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Case 2:11-cr-02294-RB Document 441 Filed 06/13/13 Page 1 of 4

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF NEW MEXICO ) ) Plaintiff, ) ) vs. ) Case Number: 11 CR 2294 RB ) RICK REESE, ) TERRI REESE, and ) RYIN REESE, ) ) Defendants. ) ______________________________________________________________________________ DEFENDANTS REPLY IN SUPPORT OF MOTION FOR PARTIAL RELEASE OF ASSETS ______________________________________________________________________________ UNITED STATES OF AMERICA,

The Defendants, Rick Reese and Terri Reese, by and through their counsel of record, Robert J. Gorence of Gorence & Oliveros, P.C., and Jason Bowles of the Bowles Law Firm, submit their Reply in support of their Motion for Partial Release of Assets. In support of this Reply, Defendants state as follows: Contrary to the governments assertion in its Response, Doc. 439, the Defendants have met the standard required to qualify for a hearing under the Jones-Farmer rule. Jones states that a defendant must demonstrate to the court's satisfaction that [he] has no assets, other than those restrained, with which to retain private counsel and provide for [himself] and [his] family. United States v. Jones, 160 F.3d 641, 647 (10th Cir. 1998). In this case, Rick Reese provided an affidavit setting forth exactly why the assets were needed. While the affidavit does not list every asset seized, it specifically lists the most liquid assets which were seized and which amounted to over $100,000.00. In addition, the affidavit referenced the seized gold and silver, which

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clearly would constitute substitute assets because they were acquired after a lifetime of saving by Rick and Terri Reese, and are also assets which are quite liquid, albeit not as valuable now compared to when it was seized due to a declining market. See Doc. 437-1. The affidavit also goes into detail regarding the hardship the seizure has placed on Mr. Reese and his family. Id. Thus, Mr. Reeses affidavit establishes a preliminary basis for which to set an adversarial hearing on the matter. If the hearing is granted, Mr. Reese will testify, and be subject to crossexamination, regarding the financial plight of his family and his inability to defend himself against an ever-expanding platoon of government lawyers which at last count numbers ten attorneys. The Reeses have also met the second Jones prong where a defendant must also make a prima facie showing of a bona fide reason to believe the grand jury erred in determining that the restrained assets constitute[ ] or [are] derived, directly or indirectly, from gross proceeds traceable to the commission of the [health care] offense. Jones, 160 F.3d 641, 647 (quoting 18 U.S.C. 982(a)(6)). Once a defendant satisfies these initial burdens, due process requires a district court to conduct an adversarial hearing at which the government must establish probable cause to believe that the restrained assets are traceable to the underlying offense. Id. This Court specifically stated in its Memorandum Opinion and Order granting Defendants Motion for a New Trial and Motion for Release on Conditions Pending Sentencing, Doc. 404, that the government committed a constitutional violation in not disclosing impeachment evidence related to Deputy Batts, a crucial witness in the governments case. See Doc. 404, pp. 8-10. The Court further stated that, had the jury been presented with all of the material, exculpatory evidence, such evidence could have easily altered the outcome of the trial. See Doc. 404, p. 10. It was due to this constitutional error that the Court granted Defendants motion for a new trial, and it is

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this issue which is currently on appeal. Id. This information alone is sufficient to meet Mr. Reeses burden of producing evidence which demonstrates an error in determining that the restrained assets are traceable to the underlying offense because there may have been no credible underlying offenses. Because Rick and Terri Reese have met both burdens, an evidentiary hearing is warranted to determine if some or all of the assets should be released so that the Reese family can legally compete with the sequester exempt, limitless resources of the government and to eke out a meager subsistence. As part of its Response, the government further contends that the Defendants assets should not be released to pay for counsel and cites to the Supreme Court's decisions in Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 109 S.Ct. 2646, 105 L.Ed.2d 528 (1989), and United States v. Monsanto, 491 U.S. 600, 109 S.Ct. 2657, 105 L.Ed.2d 512 (1989). As illustrated in Jones, the Supreme Court cases only held that a criminal defendant has no Sixth Amendment right to use forfeitable assets to employ counsel. Neither case decided whether due process requires a hearing at which a defendant could challenge the forfeitability of assets. United States v. Jones, 160 F.3d 641, 648 (10th Cir. 1998). Specifically, the court in Monsanto noted that [w]e do not consider today, however, whether the Due Process Clause requires a hearing before a pretrial restraining order can be imposed. As such, these cases do not preclude Defendants from seeking a hearing to determine the forfeitability of the assets seized, especially under the unique circumstances of this case: where this Court has already found that the government committed a grave error by withholding exculpatory evidence which may have completely negated all charges in this case. WHEREFORE, for all of the above reasons, Defendants request a full evidentiary hearing of this matter and that this Motion be granted.

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Respectfully submitted, /s/ Robert J. Gorence Robert J. Gorence Gorence & Oliveros, P.C. Attorney for Defendant 1305 Tijeras Avenue NW Albuquerque, NM 87102 (505) 244-0214

/s/ Jason Bowles Jason Bowles Bowles Law Firm 201 3rd Street NW, Suite 1370 Albuquerque, NM 87102 (505) 217-2680

CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been emailed by CM/ECF to counsel entitled to notice, this 13th day of June, 2013.

/s/ Robert J. Gorence Robert J. Gorence