents laptop via live broadcast. As such, the
undercover would not delete the device recordings unless and until the same incident was already
preserved. Contrary to the suggestion that the law enforcement involved in this investigation was
engaged in the destruction or spoliation of evidence or any other nefarious activity, when necessary,
the undercover agent removed the audio from the covert device to make room for additional
10
recordings. See Doc. #59; Doc. #93. This explains the instances where there are two recordings of
11
the same event, and likewise, where there are some instances where there is only one recording.
12
Common sense and the circumstances of how undercover operations work dictate that there are
13
some instances where the undercover agent would need to delete the recordings on the covert
14
device. An undercover agent does not have the luxury of continuously replacing covert recording
15
devices in order to preserve the same audio thats already captured in another location. Likewise, an
16
undercover agent does not have the luxury of meeting every day or every hour to download those
17
recordings. Doing so would put not only the undercover agent at risk, but the entire operation itself.
18
While some of the recordings from the covert device were deleted, the same audio was already
19
captured by the live broadcast and preserved by law enforcement personnel.
20
In any case, as revealed by the above-listed chart, the large majority of anomalies are 1
21
second or less. It is entirely unclear how the defendant could express such reluctance to participate
22
in various criminal activities, to include conspiring to sell controlled substances with Udell
23
Wickham, and providing armed security for a 10 kilogram cocaine deal in approximately such
24
short periods of time during an on-going undercover operation that lasted almost two years with
25
26
34
countless hours of recordings (to include video recordings20). The alleged missing audio is
dispersed over such an extended period of time, which is significant since some of the alleged
missing audio is for 1 second or less, or alternatively, a few seconds in length. It is incredible to
believe in such short time periods the defendant expressed any hesitation or lack of intent to engage
in criminal activity. This is particular true given the number of occasions the defendant participated
in criminal activity or discussed his involvement in criminal activity. See Governments Exhibit 1-5.
Even if this Court is to believe that there are instances of two contiguous minutes of missing
audio,21 it is unclear any individual could fully express reluctance to participate in criminal activity
in even this longer but still short period of time. Defendants motion also fails to inform this court of
10
other recordings capturing the defendant speaking about or engaging in criminal activity not charged
11
in any case in this District, and not evaluated by defendants expert.
12
As previously asserted, at no time did the undercover agent or the case agent responsible for
13
impounding the audio recordings purposely delete recordings that were not already preserved and
14
booked into evidence. Further, at no time did any undercover agent or case agent responsible for the
15
audio recordings edit or modify recordings. Defendant has failed to demonstrate bad faith, or any
16
sort of purposeful editing or deletion of evidence in this case. As a result, defendants motion to
17
dismiss on these grounds should be denied.
18
3. There is no basis for conducting an evidentiary hearing regarding Defendant=s claim of

outrageous government conduct
19
In a criminal case, such as this, A[a] trial court need only grant an evidentiary hearing on the
20
issue of outrageous government conduct when the defendant has presented specific facts that are
21
sufficient to raise a significant doubt about the propriety of the government=s actions.@ United States
22
v. Swiatek, 819 F.2d 721, 725 (7th Cir. 1987). Further, [a]n evidentiary hearing on a
23
motionordinarily is required if the moving papers are sufficiently definite, specific, detailed, and
24
25
20
Defendant fails to challenge the countless hours of video recordings associated with this case.
One instance was cited on Disc 1178 where seven minutes of missing audio existed though there is no indication
that it was contiguous. This is yet another example of Dickeys report that appears purposely vague.
21
26
35
nonconjectural to enable the court to conclude that contested issues of fact going to the validity of
the search are in issue. United States v. Walczak, 783 F.2d 852, 857 (9th Cir.1986); accord United
States v. Howell, 231 F.3d 615, 620 (9th Cir.2000) (a hearing is only required when the moving
papers allege facts with sufficient definiteness, clarity, and specificity to enable the trial court to
conclude that contested issues of fact exist. It is the Governments position that arguments raised in
defendants motion do not rise to the level of necessitating an evidentiary hearing as there is no
contested issue of fact. Rather, defendant makes allegations that fall short of demonstrating OGC or
misconduct by the Government. Moreover, the Government has provided the information regarding
the alleged anomalies and submitted affidavits and an article in support thereof. Further, defendant
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has failed to demonstrate that reports are falsified, and misled the court in asserting that all audio
11
recordings were edited, as well as asserting audio files are inconsistent with corresponding ROIs.
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As a result, the Government respectfully requests that this Court deny Defendants request for an
13
evidentiary hearing on the instant motion. Should the Court disagree, the evidentiary hearing should
14
be limited solely to questions of fact, and should not be a forum to argue questions of law.
15
III.
CONCLUSION
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For the reasons set forth above, the United States respectfully requests that the Court deny
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the Defendant=s Motion to Dismiss the Indictment (Doc. #59) without conducting an evidentiary
18
hearing.
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Dated this the 20th day of June, 2014.
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Respectfully Submitted,
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DANIEL G. BOGDEN
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/s/
CRISTINA D. SILVA
ANDREW W. DUNCAN
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25
26
36
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2
3
4
5
DANIEL G. BOGDEN
CRISTINA D. SILVA
ANDREW W. DUNCAN
333 Las Vegas Blvd. South, Suite 5000
Las Vegas, Nevada 89101
(702) 388-6336 (Telephone)
(702) 388-6418 (Fax)
UNITED STATES DISTRICT COURT

DISTRICT OF NEVADA
-oOo-
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UNITED STATES OF AMERICA,

Plaintiff,
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vs.
JEREMY HALGAT,
Defendant.
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Case No.: 2:13-cr-00241-APG-VCF

2:13-cr-00239-JAD-PAL
Certificate of Service
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The undersigned certifies that on June 20, 2014, a copy of the attached document, was
14
served via Electronic Case Filing to all related parties.
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DATED: June 20, 2014
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/s/
CRISTINA D. SILVA
ANDREW W. DUNCAN
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26
37

US vs. Halgat: Government's Response To 2nd OGC Motion

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US vs. Halgat: Government's Response To 2nd OGC Motion

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Case 2:13-cr-00239-JAD-PAL Document 191 Filed 06/20/14 Page 1 of 41

UNITED STATES DISTRICT COURT

UNITED STATES OF AMERICA,

Case No.: 2:13-cr-00241-APG-VCF

Court deny the motion in both cases.

Case 2:13-cr-00239-JAD-PAL Document 191 Filed 06/20/14 Page 2 of 41

TABLE OF AUTHORITIES ............................................................................................................... ii

FACTUAL BACKGROUND ...................................................................................................... 1

Background of the Vagos Motorcycle Gang ............................................................................ 1

Operation Pure Luck................................................................................................................. 4

b. Summary of Facts Related to United States v. Jeremy Halgat (2:13-cr-239-JAD-PAL) .......

Other Relevant Facts .............................................................................................................. 11

The indictment should not be dismissed for outrageous government conduct....................... 12

b. The allegations of audio editing, deleting or other purposeful destruction are

3. There is no basis for conducting an evidentiary hearing regarding Defendant=s claim of

III. CONCLUSION ......................................................................................................................... 36

Case 2:13-cr-00239-JAD-PAL Document 191 Filed 06/20/14 Page 3 of 41

Greene v. United States, 454 F.2d 783 .............................................................................................. 13

Hampton v. United States, 425 U.S. 484 (1976) ................................................................................ 12

In re Dep't of Investigation, 856 F.2d 481 ......................................................................................... 32

Sorrells v. United States, 287 U.S. 435.............................................................................................. 15

Tuite v. Henry, 181 F.R.D. 175 .......................................................................................................... 32

Tuite v. Henry, 203 F.3d 53 ............................................................................................................... 32

United States v. Bagley, 473 U.S. 667 ............................................................................................... 26

United States v. Black, 733 F.3d 294 ......................................................................................... passim

United States v. Bogart, 783 F.2d 1428 ....................................................................................... 14, 15

United States v. Bonanno, 852 F.2d 434 ...................................................................................... 15, 16

United States v. Cuellar, 96 F.3d 1179 .............................................................................................. 13

United States v. Franco, 136 F.3d 622 .............................................................................................. 26

United States v. Howell, 231 F.3d 615............................................................................................... 35

United States v. Hudson, 2014 WL 960860 ................................................................15, 15, 17, 18, 21

United States v. Lane, 514 F.2d 22 .................................................................................................... 26

United States v. McClelland, 72 F.3d 717 ......................................................................................... 12

United States v. Molina, 934 F.2d 1440............................................................................................. 12

Case 2:13-cr-00239-JAD-PAL Document 191 Filed 06/20/14 Page 4 of 41

United States v. Smith, 802 F.2d 1119 ................................................................................... 12, 14, 20

United States v. So, 755 F.2d 1350 .................................................................................................... 15

United States v. Sotelo-Murillo, 887 F.2d 176................................................................................... 12

United States v. Stinson, 647 F.3d 1196 ............................................................................................ 25

United States v. Swiatek, 819 F.2d 721 .............................................................................................. 35

United States v. Walczak, 783 F.2d 852............................................................................................. 35

United States v. Wingender, 790 F.2d 802......................................................................................... 14

United States v. Winner, 641 F.2d 825 .............................................................................................. 32

Case 2:13-cr-00239-JAD-PAL Document 191 Filed 06/20/14 Page 5 of 41

1. Background of the Vagos Motorcycle Gang

Mexico, Mexico, Canada, Nicaragua, and Sweden.

Case 2:13-cr-00239-JAD-PAL Document 191 Filed 06/20/14 Page 6 of 41

officers include the chapters President, Vice-President, Secretary/Treasurer, and its

the evaluation of prospective members.

Case 2:13-cr-00239-JAD-PAL Document 191 Filed 06/20/14 Page 7 of 41

indicia identifying support for a rival gang.

violence on behalf of the Vagos.

Case 2:13-cr-00239-JAD-PAL Document 191 Filed 06/20/14 Page 8 of 41

period for the Prospect phase of Vagos membership.

2. Operation Pure Luck

Case 2:13-cr-00239-JAD-PAL Document 191 Filed 06/20/14 Page 9 of 41

a. Summary of Facts Related to United States v. Udell Wickham and Jeremy

Case 2:13-cr-00239-JAD-PAL Document 191 Filed 06/20/14 Page 10 of 41

1550 hours, Halgat departed from TFO Brancatos residence. Id.

Case 2:13-cr-00239-JAD-PAL Document 191 Filed 06/20/14 Page 11 of 41

Halgat subsequently departed the restaurant. Id.

Case 2:13-cr-00239-JAD-PAL Document 191 Filed 06/20/14 Page 12 of 41