Professional Documents
Culture Documents
Plaintiffs,
vs.
Defendants.
A. INTRODUCTION
Defendant Carbone was the “primary suspect” or “target” of the DEA investigation into
the source of the leak that occurred in connection with the Tang investigation. As will
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be shown below, the primary reason why Carbone gained this dubious status was by
virtue of the unsubstantiated allegations, suspicions, and charges that were lodged by
Plaintiffs Joyce and Lopez. When these suspicions were put to the test of investigation,
all objective facts pointed against Plaintiffs’ charges. Indeed, the entire exercise boils
down to an example of nothing more than ipse dixit – the Plaintiffs’ say that Carbone is
the primary suspect in the leak and, as a result, it must therefore be so. Herein, they
continue to press their charge with no facts to support same other than rank speculation
procedure in seeking the documentation they request, they are untimely and have been
dilatory in seeking that documentation, and the materials sought are not even relevant
to the controversies presented by this case. For these collective reasons, the motion
should be denied.
3. The Amended Affidavit submitted in support the Motion is rife with errors
and also omits material facts included in the DEA Summary Report which, when
considering the present motion, it must be remembered that the DEA Summary Report
is not in and of itself evidence of anything, but instead merely reports information and
statements gathered from the various persons who were interviewed in the underlying
and the witnesses identified therein that might constitute potential evidence. None of
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the investigators, including the person sought to be deposed (Special Agent Roach)
have any direct knowledge of facts bearing on this case. Instead, they merely
investigated and reported upon what they were told by others. Finally, it must be
considered that while the Summary Report contained various impressions and surmise
of investigators (as all such reports are want to do), such matters constitute nothing
more than inadmissible opinions. Thus, neither the Summary Report, nor the complete
report, nor any testimony concerning those documents is likely to be admissible in any
event.
on November 10, 2010. As discussed below, several facts recited within the Amended
Affidavit submitted with Plaintiffs’ Motion are inaccurate and/or omit material facts. By
signature hereunder, counsel verifies that the following disparities of facts or omissions
that “both [Special Agent] Reid [of the DEA] and Carbone forcefully argued
to wait until more time passed before taking action”. [Summary Report at
Charge Palestino (also of the DEA) thought that immediate action should
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[Summary Report at pp. 104 – 105.] The report also indicates that
“[Special Agent] Marshall [of the DEA] was ambivalent, but somewhat
phone calls showing that the subject of the investigation were aware of
connection with this case, Plaintiff Joyce claimed that Defendant Bell also
[Deposition of Daniel Joyce at p. 206, ll. 18-22.] Thus, while the Amended
immediate action, both the Summary Report and other facts clearly
demonstrate that he was but one voice taking this position. Far from
fact that Carbone was promoted to the rank of commander following the
events that form the basis of this lawsuit. [Amended Affidavit at p. 2.] The
the promotion. Carbone has had an exemplary 30+ year career in law
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Award in 2005, and the City has received dozens of letters of appreciation
for Carbone’s service to include one from then Colorado Attorney General
Salazar offering thanks for his service in helping extradite criminals who
c. Through innuendo, the Amended Affidavit attempts to suggest that the cell
the DEA to determine whether or not Carbone’s daughter was in any way
linked to the purchase of the subject cell phone. All of those efforts
proved entirely fruitless and in fact demonstrated that she was not
involved. Not a single witness was identified who placed Ms. Carbone in
the location where the phone was purchased on the day in question. In
fact, the clerk who sold the phone to the purchaser was shown a
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phone. [Summary Report at pp. 116 and 120.] Investigators even went to
to determine whether or not she had any part in filling out the application
for the cell phone. The criminalist “concluded that the evidence suggests
that [Ms. Carbone] did not write [the name of cell phone applicant]”.
detective from the Denver Police Department who analyzed the evidence
and determined that “Ms. Carbone’s fingerprints were not on the cell
performed and none of that yielded any results indicating that Carbone’s
daughter had any link whatsoever to the purchase of the subject cell
found such a connection, the omitted material facts demonstrate just the
opposite.
d. The Amended Affidavit lays claim that the Summary Report indicates that
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at p. 90.] Indeed, if one reviews the transcribed handwritten notes that are
submitted with Plaintiffs’ motion, this exact quote is reflected showing that
the quotation set forth in the Amended Affidavit is an error. [See, Excerpts
correct quotation thus suggests that roughly half of the NMTF employees
with regard to the leak. It is known from the discovery in this case that
l.14.] Moreover, while Plaintiff Joyce denies that he told others at the
NMTF of suspicions that Carbone was the author of the tip-off letter
6, p. 119, l. 7 – p. 126, 11.] Also, since the DEA investigators had, with the
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Although Joyce denies telling other NMTF detectives and employees of his suspicions about
Carbone, the vast majority of persons deposed or interviewed say just the opposite – Joyce
spoke long and loud about his suspicions. In fact, his harangue became so distracting that at
least one detective asked to be moved away from him.
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doubtless the case that virtually everyone who was questioned regarding
the matter was asked about Carbone. With all of this suspicion already
cast upon Carbone, one has to ask whether or not the suspicions existed
minds of others
e. The Amended Affidavit also claims that the Summary Report indicates that
by a different special agent than the others who were given such a test.
generally held inadmissible both in the Colorado Courts and in the Tenth
Circuit. 14 Colo. Prac., Criminal Practice & Procedure, § 1.5(3) 2nd Ed.;
United States v. Call, 129 F.3d 1402 (1997). The vast majority of courts
reliability. 22 Fed. Prac. & Proc. Evid., § 51, 69, 1st Ed.
2
The Amended Affidavit also states that “Detective Garcia’s examination showed deception.”
[Amended Affidavit at p. 4.] In reality, the Summary Report states that “the examination of
Garcia…[shows]...no deception.” [Summary Report at p. 46.] This is but another example of the
lack of precision and accuracy in the Amended Affidavit.
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going so far as to claim that “when Tang was interviewed on February 18,
his friend, Dante’”. [Amended Affidavit at ¶ 3.l.] What is omitted from the
Amended Affidavit is the fact that when interviewed, Tang denied ever
the Summary Report reflects that no other person claims to have ever
heard this statement besides one officer. [Id.] The officer who claims that
the statement was made is none other than Plaintiff Joyce. [Deposition of
Carbone and Tang indicated that they only knew each other by virtue of
Carbone having come into the restaurant for lunch. [Summary Report at
addition, although claim is laid that there was a close relationship between
Carbone and Tang, it was found that Tang when interviewed stated that
made and the critical fact is omitted that the only person who even alleges
such a statement was made is one the Plaintiffs in this case. It is also
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not the slightest thing to do with the Tang investigation from unattributed
Summary Report indicates that “one NMTF employee said that several
credible people both within and outside of NMTF told him to be aware of
given for this charge, nor is the source identified. Given the history of the
investigation, it is not at all unlikely that the unattributed source was one of
h. The Amended Affidavit also charges that Carbone was a close friend of
Noel Busck, former mayor of the City of Thornton, and suggests that
[Amended Affidavit at ¶¶ 3.v., w., x., and y.] In fact what the Summary
“friendly one” and goes on to describe that Carbone rode with him on
“National Night Out” while Busck was mayor, a fact which Carbone readily
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the assertions in the Amended Affidavit, the Summary Report does not
bear out a close friendship between Carbone and Busck, nor does it
information to him.
5. Despite the fact that Plaintiffs labeled Carbone as a suspect and this
apparently led to a vigorous investigation of him by the DEA, the end result of a detailed
and lengthy investigation was that insufficient evidence was developed to pursue any
the evidence developed in the DEA report was completely exculpatory of Carbone.
Even now, Plaintiff Joyce admits that he never had either probable cause or even
Joyce at p. 19, l. 20 – p. 20, l. 16.] As well, Lopez admits that he never possessed any
probable cause that Carbone was involved in the leak. [Deposition of Robert Lopez at
p. 153, l. 25 – p. 153, l. 6.] Despite this dearth of evidence and despite not having any
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suspect. Professional law enforcement investigators should know that such conduct is
C. PROCEDURE
that is being relied upon seeking an order compelling document production and
does not include any provisions for compelling document production or testimony
Court that the parties sought to be compelled (i.e. the United States Attorney and a DEA
agent) have even been served with the Motion. The Court will be deprived of any
response from these non-parties if they are not served with the Motion. They have the
8. It is also clear that Plaintiffs have failed to comply with the Touhy
regulations, 28 C.R.F. § 16.21 et seq., that are a condition precedent to any legal action
Pestal dated December 6, 2010 and February 3, 2011, Exhibits 3 and 10 to the Motion.]
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D. TIMELINESS
fact, as the record demonstrates, they have been dilatory in both pursuing this discovery
10. Plaintiffs’ first raised the issue of undertaking discovery regarding the DEA
investigation in August of 2010. [Email from Patricia S. Bangert and Notice of Issuance
of Subpoena Duces Tecum dated August 17, 2010, attached hereto as Exhibit A.]
Defendants were not informed as to whether or not the subject subpoena was ever
served, nor was any notice given of cancellation of the subpoena. One of the defense
attorneys appeared on the assigned return date for the subpoena, on August 27, 2010,
only to find that Plaintiffs’ counsel had apparently unilaterally cancelled the production
11. It was not until some three and one-half months later in December of 2010
that the issue of the DEA report was once again raised by Plaintiffs. [Email from
Patricia S. Bangert and Notice of Issuance of Subpoena Duces Tecum dated December
12. Just four days following service of the second Notice of Issuance, the
United States Attorney’s Office responded to Plaintiffs’ counsel and advised of the need
to conform to the Touhy regulations. [Letter from Mark S. Pestal dated December 6,
2010, Exhibit 3 to the Motion.] In his correspondence, the Assistant United States
Attorney also offered to make the Summary Report available for inspection by Plaintiffs.
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13. Although the United States Attorney had agreed to make the Summary
Report available as of early December of 2010, Plaintiffs’ counsel did not convey her
intent to review those materials until December 20, 2010. [E-mail from Patricia S.
Bangert dated December 20, 2010, a copy of which is attached hereto as Exhibit C.] In
her communication, Plaintiffs’ counsel indicated that she would be “set[ting] up a time to
review the letter in early January”. [Id.] No reason is given for delaying inspection of
14. The issue was not raised again until yet another month later on January
21, 2011, when Plaintiffs’ counsel announced her intention to take the deposition of
Special Agent Roach. [E-mail from Patricia S. Bangert dated January 21, 2011, a copy
unilaterally announced her intention to set Roach’s deposition for “next Thursday”
(January 27, 2011). This notification is some six weeks after Plaintiffs were given the
opportunity to review the Summary Report. It is also served only eight days before the
30.1(A) which requires that reasonable notice for the taking of a deposition is not less
than 14 days and also requires that a party engage in good faith efforts to schedule the
efficient to the proposed deponent and all counsel of record. Plaintiff’s counsel neither
15. It was not until January 26, 2011, that Plaintiffs’ counsel indicated that “the
U.S. Attorney needs more time to consider Plaintiffs’ request to depose S.A. Paul
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Roach” and therefore announced that the “deposition is obviously cancelled”. [E-mail
from Patricia S. Bangert dated January 26, 2011, a copy of which is attached here to
Exhibit E.]
16. The discovery cut-off in this case lapsed on January 28, 2011. This
occurred without Plaintiffs having perfected scheduling of the discovery they now wish
to undertake, without having filed a motion with regard to such discovery, and without
17. It was not until February 18, 2011 that Plaintiffs advised of their desire to
pursue a motion with regard to the document production and deposition requested from
the United States Attorney and the DEA. [See, E-mail from Patricia S. Bangert dated
February 18, 2011, a copy of which is appended hereto as Exhibit F.] This Motion was
then filed on February 21, 2011, some three and one-half weeks following the expiration
18. Plaintiffs’ Motion offers no good cause for why the discovery in question
could not have been completed before the discovery cut-off. In fact, as the history set
forth demonstrates, Plaintiffs first contemplated this discovery in August of 2010, leaving
them over five months within which to conduct the discovery. Despite this, they waited
until the eve of the cut-off to even attempt to subpoena the records and depose Special
Agent Roach. Perhaps more importantly, no extension was sought before the discovery
deadline expired. Accordingly, this Motion should be denied on the basis of timeliness
alone.
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E. RELEVANCE
is fundamental to understand the nature of the legal theory of the case. Here, Plaintiffs
plead but one claim for relief, that being premised upon a theory of First Amendment
retaliation. In such a case, the legal issues are straightforward. Within the Tenth Circuit,
the basic formula for recovery on a First Amendment retaliation claim requires that a
plaintiff be able to show the following elements: (1) that the plaintiff’s speech was made
a private citizen, as opposed to as a part of his official duties; (2) that the speech was
promoting efficiency of public service do not outweigh the plaintiff’s free speech
interests; (4) that the protected speech was a motivating factor in the alleged adverse
employment action; and (5) that the government employer would not have reached the
Univ. of Colo. Hosp. Auth., 596 F.3d 741, 745 (10th Cir. 2010); Brammer Hoelter v.
Twin Peaks Charter Acad., 492 F3d 1192, 1202 (10th Cir. 2007).
20. Despite Plaintiffs’ assertion to the contrary, the DEA investigative reports
and testimony associated therewith do not bear on any of these legal or factual issues.
Motion:
a. First it is asserted that the DEA report will detail the specific speech which
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the report contains reference to the Plaintiff’s claimed speech will make
none of the issues presented by this case more or less likely. In fact,
the specific nature of the speech they claim to have engaged in. The fact
that such may have been reported in DEA reports, either in detail or in
b. Second, it is claimed that the DEA report “may” show a motive for
assertion that the report “may” show such a motive is speculative at best.
But more to the point, Plaintiffs have already announced and conducted
Carbone was the source thereof). Whether or not the DEA report
speculates on such matters does nothing to make the truth of that claimed
c. Third, Plaintiffs assert that the DEA report “may” show the exertion of
investigation. [Motion at p. 9.] Once again, the suggestion that the report
“may” show such matters is speculative at best and is not consistent with
anything contained within the Summary Report that has been reviewed by
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investigators is not in any way probative of the salient issues in this case
Motion constitute nothing more than a fishing expedition which should not
d. Fourth, Plaintiffs also assert that the DEA report “may” show that other
again, the speculative claim that the report “may” show such matters is
testimony of the NMTF employees who are claimed to have suffered from
such. Virtually, every such person associated with the NMTF during the
connection with this case. Thus, as with the other matters discussed
e. Fifth, Plaintiffs make the curious assertion that the report may show that
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f. Sixth, Plaintiffs make the broad assertion that the DEA report “might shed
that a document that they could have discovered months ago “might” allow
Plaintiffs to obtain facts that would allow them to question the credibility of
21. In sum, the relevance of the requested discovery is tangential and weakly
linked, if at all, to the issues in this case. Given the fact that correct procedure has not
been adhered to, timeliness has been ignored, and Defendants have a substantial
interest in moving forward with the consummation of this litigation, such weak relevance
F. CONCLUSION
22. The facts concerning the Summary Report upon which Plaintiffs premise
their motion are either incorrect or incomplete due to material omissions of fact.
Plaintiffs have wholly failed to comply with applicable procedure. Plaintiffs’ Motion is
untimely and their acts have been dilatory in every respect. Relevance, if any, is
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Respectfully submitted,
s/ Thomas S. Rice
Thomas S. Rice
Senter Goldfarb & Rice, L.L.C.
1700 Broadway, Suite 1700
Denver, CO 80290
Telephone: (303) 320-0509
FAX: (303) 320-0210
E-mail: trice@sgrllc.com
Attorneys for City of Thornton, James
Nursey, and Dante Carbone
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 7th day of March, 2011, I electronically filed a
true and correct copy of the above and foregoing RESPONSE TO PLAINTIFFS’
MOTION FOR ORDER COMPELLING PRODUCTION OF SUBPOENAED
DOCUMENTS AND TESTIMONY with the Clerk of Court using the CM/ECF system
which will send notification of such filing to the following email addresses:
Patricia S. Bangert
Attorney at Law, LLC J. Andrew Nathan
3773 Cherry Creek North Drive Marni Nathan Kloster
Suite 575 Nathan Bremer Dumm & Myers, PC
Denver, Colorado 80209 3900 E. Mexico Avenue, Suite 1000
pbangertlaw@aol.com Denver, Colorado 80210
Attorney for Plaintiffs Joyce and Lopez anathan@nbdmlaw.com
mkloster@nbdmlaw.com
Steven J. Dawes Attorneys for North Metro Task Force
Light, Kelly & Dawes, P.C. and Richard Reigenborn
1512 Larimer Street
Writer Square Office Tower, #300 Cathy Havener Greer
Denver, CO 80202 William T. O’Connell, III
sdawes@lkdpc.com Wells, Anderson & Race, LLC
Attorney for Defendant Timothy Hersee 1700 Broadway, Suite 1020
Denver, Colorado 80290
Josh A. Marks cgreer@warllc.com
Melanie B. Lewis woconnell@warllc.com
Berg Hill Greenleaf & Ruscitti, LLP Attorneys for the City of Northglenn
1712 Pearl Street and Russell Van Houten
Boulder, Colorado 80302
jam@bhgrlaw.com
MBL@bhgrlaw.com
Attorneys for Jack Bell
s/ Barbara A. Ortell
Barbara A. Ortell, Legal Secretary
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