Case 2:09-cr-00132-RLH -RJJ Document 168

Filed 11/11/11 Page 1 of 4

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

CHRIS T. RASMUSSEN, ESQ. Nevada Bar 7149 RASMUSSEN & KANG 330 South 3rd Street, Suite 1010 Las Vegas, Nevada 89101 (702) 464-6007

UNITED STATES DISTRICT COURT DISTRICT OF NEVADA *** UNITED STATES OF AMERICA, ) ) Plaintiff, ) ) v. ) GINGER GUTIERREZ, ) ) ) Defendant. ) ) ________________________________)

2:09-CR-00132-RLH-RJJ REPLY TO GOVERNMENTS RESPONSE TO THE SECOND MOTION TO COMPEL

Defendant, GINGER GUTIERREZ, by and through his attorney, CHRIS T. RASMUSSEN, ESQ., submits the following Reply to Governments Response to the Second Motion to Compel Discovery at Government Expense. DATED this 11th day of November, 2011. Respectfully submitted /s/ Chris T. Rasmussen ____________________________ CHRIS THOMAS RASMUSSEN Nevada Bar 7149 RASMUSSEN & KANG 330 South 3rd Street, Suite 1010 Las Vegas, Nevada 89101 (702) 464-6007

Case 2:09-cr-00132-RLH -RJJ Document 168

Filed 11/11/11 Page 2 of 4

1 2 3 4 5 6 7 8 9 10

MEMORANDUM OF POINTS AND AUTHORITIES The Government prosecutors have made substantial efforts in transporting the discovery in which the Securities and Exchange Commission (SEC) have turned over. In fact, they have made every effort to allow us to review the boxes that are conveniently stored at the Foley Federal Building.1 All counsel were afforded an opportunity to review the 108 boxes of materials. A day was set aside in which all counsel and support staff participated in a review of the new discovery that was made available, under the supervision of the FBI. However, it became apparent to all that attended, many of the items opened

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CJA counsel in which it would not have been appropriate to participate in the civil at the Foley building are not in any sequential order or marked in a manner that allows either party the ability to readily discern their contents. On page six of the Governments Response, they reference the civil litigation in which the defendants in this case were defaulted. The Government insinuates that defense counsel failed to respond to the civil allegations and should have captured all of this information via the civil case. However, most of the defendants were appointed contained new material. The first box that was opened by the FBI agent contained a disk entitled informant audio recording. The second box the agent opened contained nothing that was disclosed prior, but appeared to be relevant as it referred to corporations in which CMKM was developed. The amount of boxes and large volume of documents contained inside the room

AUSA Chu and FBI agents have been extremely accommodating in their efforts to ensure defense counsel have all the access necessary to review the new boxes. It appears there is agreement that defense counsel should have these items to prepare for the lengthy trial. The issue before us is who should bear the cost, Department of Justice or Defender Services.

Case 2:09-cr-00132-RLH -RJJ Document 168

Filed 11/11/11 Page 3 of 4

1 2 3 4 5 6 7 8 9 10

litigation. Obviously, CJA counsels scope of work is limited to the criminal indictment brought against each of their clients. Under longstanding principles of constitutional due process, information in the possession of the prosecutor and his investigating officers that is helpful to the defendant, including evidence that might tend to impeach a government witness, must be disclosed to the defendant prior to trial. United States v. Price, 566 F.3d 900 (9th Cir. 2009). In the instant case, there is no dispute that the materials provided to defense counsel is of the type that might tend to impeach witnesses. The real dispute is who

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 /s/ Chris T. Rasmussen ____________________________ CHRIS THOMAS RASMUSSEN Nevada Bar 7149 RASMUSSEN & KANG 330 South 3rd Street, Suite 1010 Las Vegas, Nevada 89101 (702) 464-6007 discovery with the previously bate stamped and indexed disclosures, we would request that a closed CJA hearing be held to present the cost to recover this information from within the Foley building. Respectfully submitted should have the burden and cost of producing the evidence. It would be inherently inefficient and costly for defense counsel to sit in the eight foot by ten foot room and sift through 108 boxes and compare them to the current disclosed and bated discover which in itself exceeds three hundred thousand pages. If the Court is not inclined to order the Government to disclose the additional

Case 2:09-cr-00132-RLH -RJJ Document 168

Filed 11/11/11 Page 4 of 4

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28