Case 1:20-cr-00152-PAB Document 294 Filed 07/26/21 USDC Colorado Page 1 of 9
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLORADO
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`Criminal Case No. 20-cr-00152-PAB
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`UNITED STATES OF AMERICA,
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`Plaintiff,
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`v.
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`JAYSON JEFFREY PENN,
`1.
`MIKELL REEVE FRIES,
`2.
`SCOTT JAMES BRADY,
`3.
`ROGER BORN AUSTIN,
`4.
`TIMOTHY MULRENIN,
`5.
`6. WILLIAM VINCENT KANTOLA,
`JIMMIE LEE LITTLE,
`7.
`8. WILLIAM WADE LOVETTE,
`GARY BRIAN ROBERTS, and
`9.
`RICKIE PATTERSON BLAKE,
`10.
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`Defendants.
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`DEFENDANTS’ JOINT MOTION FOR IDENTIFICATION OF EVIDENCE WHICH
`THE GOVERNMENT INTENDS TO USE IN ITS CASE-IN-CHIEF AT TRIAL
`AND BRIEF IN SUPPORT THEREOF
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`Defendants Gary Brian Roberts, Jayson Jeffrey Penn, Mikell Reeve Fries, Scott James
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`Brady, Roger Born Austin, William Vincent Kantola, Jimmie Lee Little, William Wade Lovette,
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`and Rickie Patterson Blake file this Joint Motion for Identification of Evidence Which The
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`Government Intends to Use in Its Case-In-Chief at Trial and Brief in Support Thereof, and
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`respectfully move, pursuant to Federal Rule of Criminal Procedure 16(a)(1)(E), for an order from
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`the Court directing the Government to identify the specific evidence which it intends to use in its
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`case-in-chief in the trial in this action by September 1, 2021.
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`Case 1:20-cr-00152-PAB Document 294 Filed 07/26/21 USDC Colorado Page 2 of 9
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`I. INTRODUCTION
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`The deadline for the parties to file pretrial motions in this action has arrived. See Doc. #
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`264, p. 5. The trial in this action is set to commence in less than three months, and the Trial
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`Preparation Conference is scheduled for a little more than ten weeks from the date of this filing.
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`Id. at 5-6. As late as May, the trial in this matter was set to commence next week. Id. at 5.
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`In spite of these deadlines, the Government has continued its rolling production of
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`discovery to the defendants. On July 16, 2021, and July 20, 2021, the Government produced more
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`than 100,000 additional documents to the defense, and on July 19, 2021, the Government sent a
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`60-page letter to counsel for the defendants, pursuant to Federal Rules of Criminal Procedure 16(a)
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`and 26.2, 18 U.S.C. § 3500, and Brady v. Maryland, 373 U.S. 83 (1963). The letter summarizes
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`extensive evidence obtained by the Government during the course of its investigation. The total
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`number of documents disgorged by the Government onto the defense has now exceeded 14 million.
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`Mr. Roberts, Mr. Penn, Mr. Fries, Mr. Brady, Mr. Austin, Mr. Kantola, Mr. Little, Mr.
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`Lovette, and Mr. Blake (collectively “Defendants”) possess a Sixth Amendment right to a fair trial
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`and to present a defense. See United States v. Bradshaw, 580 F.3d 1129, 1135 (10th Cir. 2009)
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`(quoting United States v. Serrano, 406 F.3d 1208, 1214–1215 (10th Cir. 2005)). In view of these
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`rights, and the Government’s voluminous and ongoing production of discovery in this case, the
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`Court possesses highly compelling grounds to order the Government to identify well in advance
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`of trial the specific evidence it intends to introduce in its case-in-chief. The adversary system is
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`not “‘a poker game in which players enjoy an absolute right always to conceal their cards until
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`played.’” Wardius v. Oregon, 412 U.S. 470, 474 (1973) (quoting Williams v. Florida, 399 U.S. 78,
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`82 (1970)). Defendants should not be denied a fair trial and prejudiced in his ability to defend
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`Case 1:20-cr-00152-PAB Document 294 Filed 07/26/21 USDC Colorado Page 3 of 9
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`themselves at trial by the Government’s strategy of inundating the Defendants with massive waves
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`of alleged evidence.
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`II. APPLICABLE LAW AND ARGUMENT
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`Federal Rule of Criminal Procedure 16(a)(1)(E) requires the Government to produce to a
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`defendant items within the Government’s possession, custody, or control where the “(i) the item
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`is material to preparing the defense; [or] (ii) the government intends to use the item in its case-in-
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`chief at trial” Fed.R.Crim.P. 16(a)(1)(E). Rule 16(a)(1)(E) does not, on its face, require the
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`government to identify the evidence which it intends to use the item in its case-in-chief at trial. See
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`id. The Government is presently not required to identify the exhibits it will introduce at trial until
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`two days prior to the Trial Preparation Conference. See Practice Standards (Criminal Cases), Chief
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`Judge Philip A. Brimmer, United States District Court, District of Colorado, § IV(A)(2) (December
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`1, 2020).
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`As the Supreme Court has observed, however, “the ends of justice [are] best [ ] served by
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`a system of liberal discovery which gives both parties the maximum possible amount of
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`information with which to prepare their cases and thereby reduces the possibility of surprise at
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`trial.” Wardius v. Oregon, 412 U.S. 470, 473 (1973) (citing Brennan, The Criminal Prosecution:
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`Sporting Event or Quest for Truth?, 1963 Wash.U.L.Q. 279; American Bar Association Project on
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`Standards for Criminal Justice, Discovery and Procedure Before Trial 23-43 (Approved Draft
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`1970); Goldstein, The State and the Accused: Balance of Advantage in Criminal Procedure, 69
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`Yale L.J. 1149 (1960)).
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`Furthermore, while some courts have denied general disclosure motions in other cases, see
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`United States v. Flores, No. 19-CR-522-WJM, 2020 WL 3129173, at *4 (D. Colo. June 12, 2020)
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`(denying the defendant’s motion when government already identified case-in-chief information);
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`United States v. Alvarez-Gonzalez, No. 12-CR-00242-WJM, 2013 WL 4883054, at *3 (D. Colo.
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`Sept. 12, 2013), those courts have noted that they “can appreciate that there may be beneficial
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`reasons to require the Government to more specifically identify the evidence it intends to use
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`earlier in the discovery process,” Alvarez-Gonzalez, 2013 WL 4883054, at *3.
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`The Court plainly possesses authority to order the Government to make early disclosure of
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`the evidence which it intends to use in its case-in-chief at trial. “[B]ased on the policy concerns of
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`[Federal Rule of Criminal Procedure] 16 and principles of fairness, it is within a district court’s
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`authority to direct the Government to identify the documents it intends to rely on in its case in
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`chief.” United States v. Giffen, 379 F.Supp.2d 337, 344 (S.D.N.Y. 2004) (citing United States v.
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`Upton, 856 F.Supp. 727, 748 (E.D.N.Y. 1994); United States v. Turkish, 458 F.Supp. 874, 882
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`(S.D.N.Y. 1978)). The Federal Rules themselves furthermore allude to a trial court’s authority to
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`order such early notice, as evidenced by Federal Rule of Criminal Procedure 12(b)(4), which
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`provides that:
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`At the arraignment or as soon afterward as practicable, the defendant may, in order
`to have an opportunity to move to suppress evidence under Rule 12(b)(3)(C),
`request notice of the government’s intent to use (in its evidence-in-chief at trial)
`any evidence that the defendant may be entitled to discover under Rule 16.
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`Fed. R. Crim. P. 12(b)(4)(B).
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`Other courts have held that it is proper to require the Government to identify the documents
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`or evidence which it intends to use in its case-in-chief at trial in cases with voluminous documents
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`or evidence. See United States v. Poindexter, 727 F. Supp. 1470, 1484 (D.D.C. 1989) (ordering
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`the government to identify with specificity its case-in-chief documents, finding that there was no
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`reason why the government “cannot be more specific as to which documents it currently intends
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`to use, and there are many reasons, grounded in fairness to the defendant, the protection of his
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`rights, and not least Rule 16(a)(1)(C), why it should”); Turkish, 458 F.Supp. at 882 (ordering the
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`government to afford the defendants an opportunity to inspect and copy all documents under the
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`control of the government which “are intended for use by the government as evidence in chief at
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`the trial”).
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`Directing the Government to disclose the specific evidence that it intends to use in its case-
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`in-chief is supported by United States v. Upton, 856 F. Supp. 727 (E.D.N.Y. 1994), in which the
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`government indicted a dozen individuals on charges of falsifying of airplane maintenance records,
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`and the government produced “thousands” of pieces of paper to the defendants, id. at 733, 747.
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`The trial court granted the defendants’ motion requesting that the government identify which
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`documents it planned to rely upon at trial, stating that “[t]he purpose of requiring the government
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`to identify which documents it will rely upon at trial in a situation such as this—where there are
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`thousands of documents—is to allow the defendant to adequately prepare his or her defense.” Id.
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`at 748.
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`In the instant case, the Court has even stronger grounds to require the prosecution to
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`disclose the specific evidence it intends to introduce during its case-in-chief at trial. The amount
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`of alleged evidence that the Government has dumped upon the Defendants currently consists of
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`over 14 million documents and is mounting. The Government’s ongoing productions force counsel
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`for the Defendants to divert from preparing to meet the Government’s case at trial in order to
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`review massive amounts of additional evidence. The Government has buried the Defendants in
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`mountains of alleged evidence, the vast majority of which is irrelevant and only an infinitesimal
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`fraction of which the Government can credibly be expected to introduce in any trial of this case.
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`Case 1:20-cr-00152-PAB Document 294 Filed 07/26/21 USDC Colorado Page 6 of 9
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`The Court should find that Defendants are entitled to notice of the specific items which the
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`Government intends to introduce in its case-in-chief at trial in order to enable Defendants to
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`adequately prepare their defenses and to help to ensure that the Defendants receive a fair trial. The
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`Defendants should not “be kept in the dark until trial…” Upton, 856 F. Supp. at 748. Considering
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`the Government’s haphazard approach to discovery in this complex criminal matter, Defendants’
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`request for identification of the evidence that the Government intends to use in its case-in-chief at
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`trial is reasonable, will aid in streamlining the issues for trial, and will promote judicial economy.
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`Accordingly, the Court should issue an order directing the Government to identify the specific
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`evidence which it intends to use in its case-in-chief by September 1, 2021.
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`III. CONCLUSION
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`Based upon the authorities and grounds set forth herein, Defendants Gary Brian Roberts,
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`Jayson Jeffrey Penn, Mikell Reeve Fries, Scott James Brady, Roger Born Austin, William Vincent
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`Kantola, Jimmie Lee Little, William Wade Lovette, and Rickie Patterson Blake respectfully
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`request that the Court grant Defendants’ Motion for Identification of Evidence Which The
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`Government Intends to Use in Its Case-In-Chief at Trial, and that the Court issue an order directing
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`the Government to identify the specific evidence which it intends to use in its case-in-chief in the
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`trial in this action by September 1, 2021.
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`Case 1:20-cr-00152-PAB Document 294 Filed 07/26/21 USDC Colorado Page 7 of 9
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`Respectfully submitted, this 26th day of July, 2021.
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`s/ Craig A. Gillen_______________________
`Craig A. Gillen
`GILLEN WITHERS & LAKE, LLC
`400 Galleria Parkway
`Ste 1920
`Atlanta, Georgia 30339
`Telephone: 404-842-9700
`Email: cgillen@gwllawfirm.com
`Counsel for Gary Brian Roberts
`
`s/ Richard K. Kornfeld ________________
`Richard K. Kornfeld
`Recht & Kornfeld, P.C.
`1600 Stout Street
`Suite 1400
`Denver, Colorado 80202
`Telephone: 303-573-1900
`Email: rick@rklawpc.com
`Counsel for Mikell Reeve Fries
`
`
`s/ Michael S. Feldberg___________________
`Michael S. Feldberg
`REICHMAN JORGENSEN LEHMAN &
`FELDBERG LLP
`750 Third Avenue
`24th Floor
`New York, New York 10017
`Telephone: 212-381-4970
`Email: mfeldberg@reichmanjorgensen.com
`Counsel for Roger Born Austin
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`/s John Anderson Fagg, Jr._______________
`John Anderson Fagg, Jr.
`MOORE & VAN ALLEN PLLC
`100 North Tryon Street
`Suite 4700
`Charlotte, North Carolina 28202
`Telephone: 704-331-1117
`Email: johnfagg@mvalaw.com
`Counsel for William Wade Lovette
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`s/ Michael F. Tubach______________
`Michael F. Tubach
`O'MELVENY & MYERS LLP
`Two Embarcadero Center
`28th Floor
`San Francisco, California 94111
`Telephone: 415-984-8876
`Email: mtubach@omm.com
`Counsel for Jayson Jeffrey Penn
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`s/ Bryan B. Lavine __________________
`Bryan B. Lavine
`Troutman Pepper Hamilton Sanders LLP
`600 Peachtree Street N.E.
`Suite 3000
`Atlanta, Georgia 30308
`Telephone: 404-885-3170
`Fax: 404-962-6613
`Email: bryan.lavine@troutman.com
`Counsel for Scott James Brady
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`s/ James A. Backstrom___________________
`James A. Backstrom
`JAMES A. BACKSTROM, COUNSELLOR
`AT LAW
`1515 Market Street
`Suite 1200
`Philadelphia, Pennsylvania 19102
`Telephone: 215-864-7797
`Email: jabber@backstromlaw.com
`Counsel for William Vincent Kantola
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`s/ Mark A. Byrne_______________________
`Mark A. Byrne
`BYRNE & NIXON LLP
`888 West Sixth Street
`Suite 1100
`Los Angeles, California 90017
`Telephone: 213-620-8003
`Fax: 213-620-8012
`Email: markbyrne@byrnenixon.com
`Counsel for Jimmie Lee Little
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`s/ Barry J. Pollack______________________
`Barry J. Pollack
`ROBBINS RUSSELL ENGLERT ORSECK
`& UNTEREINER LLP
`2000 K Street N.W.
`4th Floor
`Washington, DC 20006
`Telephone: 202-775-4514
`Fax: 202-775-4510
`Email: bpollack@robbinsrussell.com
`Counsel for Rickie Patterson Blake
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`Case 1:20-cr-00152-PAB Document 294 Filed 07/26/21 USDC Colorado Page 9 of 9
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`CERTIFICATE OF SERVICE
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`I hereby certify that on this 26th day of July, 2021, I electronically filed the foregoing
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`DEFENDANTS’ JOINT MOTION FOR IDENTIFICATION OF EVIDENCE WHICH
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`THE GOVERNMENT INTENDS TO USE IN ITS CASE-IN-CHIEF AT TRIAL with the
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`Clerk of Court using the CM/ECF system which will send notification of such filing to all listed
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`parties.
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`s/ Craig A. Gillen_______________________
`Craig A. Gillen
`GILLEN WITHERS & LAKE, LLC
`400 Galleria Parkway
`Ste 1920
`Atlanta, Georgia 30339
`Telephone: 404-842-9700
`Email: cgillen@gwllawfirm.com
`Counsel for Gary Brian Roberts
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`-9-
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