Case 2:16-cr-00046-GMN-PAL Document 1451 Filed 01/29/17 Page 1 of 7

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TODD M. LEVENTHAL, ESQ.

Leventhal and Associates, PLLC
Nevada Bar No. 8543
California Bar No. 223577
626 South Third Street
Las Vegas, Nevada 89101
(702) 472-8686
Leventhalandassociates@gmail.com
Attorney for O. Scott Drexler
UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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vs.
O. SCOTT DREXLER,
Defendant.

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MR. DREXLERS RESPONSE TO THE

GOVERNMENTS MOTION FOR A
PROTECTIVE ORDER (ECF No. 1440)

Plaintiff,

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Case No.: 2:16cr00046GMNPAL

UNITED STATES OF AMERICA,

I. SUMMARY
Defendants O. Scott Drexler, by and through his attorney of record, Todd M. Leventhal,
Steven Stewart, by and through his attorney, Richard Tanasi and Eric Parker, by and through his
attorney, Jess R. Marchese, hereby files this response to the governments motion for a
protective order, which seeks six forms of relief: (1) allowing an undercover employee to
testify under his pseudonym, Charles Johnson; (2) prohibiting the defense from asking the
undercover agent about his true identity, contact information, or date of birth; (3) prohibiting the
defense from asking the undercover agent about ongoing and past investigations; (4) preventing
the public from hearing audio recordings of the agent or reproducing images of him; (5) allowing

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the undercover agent to use a non-public entrance and exit from the courtroom outside the

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presence of the jury; and (6) prohibiting the public from recording the undercover agents

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testimony with cellphones.

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Case 2:16-cr-00046-GMN-PAL Document 1451 Filed 01/29/17 Page 2 of 7

The defendants do not oppose the fourth, 1 fifth, or sixth request. Indeed, the sixth request

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is redundant of the local rules, which prohibit cellular phone use and recording devices from all

proceedings in the District of Nevada. However, the defendants do oppose the first, second, and

third requests. It is absolutely vital that the defense know the undercover employees identity

and whether he has participated in other investigations and, if so, which investigations. Failure

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to disclose this information may result in a Brady or Giglio violation and require a finding of a
mistrial.

II. LEGAL STANDARD

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The constitutional guarantee to a fair trial, as interpreted by Brady and Giglio and their
progeny, requires the government to disclose to the defense any evidence that is material to guilt
or punishment. Brady v. Maryland, 373 US. 83 (1963). The government is also obligated to turn
over all material information that casts a shadow of a doubt on a government witnesss
credibility. Giglio v. United States, 405 U.S. 150, 154-55 (1972). No court order is required to
obtain Brady or Giglio information. United States v. Aichele, 941 F.2d 761, 764 (9th Cir.1991)

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(quoting United States v. Davenport, 753 F.2d 1460, 1462 (9th Cir. 1985)). Indeed, it is

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unethical to attempt to withhold such evidence. Nevada Rule of Professional Conduct 3.8(d),

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which has been adopted in the District of Nevada, states that [t]he prosecutor in a criminal case

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shall [m]ake timely disclosure to the defense of all evidence or information known to the

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prosecutor that tends to negate the guilt of the accused or mitigates the offense. As stated in

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United States v. Acosta, [w]hether evidence is useful, favorable, or tends to negate the guilt

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or mitigate the offense are semantic distinctions without a difference in the pretrial context.

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357 F. Supp. 2d 1228, 1232 (D. Nev. 2005).

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Although Mr. Drexler does not oppose this request, he anticipates that the Las Vegas Review
Journal or other media outlet may oppose the request on the grounds that it potentially impedes
the publics right of access to trial.

Case 2:16-cr-00046-GMN-PAL Document 1451 Filed 01/29/17 Page 3 of 7

III. ARGUMENTS

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The governments motion seeks to prevent Mr. Drexler, Mr. Parker and Mr. Stewarts

(and the public) from accessing Brady and Giglio information. First the government is in

violation of this courts direct ruling ensuring that all discovery was to be produced and

disseminated to the defendants no later than January 6, 2017. See docket #1017. Therefore, the

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governments UCE witness must be precluded from testifying in that no information has to this
date been handed over.
The government argues that a potential threat of physical harm requires the court to enter
a protective order (1) allowing the undercover agent to testify under his pseudonym, Charles
Johnson, (2) prohibiting the defense from asking the undercover employee about his true
identity, contact information, or date of birth, and (3) prohibiting the defense from asking the
undercover employee about ongoing and past investigations.
But the governments emphasis on threats that were made by third parties and members
of the public is a distraction. What is at issue in this trial is not the safety of the informant but

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the fairness of these defendants trial. The government has had years of training and experience

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in making sure their witness is safe from physical harm.

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The government states that, Public disclosure of the UCEs identity or physical images

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would jeopardize other investigations in which the UCE is active and may pose a risk of danger

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to the UCE. The fact that this UCE has other ongoing investigations should have little to no

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value to this court. The Government oversaw this investigation from day one. The government

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chose who was going to be investigated and how that person was going to be investigated. The

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government has at its tips 1000s of agents that could have stepped in and investigated this matter.

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The fact that the government chose a person who now, at trial needs to be handled with kit

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gloves potentially violates Drexlers constitutional right to a fair trial.

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The government cites a list of completely irrelevant examples on why this court should
take the massive risk of violating Mr. Drexlers right to a fair and public trial. The concern that
Mr. Drexler has is that this overemphasis of what others may have done will bleed into this court

Case 2:16-cr-00046-GMN-PAL Document 1451 Filed 01/29/17 Page 4 of 7

and taint a confusing and disconcerting message to the jury. For example, the government uses

Jarad and Amanda Miller in their brief as the poster children for this trial. The Millers had

nothing at all to do with any of the defendants in this case. In fact, the Millers were asked to

leave the Bundy ranch as being too radical. What the Millers did was not condoned by anyone

even remotely associated with this case whatsoever, and the fact that the government uses it to

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aid in their argument that somehow the UCE needs protection is there only for theatrical value.
In addition, the message sent to the jury also plays into the hands of the government and
thereby abolishes any right to a fair trial. The jury will be left with wondering why this person is
cloaked in a protective balloon while every other witness is not. There is no doubt that this
confusion will lead to an insinuation that one of the defendants in court threatened this witness,
which could not be further from the truth.
Further, the defendants cannot impeach a witness if no one knows his name. The
defense will be unable to investigate and inquiring into the agents history of misconduct (if
any). Simply put, if Mr. Drexler cannot investigate the credibility of the governments key

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witness, then he cannot raise reasonable doubts about the witnesses credibility. Suffice it to

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sayif the court prevents the defense from raising reasonable doubts that may exist, then it

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creates the risk that the defendant has no defense at all.

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The Ninth Circuit has stated that district courts must carefully monitor undercover agents
and informants. In the Ninth Circuits words, such witnesses are
[b]y definition . . . cut from untrustworthy cloth and must be managed and
carefully watched by the government and the courts to prevent them from falsely
accusing the innocent, from manufacturing evidence against those under suspicion
of crime, and from lying under oath in the courtroom.

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Carriger v. Stewart, 132 F.3d 463, 479 (9th Cir. 1997) (en banc). Therefore, Mr. Drexler asks

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the court to deny the governments motion for a protective order and order the government to

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furnish defense counsel with the undercover agents name, date of birth, and list of investigations

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that he has participated in. Mr. Drexler also requests the following information:

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Case 2:16-cr-00046-GMN-PAL Document 1451 Filed 01/29/17 Page 5 of 7

1.

Whether any informant/undercover agent was a user of any controlled substances

or was a distributer of controlled substances, and, if so, the complete nature and extent of his

drug use and trafficking.

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2.

Whether any informant/undercover agent has, since becoming an

informant/undercover agent, continued to use or distribute any controlled substances, and, if so,
the dates, times, places and recipients of such distributions.
3.

Whether any informant/undercover agent was suspected, apprehended, or

convicted of any crime(s) at any time during which he/she agreed to gather information on behalf
of the United States Government.
4.

What crimes or other breaches of law (including jurisdiction and case number)

have such informant(s) committed or were suspected of having committed at any time during
which he/she agreed to gather information or testify on behalf of the United States Government.
5.

Whether any potential or actual criminal charges against any

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informant/undercover agent were abandoned, altered, or otherwise disposed of upon agreement

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with any such informant to gather information or testify on behalf of the United States

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Government.

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6.

What financial arrangements existed or exist between any informant/undercover

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agent and the agencies of the United States, the District of Nevada, or any other sister state, and

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the amount of money that has been paid to the informant.

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7.

The names, addresses and criminal records (including juvenile records) of any

informant to be called as a witness for the United States Government.

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The substance of any plea bargain(s) entered into by the informant and any

agency of the United States, the District of Nevada, or any other state, and the authority for any
such plea bargain(s).

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Case 2:16-cr-00046-GMN-PAL Document 1451 Filed 01/29/17 Page 6 of 7

9.

The substance of any agreements made by the United States, the District of

Nevada, or any other state with any informant not to charge crimes, and the authority for any

such agreements.

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Information tending to show bias and/or prejudice on the part of any informant.

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Information tending to show that any informant has made contradictory or

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inconsistent statements relative to this case, any related case, or with regard to Mr. Drexler.
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Information tending to show that any informant suffered from any material defect

in perception, memory, veracity or articulation during any time period relevant to the witness'
testimony in this case.

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Mr. Drexler, Mr. Stewart and Mr. Parker have been in custody for over 11 months now.
They are facing an exorbitant amount of prison time. Because these disclosures must be made
at a time when [the Brady and GigIio material] would be of value to the accused, United States v.

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Davenport, 753 F.2d 1460, 1462 (9th Cir. 1985), as stated, that time has passed pursuant to this

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courts explicit order docket #1017. Therefore, Mr. Drexler asks the court to preclude the

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government from allowing the unidentified informant to testify at trial in order to ensure that Mr.

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Drexlers Speedy Trial rights are protected.

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Respectfully Submitted this 29th day of January 2017.

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_______________/s/_________________

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Todd M. Leventhal, ESQ

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Case 2:16-cr-00046-GMN-PAL Document 1451 Filed 01/29/17 Page 7 of 7

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PROOF OF SERVICE
When all Case Participants are Registered for the Appellate CM/ECF System
I hereby certify that on ____1/29_________, 2017, I electronically filed the foregoing with the
Clerk of the Court for the United States District Court by using the appellate CM/ECF system. I
further certify that all participants in the case are registered CM/ECF users and that service will

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be accomplished by the appellate CM/ECF system.

/s/ Todd M. Leventhal
Signature

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