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Case 2:16-cr-01012-SRB Document 121 Filed 04/04/17 Page 1 of 5

1 Mark D. Goldman (012156)
Jeff S. Surdakowski (030988)
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GOLDMAN & ZWILLINGER PLLC
3 17851 North 85th Street, Suite 175
Scottsdale, AZ 85255
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Main: (480) 626-8483
5 Facsimile: (480) 502-7500
E-mail: docket@gzlawoffice.com
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Attorneys for Defendant Joseph M. Arpaio
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UNITED STATES DISTRICT COURT
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DISTRICT OF ARIZONA
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United States of America, Case No.: 2:16-cr-01012-SRB-1
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Plaintiff,
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REPLY IN SUPPORT OF DEFENDANT’S
13 v. MOTION FOR CONTINUANCE OR TO
EXCLUDE DOCUMENTS DISCLOSED
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Joseph M. Arpaio, BY THE GOVERNMENT AFTER
15 MARCH 1, 2017
Defendant.
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17 (Expedited Oral Argument Requested)
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19 Pursuant to the Federal Rules of Criminal Procedure Rule 16, Defendant’s Motion for
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Continuance or to Exclude Documents Disclosed by the Government After March 1, 2017 (the
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“Motion”), should be granted because the Government has produced and continues to produce
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23 documents and other exhibits well past the Court ordered deadline. In their Response in
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Opposition to Defendant’s Motion for Continuance or to Exclude Documents (the
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“Response”), the Government acknowledges that disclosures were made as late as March 22,
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27 2017. However, this was not the final disclosure. On April 4, 2017, counsel for Defendant
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Case 2:16-cr-01012-SRB Document 121 Filed 04/04/17 Page 2 of 5

1 received the Government’s “PRODUCTION 9”. As a result of these late and voluminous
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disclosures, Defendant is prejudiced because counsel is unable to properly review all of the
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new disclosures in the short twenty-one (21) days remaining before trial, and therefore is
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5 unable to adequately prepare a defense.
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As stated in Defendant’s Motion, this Court has already specifically addressed the
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issues related to the Government’s disclosure of its list of exhibits for trial in this matter. After
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9 hearing from both sides at the Pretrial Conference, the Court ordered the Government to
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produce its exhibits for trial by March 1, 2017. At the Pretrial Conference, the Court
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specifically asked Mr. Keller about the Government’s exhibits and its witness list. The Court
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13 even considered its own experience with government over-disclosure of documents,
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contrasting the incredible number of documents that can be disclosed to the smaller number of
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exhibits that are eventually marked for use in trial. Therefore, the Court’s deadline is well
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17 founded, and should be adhered to.
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The Government’s arguments that the documents were “records that the defendant and
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his attorneys have had access to for years,” or are documents that were “provided more than a
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21 month before trial,” or that “the substance of the productions was previously provided to the
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defendant” are not persuasive. More importantly, such arguments are ironic given that the case
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against Defendant is based upon an alleged failure to comply with a court order, and certainly
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25 the Government would not be accepting of an argument that Defendant mostly complied with
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the court order or that he complied in substance at least.
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Case 2:16-cr-01012-SRB Document 121 Filed 04/04/17 Page 3 of 5

1 Instead, and in direct violation of the Court order compelling the Government to
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produce its exhibits for trial by March 1, 2017, the Government has not disclosed a significant
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number of documents timely. Coupling this untimeliness with the voluminous nature of the
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5 disclosures creates an undue burden on Defendant by forcing him to comb through and discern
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which of the unknown number of documents are new, and what if any relevance they may
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have on this case. The dilatory delivery of these documents creates an unfair burden on
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9 Defendant, now only 21 days before the trial date.
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The Government now says they do not “intend” to offer all of these disclosures at trial.
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However, such a statement does not mitigate or diminish the unfair burden placed upon
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13 Defendant because the Government can offer this evidence at trial, which means Defendant
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must prepare his defense against the information that was untimely provided. This creates an
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additional undue burden on Defendant.
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17 The Defendant must be allowed to defend himself against his accusers. His right to a
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defense includes his right to object to certain evidence, and to not stipulate to the authenticity
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of certain productions. In their Response, the Government states that they are disclosing
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21 certain discovery untimely because Defendant “refused to stipulate to the authenticity of the
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previously produced versions.” The Government concludes that, because of the lack of
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stipulation and because the new and different versions of the productions are similar in
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25 substance to what was previously provided, Defendant will not be prejudiced by having to
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review the disclosures. The Government’s argument is unpersuasive and counter to logic. The
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Defendant must review all of the evidence in preparation for trial, even that evidence which is
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Case 2:16-cr-01012-SRB Document 121 Filed 04/04/17 Page 4 of 5

1 similar to what was previously produced. As previously stated, Defendant also has the right to
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object to or challenge the exhibits. The Government implies that a defendant who was acting
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in a manner consistent with his rights to defend himself consequently diminishes those rights
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5 to prepare a proper defense. Such an argument is counter to Defendant’s due process rights.
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Furthermore, for the Government to say that because something is similar in nature to what
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has already been disclosed, it allows for the Government to violate this Court’s order, defies
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9 the purpose of court orders and any discovery deadlines. Again, this argument is ironic given
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that the case against Defendant is based upon an alleged failure to comply with a court order.
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The Government also acknowledges in its Response that only portions of certain
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13 recordings were previously provided. Now, the entirety of the recordings is being produced.
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Based on Defendant’s due process rights, as well as the rule of completeness, the entirety of
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these disclosures is highly relevant and Defendant should be afforded the right and time to
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17 review them in preparation for his defense. A multitude of information can be gleamed from
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an entire recording as opposed to just the portions the Government choses to present. The
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purpose of and policy behind the rule of completeness is to prevent statements from being
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21 taken out of context or edited so that the statements are improperly used against a defendant.
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Here, the Government prefers to ignore this well-founded rule, and again burden Defendant
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with untimely disclosures that may contain information that is pertinent to his defense. The
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25 Government’s arguments in defense of its dilatory disclosures do not mitigate the harm and
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prejudice caused to Defendant. Therefore, Defendant’s Motion should be granted pursuant to
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Case 2:16-cr-01012-SRB Document 121 Filed 04/04/17 Page 5 of 5

1 Rule 16(d)(2)(B) Fed. R. Crim. P., and Defendant should be allowed a continuance to review
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these new or supplemental disclosures.
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In the alternative, Rule 16 grants the court latitude to enter “any other order that is just
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5 under the circumstances.” Rule 16(d)(2)(D). Additionally, Rule 16 permits a court to prohibit
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a party from introducing at trial any undisclosed exhibits, or in this case, exhibits that are
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disclosed well after the Court’s ordered deadline. In the event that the Court does not continue
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9 the trial in order for Defendant and defense counsel to review and analyze the recent
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disclosures, Defendant requests that the Court prohibit the Government from introducing any
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of the information disclosed after the Court’s March 1, 2017 deadline, pursuant to Rule
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13 16(d)(2)(C) Fed. R. Crim. P.
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15 DATED this 4th day of April, 2017.
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GOLDMAN & ZWILLINGER PLLC
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/s/ Jeff S. Surdakowski
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Mark D. Goldman
19 Jeff S. Surdakowski
17851 North 85th Street, Suite 175
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Scottsdale, AZ 85255
21 Attorneys for Defendant Joseph M. Arpaio
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23 CERTIFICATE OF SERVICE
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I hereby certify that on this 4th day of April, 2017, I electronically transmitted the
25 foregoing Motion to the Clerk of Court through the CM/ECF System which will send a
Notice of Electronic Filing to all CM/ECF registrants for this matter.
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/s/ Dina D. Horsman
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