jw2004

Case 2:08-cr-20105-CM-JPO Document 39 Filed 10/22/2008 Page 1 of 4 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRIC OF KANSAS :::18 OCT 22 PH 12: II I it::t.; ';~ t":: ' : LbH\ ,'.,J .}-~, ~ t~ BY UNITEDSTATES OF AMERICA Plaintiff, A~Hy.KS ~nn DEPUTY V. Guy M. Neighbors Case No. 08-201OS-01/02/JWL/JOP & Carrie M. Neighbors Defendant. MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR DISCOVERY OF ELECTRIC SURVEILLANCE The above- named defendant's pursuant to the provisions of the Fourth Amendment to the Constitutions ofthe United States and to rule 4 and 12 ofthe Federal Rules of Criminal Procedures, files Discovery of Electronic Surveillance. The Defendant, respectfully moves this Honorable Court for an order directing the attorney for the government to provide to Defendants and the defendants attorney's the following requested information relating to electronic surveillance as follows: I. A. A copy of all transcripts, logs, tapes, recordings, including constant recordings, memoranda, notes and all other documents reflecting or relating to conversations between any co-defendants or alleged co- conspirator and any other person which was I Case 2:08-cr-20105-CM-JPO Document 39 Filed 10/22/2008 Page 2 of 4 overheard by the government, or any persons acting on its behest, either in person or through the use of wiretap, transmitting device, Nagra, T-4, or any other electric or mechanical means including and LAN, or WAN, phone lines or any wireless communication interception. B. A copy of all notes, logs, transcripts, memoranda, tapes or other recordings, photographs, undeveloped films taken during the investigation of this case or during any surveillance of Defendant, or any co-defendant, or alleged co-conspirators, by any Nagra, T-4, mechanical or electronical means or otherwise. II. A. Any electronic eavesdropping device installed by or at the direction of agents of the federal, state or local government, which was utilized to eavesdrop upon defendant, co-defendant or co-conspirators, which occurred at a place, or through a facility leased or owned by the defendant, co-defendants or co- conspirators in which the defendants, co- defendants or co- conspirators was present or had a proprietary interest, or any reasonable expectation of privacy, state; 1. The date of installation of each such devices; 2. The names and addresses of each person who installed such devices; 3. The authority pursuant to which said devices was installed; 4. The names and addressed of each person who authorized such installations; 5. The location of each devices; 6. The date of each such eavesdropping; 7. The name and address of those monitoring such an eavesdropping conversation and whether a recording was made of such conversation and if so, by whom and what authority; 8. The type of memorandum or document which was made in connection with each such eavesdropping; 9. The date of removal of each such devices and the names and address of such persons as to who removed such devices. 2 Case 2:08-cr-20105-CM-JPO Document 39 Filed 10/22/2008 Page 3 of 4 B. The contents of all statements and conversations overheard or recorded electronically, and memoranda, transcripts, notes and logs prepared in connection therewith. The defendant's need to know is substantial in light ofthe timeline requirement of 18 U.S.C 2518 (10), (A); Rule 4 and 12 federal Rules of Criminal Procedure; United States v. Rosenberg, 299F. Supp. 1241 (S.D.N.Y) (1969); U.S.v. Feinberg, 502F. 2d 1180 (7th cir. 1974), cert. denied 420 U. S. 926, 95 S. Ct. 1122,43 L. Ed. 2d 396 (1975) Surveillance as to which petitioner has a standing to object should be turned over to him without being screened in camera by the trial judge. U.S. v. Butenko, 494 F.2d 593 (3d Cir. 1974) The government is required to produce and turn over to the defendant any transcripts of conversations of defendants by means of electronic surveillance or any type. U. S. v. Sink, 56 F. R. 0.365 (E. D. Pa. 1972) Some courts have held that the "bare claim" itself is legally sufficient to require an affirmative or negative response from the government. U. S. v. Vielguth, 502 F. 2d 1257 (9 Cir. 1974), In re Evans, 452 F. 2d 1239 (D.C. Cir. 1971). Interception of conversation by means of electronic surveillance is governed by the Fourth Amendment to the Constitution ofthe United States. Katz v. U.S. 347, 88 S. Ct. 507, 19 L. Ed, 2d. 576 (1967). The rights of a defendant in a criminal case to inspect government record of allegedly illegal electronics surveillance is limited to the transcripts ofthe defendant's own conversation and ofthose which took place on his premises. Aldreman v. U. S. 394 U. S. 165, 89 S. Ct. 961, 22 L. Ed. 2d 176 (1969) Furthermore, the "due process" clause would require disclosure and production by the United States Attorney of all such favorable evidence to the defendant under Brady v. Maryland, 373 U. S. 83 83 S. Ct. 1194, 10 L. Ed. 2d. 215 (1963) and the subject of elect