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Case 2:09-cr-00132-RLH -RJJ Document 135 Filed 02/26/11 Page 1 of 3

1 DANIEL BOGDEN
United States Attorney
2 MICHAEL CHU
Assistant U.S. Attorney
3 333 Las Vegas Blvd. S, Ste 5000
4 Las Vegas, NV 89101

5 UNITED STATES DISTRICT COURT


DISTRICT OF NEVADA
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7 United States of America,
Response to Defendants’
8 Plaintiff, Motion For the
Government to Pay for Scanning
9 v.

10 Ginger Gutierrez, James Kinney, Brian

11 Dvorak, Helen Bagley and Jeff Mitchell

12 Defendants.

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14 The United States of America, by and through the undersigned attorneys, responds to the
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Motion of defendants Ginger Gutierrez, James Kinney, Brian Dvorak, Jeff Mitchell and Helen Bagley
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to have the United States pay for scanning (Docket No. 131).
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18 Discussion
19 Previously, as defendants have noted, the United States has produced about 300,000 pages
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which it will rely upon for its case in chief. Because these documents were deemed significant, they
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22 were scanned, bates numbered and produced.

23 At issue is a different collection of documents: about 200 boxes of documents that the
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Securities & Exchange Commission in Los Angeles has kept in cold storage. The United States does
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not have possession of these documents. It did not gather them. It has not seen these documents, nor
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27 at this time intends does it intend to rely upon them for its case in chief. Their significance is, at best,

28 uncertain.

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Case 2:09-cr-00132-RLH -RJJ Document 135 Filed 02/26/11 Page 2 of 3

1 That said, out of an abundance of caution, the United States notified defendants of the
2 existence of these documents and made them available for defendants “to inspect and to copy or
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photograph” under Federal Rule of Criminal Procedure 16. Until defendants filed their Motion, the
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5 plan was for the parties to drive to Los Angeles and review the documents on February 28, 2011.

6 However, defendants apparently obtained one bid of in excess of $100,000, based on an


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assumption that 200 boxes would be packed full with 2500 pages. Upon hearing this, the CJA Panel
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requested that defendants file their Motion to have the United States pay for scanning all documents.
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10 It is unclear, however, if there was more than one bid, or if it was opened up to a bid competition that
11 would lower prices. What is clear is that this bid was obtained without the documents having first
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been looked at.
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14 It is understandable that the CJA Panel is concerned about costs. Even in the best of times,

15 $100,000 is a large sum. But these are not the best of times; as has been widely reported, the entire
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United States government is working without a budget in place. In fact, the government as a whole is
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working off of a continuing resolution until March 4, 2011. Even if the continuing resolution is
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19 extended, our nation’s finances remain in a precarious state. Naturally, this budget situation also

20 affects the U.S. Attorney’s Office. It is imperative that we all economize.


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Before the parties spend in “excess of $100,000.00” in taxpayer money, the United States
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suggests that (1) this motion be dismissed without prejudice for defendants to later re-file; (2) the
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24 parties first inspect the documents to get a better sense of what lies ahead; and (3) the parties obtain
25 multiple, competing bids. To aid all parties in making this determination, the United States has
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obtained an index from the Securities & Exchange Commission, and provided it to defendants; this
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28 may also help the parties determine what documents may be relevant, and what are clearly not.

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Case 2:09-cr-00132-RLH -RJJ Document 135 Filed 02/26/11 Page 3 of 3

1 Conclusion
2 For these reasons, the United States respectfully requests that defendants’ motion be denied
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without prejudice to re-filing once the parties have first inspected the documents, and have obtained
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5 multiple, competing bids.

6 Respectfully submitted February 26, 2011.


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DANIEL BOGDEN
8 United States Attorney
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/s/
10 __________________________
11 Michael Chu
Assistant United States Attorney
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