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Case 2:16-cr-01012-SRB Document 121 Filed 04/04/17 Page 2 of 5
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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 Governments 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 Defendants 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 Courts 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 Defendants 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 Governments arguments in defense of its dilatory disclosures do not mitigate the harm and
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prejudice caused to Defendant. Therefore, Defendants 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 Courts 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 Courts 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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