1 IN THE UNITED STATES DISTRICT COURT

 2 DISTRICT OF ARIZONA

 3 United States of America CR-18-223-TUC-RCC(BPV)

 4 vs. 

 5 Scott Daniel Warren, January 14, 2019 

 10:00 a.m. 

 6 Defendant. Tucson, Arizona

______________________________ 

 7

 8 REPORTER'S OFFICIAL TRANSCRIPT OF PROCEEDINGS

 9 MOTION HEARING

 10 BEFORE THE HONORABLE RANER C. COLLINS 

UNITED STATES DISTRICT JUDGE

 11

 12 A P P E A R A N C E S

 13 For the Government:

 14 Anna Roberta Wright

Nathaniel Jacob Walters

 15 United States Attorney's Office

405 West Congress

 16 Tucson, Arizona 85701

 17 For the Defendant:

 18 Amy Pickering Knight

Gregory John Kuykendall

 19 Kuykendall & Associates

531 South Convent Avenue

 20 Tucson, Arizona 85701

 21

 22 Court Reporter: Erica R. McQuillen, RDR, CRR

 Official Court Reporter

 23 405 W. Congress Street

 Tucson, Arizona 85701

 24 (520)205-4267

 25 Proceedings Reported by Stenographic Court Reporter 

Transcript Prepared by Computer-Aided Transcription

1

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 1 P R O C E E D I N G S

 2 THE CLERK: In Criminal Matter 18-223, United States 

 3 vs. Scott Daniel Warren, on for a motion hearing. 

 4 Counsel, please state your appearances.

 5 MS. WRIGHT: Good morning, Your Honor. Anna Wright 

 6 and Nathaniel Walters on behalf of the United States.

 7 THE COURT: Good morning.

 8 MR. WALTERS: Good morning.

 9 MR. KUYKENDALL: Good morning. Greg Kuykendall and 

 10 Amy Knight on behalf of Dr. Scott Warren, who is present, out 

 11 of custody.

 12 THE COURT: Good morning. Your motion. You may 

 13 proceed.

 14 MR. KUYKENDALL: Judge, I think it's important to 

 15 backtrack just a hair and explain why we originally filed a 

 16 motion regarding selective enforcement and seeking discovery 

 17 on that claim.

 18 The law is pretty clear that, absent discovery, I 

 19 can't -- I can't simply make a selective enforcement motion to 

 20 dismiss. I need to obtain discovery, and that discovery, just 

 21 by virtue of its nature, is going to always be controlled by 

 22 the prosecution.

 23 Consequently, we made a motion for disclosure and 

 24 sought a number of things, and Judge Velasco gave us a very 

 25 limited portion in his order of what we were seeking. And 

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 1 it's also important to understand that, in the context of this 

 2 motion, Border Patrol apparently was aware that the location 

 3 known as the Barn out in Ajo had been used by No More Deaths 

 4 volunteers for a period of time as a staging area, a staging 

 5 area to provide humanitarian aid to allow volunteers to sleep 

 6 there and to hold literally pallets of water and pallets of 

 7 food that the No More Deaths volunteers and other 

 8 organizations would take out on known trails and leave for 

 9 migrants in the desert. That's what Border Patrol knew of 

 10 prior to this time. 

 11 Also, apparently Border Patrol had word that a 

 12 migrant or perhaps two migrants were in the Ajo area, which 

 13 frankly is not at all unusual, but they had no information 

 14 whatsoever that there were any migrants at the Barn. And as 

 15 the Court well knows, Ajo is not a teeming metropolis, but 

 16 it's several thousand homes. It's a huge square mileage area. 

 17 It does not at all create a logical choice to focus on the 

 18 Barn simply because of the knowledge that there's a couple of 

 19 migrants in Ajo somewhere. So that's the context in which we 

 20 made our motion for selective enforcement. 

 21 The other thing that's critical to understand is, on 

 22 the very day that Border Patrol set up their surveillance 

 23 across the street from the Barn, earlier that day, No More 

 24 Deaths had distributed very widely a press packet and a study, 

 25 as well as really explosive video that showed Border Patrol 

3

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 1 agents intentionally vandalizing water that had been left out 

 2 for migrants. 

 3 And in addition to that, the Border Patrol folks in 

 4 Tucson sent it to the Border Patrol, the head of the Border 

 5 Patrol in Ajo, on the morning of, for the first time ever, 

 6 surveillance that gets set up at the Barn. 

 7 So that's the context in which we made the motion 

 8 seeking some disclosure relative to selective enforcement so 

 9 that we could make our claim, so that we could properly file a 

 10 motion to dismiss for selective enforcement.

 11 Judge Velasco ordered that the two agents, Burns and 

 12 Marquez, all of the texts that they had -- or emails that they 

 13 had received or sent -- and now I'm mistaken. I think it was 

 14 only either sent or received. But either way, either sent or 

 15 received on the day of the decision to not only arrest 

 16 Dr. Warren, but to set up surveillance of the Barn for the 

 17 first time, he ordered that all of that be provided to defense 

 18 counsel so that defense counsel could properly investigate and 

 19 make a selective enforcement claim.

 20 Subsequent to that, Ms. Knight and I constantly were 

 21 contacting the prosecution saying, where's our information? 

 22 When are you going to make that disclosure? And rather than 

 23 be straight with us and tell us that they weren't going to 

 24 make the disclosure to us, what they did was they sent a 

 25 letter to Judge Velasco on December 3. 

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 1 And in the letter, rather than simply make it a 

 2 transmittal letter of saying, here's some -- here's some 

 3 disclosure for your in camera review, they argued their case 

 4 again. And they said, quote, "While the Court's order 

 5 required disclosure of all texts or emails, upon further 

 6 review, many of the texts and emails sent or received during 

 7 the relevant time period" -- which is a single day -- "do not 

 8 fall within Government's disclosure obligations, and for the 

 9 reasons discussed below," where they go on to argue their 

 10 motion ex parte that's essentially a motion for 

 11 reconsideration, "the Government respectfully seeks to 

 12 disclose only those materials that implicate the disclosure 

 13 obligations under Federal Rules of Procedure 16, 26.2, Federal 

 14 Rules of Evidence 404(b), 609, Brady, Giglio," these things 

 15 that they're obligated to provide in the first place, even if 

 16 we haven't made a Sellers motion, even if we haven't -- or an 

 17 Armstrong motion, even if we haven't claimed selective 

 18 prosecution or selective enforcement.

 19 So clearly what the Government did, rather than 

 20 simply seek in camera review, is they argued a motion for 

 21 reconsideration in an ex parte manner, and we only found out 

 22 about it because Judge Velasco, when he denied our motion for 

 23 reconsideration, rather our motion to compel that disclosure 

 24 be provided, he gave it to us.

 25 So -- and in response to the motions that we filed 

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 1 that have precipitated today's hearing, rather than actually 

 2 explain why they decided to ex parte a federal judge, rather 

 3 than deal with their ex parte behavior whatsoever, they say, 

 4 oh, oh, it's a -- Sellers has approved in camera review. 

 5 Well, that has nothing to do with it. That's like 

 6 saying, you know, the FDA has approved Cheerios for breakfast 

 7 independent of whether I shoplifted the Cheerios, you know 

 8 ignore that, because this is what they've done. They've 

 9 ex-parte'd a federal judge. They have reargued their motion. 

 10 They've effectively asked for reconsideration of it. And they 

 11 have never even acknowledged in these pleadings that they did 

 12 anything wrong. 

 13 And that gives me pause, and that's why, if they 

 14 don't even recognize that this is something really 

 15 significantly improper to do in a federal court proceeding, 

 16 any court proceeding, this is basic, if they don't recognize 

 17 that, and frankly if Judge Velasco doesn't recognize that, 

 18 then we are in a terribly precipitous position to litigate 

 19 further with them and in front of Judge Velasco. 

 20 And that's why we've asked this Court to reconsider 

 21 the order relative to compelling the disclosure, give us all 

 22 of what he ordered, what he originally ordered, and likewise 

 23 keep the rest of the pretrial litigation in this case here in 

 24 this District Court for you, personally, to decide. 

 25 Because there's not just an appearance of 

6

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 1 impropriety, not just an appearance of impropriety in this 

 2 case, but there's a pall of impropriety on the District of 

 3 Arizona if this is allowed to go on. 

 4 And I finally just want to point out that it's not 

 5 just one paragraph in here where the -- where the Government 

 6 is arguing its case to the judge. We've also got on a second 

 7 page they indicate, "In addition, Exhibits P through R relate 

 8 to this matter but do not implicate the Government's 

 9 disclosure obligations".

 10 So once again they're arguing. This should have 

 11 been just a transmittal letter, if they were going to do it at 

 12 all, but they should have notified us if they were going to do 

 13 it, and it certainly shouldn't be ex-parte'ing the federal 

 14 magistrate, and that's why we're seeking the relief that we 

 15 are seeking.

 16 THE COURT: Thank you. 

 17 Ms. Wright?

 18 MS. WRIGHT: Thank you, Your Honor. 

 19 The in camera submission in this case that we 

 20 submitted to Judge Velasco is approved across many contexts, 

 21 including Sellers. There is no requirement in in camera 

 22 submissions that the defense be consulted. 

 23 First, there is no requirement that we set out good 

 24 cause in a letter, submission letter, to the Court. The 

 25 Government was trying to comply with Judge Velasco's order by 

7

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 1 submitting these materials to him. Judge Velasco obviously 

 2 was aware of the governing law and of his own order. He's the 

 3 one who issued the order. That is all that we were doing, was 

 4 seeking to comply with his order.

 5 There is not -- defense has in its motions alleged 

 6 that this is part of an ongoing pattern of misbehavior. There 

 7 are no facts to support that, and I'm happy to go into those 

 8 prior instances if the Court wants, but there is no support 

 9 that there's a pattern of misconduct, that there was 

 10 misconduct here in the situation. In camera submissions are 

 11 common to deal with disclosure issues. That is all that the 

 12 Government did in this case.

 13 I just wanted to note, as a procedural matter, Your 

 14 Honor, that this hearing was set on the defense's motion to 

 15 reconsider, but they have since also filed a motion for 

 16 sanctions based essentially on the same allegations. The 

 17 Government's time to respond has not expired yet, and if it 

 18 would be helpful to the Court, we will respond in writing, but 

 19 I'm also happy to address the Court's concerns today.

 20 Your Honor --

 21 THE COURT: I'd prefer to hear everything today if 

 22 we can.

 23 MS. WRIGHT: Absolutely, and I thought, since the 

 24 matters overlapped, I would take that on, but I didn't want to 

 25 if the Court didn't want to hear about that.

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 1 So just to discuss the two additional quote/unquote 

 2 instances of misconduct that are in the latest filing 

 3 regarding the disclosure prior to the video depositions, there 

 4 is an allegation that the Government withheld a portion of a 

 5 material witness interview on purpose. 

 6 There is no facts to support that. We disclosed the 

 7 reports that had the substance of the interviews. I received 

 8 a nonspecific request from defense counsel for all of the 

 9 interviews. I reviewed my file, I saw that everything that 

 10 was in my file as to that issue had been disclosed to defense 

 11 counsel, and so I took no further steps. Once she gave me a 

 12 specific request saying, this is what I think I am missing, I 

 13 got it as soon as I could. 

 14 The same sort of situation with the gas station 

 15 security cameras that were at issue. The Government disclosed 

 16 its first report. The report is a one-page report Bates 

 17 stamped 101 on February 8th. We received another copy of that 

 18 just before the video depositions which were scheduled for 

 19 March 2nd. We disclosed that on March 1st. 

 20 The only difference between those two reports is 

 21 there's a signature at the bottom of one and there's a 

 22 different date. Otherwise, they are verbatim the same. 

 23 And so defense counsel looked at the report that was 

 24 given on March 1st and found they were missing some gas 

 25 station surveillance cameras, and then they asked us for that 

9

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 1 information. I looked in my file the morning I received that 

 2 motion, which was 7:30 a.m. the morning of the depositions, 

 3 saw that I had given over everything I had. As it turned out 

 4 later, the station had not given to the case agent one 

 5 additional portion of the security camera surveillance. 

 6 And I think it's worth noting that, during the video 

 7 depositions, no mention was made by the defense of the 

 8 surveillance camera footage. It did not play a crucial part 

 9 in what was their actual -- their actual work at the video 

 10 depositions. 

 11 Finally, I'd just like to address the serious 

 12 allegation that somehow the entire United States Attorney's 

 13 Office is prejudiced against this defendant by virtue of the 

 14 words in an outgoing voicemail message set up to receive calls 

 15 from a call-in campaign organized by No More Deaths. The box 

 16 was directed to the United States vs. No More Deaths. 

 17 Your Honor, it is No More Deaths and the defense who 

 18 have characterized these prosecutions as being targeted 

 19 against No More Deaths. Almost every filing in all of the 

 20 cases references the status of the defendant as a No More 

 21 Deaths volunteer, and they often include the No More Deaths 

 22 history and mission in their fact and analysis section. 

 23 The entire defense is based around the status as a 

 24 No More Deaths volunteer, and No More Deaths has mounted a 

 25 significant public relations campaign where they often 

10

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 1 reference all of the related defendants as a whole, and in 

 2 fact, the script that they put out into the public for this 

 3 call-in campaign again references the defendants as a whole as 

 4 No More Deaths defendants. 

 5 So the outgoing message was a reasonable way to let 

 6 the public who was calling in know what voicemail box they had 

 7 reached, that they had gotten to the right place. And it's 

 8 worth noting that, of the callers who called in, many did not 

 9 know the names of the defendants they were calling about or 

 10 the case numbers. All that some of these people knew when 

 11 they called in was that the defendants they were calling about 

 12 were related to No More Deaths. So that was the most 

 13 efficient way to let them know, because that was the common 

 14 denominator. 

 15 Your Honor, I've set out the legal standard to 

 16 disqualify a judge in my written response to the motion to 

 17 reconsider. That's a very high standard. There's no evidence 

 18 that Judge Velasco should be disqualified. In addition -- and 

 19 the cites are all in our response to the motion to dismiss 

 20 based on international law where, again, there was the specter 

 21 of misconduct raised because we had filed an indictment. 

 22 That standard is in that motion, and it's a very 

 23 high standard to disqualify or dismiss for misconduct a 

 24 prosecutor, and that standard's not met here because there's 

 25 simply no evidence of misconduct or a pattern of misconduct. 

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 1 Your Honor, unless you have questions, that's all I 

 2 have.

 3 THE COURT: When Judge Velasco ordered the 

 4 disclosure in the case, did he ask it to be submitted in 

 5 camera? 

 6 MS. WRIGHT: He did not, Your Honor. That was a 

 7 choice that my office made --

 8 THE COURT: Why? 

 9 MS. WRIGHT: -- or that I made.

 10 THE COURT: Why?

 11 MS. WRIGHT: Because the order, there was a line 

 12 directly preceding the, "It is ordered." What we received, 

 13 parts of it were privileged in terms of being law enforcement 

 14 sensitive. Parts of it were completely unrelated to anything 

 15 to do with this case. 

 16 And we had concerns that, even though there was a 

 17 protective order in place, that some of those things would be 

 18 -- we were concerned about letting things that were not 

 19 related to the case, to disclosing those, and so we submitted 

 20 in camera.

 21 THE COURT: Why not let Mr. Kuykendall know that you 

 22 were doing that? 

 23 MS. WRIGHT: Your Honor, there's no requirement that 

 24 we do.

 25 THE COURT: I understand there's no requirement. My 

12

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 1 question was only, why didn't you let him know? 

 2 MS. WRIGHT: I was concerned with getting things 

 3 moving quickly, Your Honor. It took me some time to gather 

 4 everything.

 5 THE COURT: The way Mr. Kuykendall plays it, he's on 

 6 the phone every day trying to get stuff from you guys, so 

 7 you'd have probably had your normal daily contact with him.

 8 MS. WRIGHT: And that may be, Your Honor, and 

 9 perhaps in hindsight that would have been a good step to take, 

 10 but because it wasn't required, I went ahead and submitted to 

 11 Judge Velasco. This is the same sort of process I've followed 

 12 in the past with other types of materials that get submitted 

 13 in camera. I do not give defense a heads up. It was not 

 14 particular to this case, my process.

 15 THE COURT: Don't you think that, if there was an 

 16 order entered that said you should disclose something, that 

 17 absent some change in that order, that's what you should have 

 18 done?

 19 MS. WRIGHT: And Your Honor, we were seeking to make 

 20 sure we were complying with the order. I appreciate that, in 

 21 hindsight, maybe a different process would have been 

 22 appropriate, but we were seeking -- that was our intention, 

 23 was to comply with the order and give the defense what they 

 24 needed to mount their defense. That was always our intention.

 25 THE COURT: All right. Last words, Mr. Kuykendall? 

13

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 1 MR. KUYKENDALL: I think, Judge, it's important to 

 2 consider the prosecution has still not explained why they 

 3 argued their case to Judge Velasco. I mean, it's one thing to 

 4 send a transmittal letter because you think that's what should 

 5 be done. It's one thing to not trust me and Ms. Knight 

 6 because you don't think we should have sensitive information. 

 7 But there's not even anything in the letter where they argued 

 8 their case to Judge Velasco about it being law enforcement 

 9 sensitive. 

 10 I mean, there's no -- this isn't like a -- I just 

 11 forgot the name, the Court that takes all these ex parte 

 12 things up in Washington, the FISA --

 13 THE COURT: The Foreign Intelligent Surveillance 

 14 Court? 

 15 MR. KUYKENDALL: Right. This isn't the Foreign 

 16 Intelligent Surveillance Court. This is -- this is a basic 

 17 harboring case. The difference is, we have alleged with very 

 18 good reason that this is in retaliation for him exercising his 

 19 constitutional rights to be part of No More Deaths and for No 

 20 More Deaths to exercise its constitutional rights to point out 

 21 what's going on on the border. And it's in retaliation, and 

 22 the only way that we can get the information is by taking the 

 23 appropriate steps, which we've taken every step of the way. 

 24 And now we find out that the Government is not only 

 25 a sore loser but goes to the judge in secret and reargues its 

14

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 1 case. This isn't a close call. It says it doesn't -- that 

 2 the judge's disclosure order doesn't comport with the 

 3 Government's disclosure obligations. Well, of course. It's a 

 4 selective enforcement claim. It's distinct under Armstrong 

 5 and Sellers. The U.S. Supreme Court is clear about that in 

 6 Armstrong. It's a distinctive claim which implicates quite 

 7 distinctive disclosure obligations on the part of the 

 8 Government, which is why we had to file it in the first place. 

 9 It's nonsensical to go in and make a specious 

 10 argument of this nature to a judge, and particularly in an ex 

 11 parte proceeding, and say, oh, we don't have to give -- you 

 12 know, you made this order, but we don't have to give it up 

 13 because it doesn't comport with all of our other obligations. 

 14 The other obligations were there to begin with. 

 15 Kuykendall & Knight wouldn't have filed this motion in the 

 16 first place if it had been standard obligations. So it's -- 

 17 and it really is concerning to me as a lawyer practicing in 

 18 this district that the Government still doesn't address the ex 

 19 parte nature of it or the argument -- the argumentative nature 

 20 of it. They don't see that they did anything wrong. 

 21 And from a parental perspective, if a child doesn't 

 22 see that they've even done anything wrong, then there's 

 23 something wrong with the disciplinary aspect of the 

 24 parent/child relationship. I mean, right now the Government 

 25 is still sitting on its haunches and saying, Sellers says we 

15

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 1 can have in camera review, which is beside the point. 

 2 And that really is a concerning issue, and I didn't 

 3 come prepared today to argue the motion for sanctions. I'm 

 4 not sure if the Court's remark earlier meant that we should be 

 5 arguing that today, but if you want, I can argue it today.

 6 THE COURT: Go ahead. Argue it today. Let's -- 

 7 we're all here. I've read your motion.

 8 MR. KUYKENDALL: I think the law is clear that it's 

 9 certainly within this Court's discretion to dismiss the 

 10 indictment under these -- under what has occurred in this case 

 11 so far, and it's likewise in the Court's discretion to have a 

 12 lesser sanction of disqualifying the U.S. Attorney's Office 

 13 for the District of Arizona from this case. 

 14 Again, it's not a close call. We claimed -- and I 

 15 think what's important to understand is, our claim in the 

 16 first place of retaliatory -- selective enforcement, which is 

 17 essentially a retaliation against Dr. Warren, is that the 

 18 Government was misconducting itself, the Government agents 

 19 were misconducting itself, and now the Government prosecutors 

 20 are misconducting themselves in order to prevent us from 

 21 obtaining disclosure that we are entitled to under the 

 22 magistrate's order after a fair fight so that we can actually 

 23 document and prove that the Government's been misconducting 

 24 itself.

 25 THE COURT: Something was ultimately disclosed to 

16

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 1 you; correct?

 2 MR. KUYKENDALL: Something, yeah, something that 

 3 tipped us off that they hadn't disclosed everything.

 4 THE COURT: Well --

 5 MR. KUYKENDALL: But we did get something.

 6 THE COURT: You got something pursuant to Judge 

 7 Velasco's order? 

 8 MR. KUYKENDALL: We -- yeah. That's right. We did 

 9 get something.

 10 THE COURT: And then, as I understand it, he did the 

 11 in camera review and said, none of this other stuff matters; 

 12 correct? 

 13 MR. KUYKENDALL: Basically that's what he said, and 

 14 I don't -- I think it's important to understand that Judge 

 15 Velasco is clearly not me, is clearly not a defense lawyer, 

 16 doesn't know --

 17 THE COURT: You do know that's how he began his 

 18 practice? 

 19 MR. KUYKENDALL: I do know.

 20 THE COURT: For many years.

 21 MR. KUYKENDALL: I'm no spring chicken and neither 

 22 is he.

 23 THE COURT: He's quite proud of that. He's quite 

 24 proud of the fact that he began as a defense lawyer, and he 

 25 holds all defense lawyers to high standards.

17

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 1 MR. KUYKENDALL: He's held me to high standards. 

 2 I've known him as long as I've known you, Judge, and I respect 

 3 both of you. I think that something significantly egregious 

 4 occurred here. I'm not -- I'm not here to paint Judge Velasco 

 5 in a bad light or claim that he's anti defense lawyer or that 

 6 he's anti me or anything else. I have known both of you since 

 7 being on the Superior Court, well, 30 years ago is when I 

 8 started, and both of you were quite kind to me. I've 

 9 practiced in front of you since then. 

 10 But the fact is, substantive ex parte communication 

 11 occurred between the prosecution and Judge Velasco. I 

 12 mean, this isn't like running into each other at a cocktail 

 13 party or riding the elevator up together. This was an 

 14 intentional motion for reconsideration which was ex parte, and 

 15 it's because of that, it's because of that intention, within 

 16 the context of a governmental misconduct claim to begin with, 

 17 that continues to hide evidence from us, it's because of that 

 18 intention that I believe the Court should dismiss the 

 19 indictment, or at a minimum, take the U.S. Attorney's Office 

 20 for the District of Arizona off of this case.

 21 THE COURT: Okay. At the outset, what I'm going to 

 22 do is, I'm going to order that Judge Velasco's order initially 

 23 disclosing the matter to you, the texts, whatever they were, 

 24 the emails, that they be provided to me, those that the 

 25 prosecutors thought were relevant and those they thought were 

18

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 1 irrelevant, and I will do an in camera inspection. The rest 

 2 of the case I'm going to take under advisement. 

 3 When is the next hearing set in this case? I think 

 4 there's a trial date sometime in the ether.

 5 MS. WRIGHT: Your Honor, the trial date is today.

 6 THE COURT: Today is the trial date. Are we ready 

 7 to go?

 8 MS. WRIGHT: Your Honor, I believe -- I believe it 

 9 was Ms. Knight had moved, and with our concurrence, obviously, 

 10 to have a status/scheduling conference today so we could get 

 11 some realistic dates on the calendar.

 12 THE COURT: Sure. That makes sense.

 13 MS. WRIGHT: And I don't know that we've had an 

 14 opportunity to talk about those. I can tell the Court that at 

 15 least as far as Mr. Walters and I are concerned, we have 

 16 several more of these cases to try. I think the last one's in 

 17 March. And so sometime after March would work for us, but 

 18 I'll take my seat.

 19 THE COURT: Mr. Kuykendall?

 20 MR. KUYKENDALL: I'm sorry. I had --

 21 THE COURT: I was thinking about a potential trial 

 22 date, and she was saying sometime after March.

 23 MR. KUYKENDALL: I think that's reasonable.

 24 THE COURT: There is a lot after March. When? You 

 25 know, it's April, May, June, July. There's a lot after March.

19

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 1 MR. KUYKENDALL: Well, I don't want it -- I don't 

 2 want it to be hot when we do the trial. 

 3 One thing I did want to clear up, Judge, though, in 

 4 terms of this Court doing an in camera review, I think it's 

 5 important to understand and for us to be able to argue what 

 6 the standard of review is for the Court's in camera review, 

 7 because from my perspective the appropriate standard of review 

 8 is, does it comport with Judge Velasco's order, which was, 

 9 turn it over, in other words, not a relevancy review, not a 

 10 secrecy review, not can we trust Kuykendall review, but do 

 11 what Judge Velasco said in the first place, and if you can 

 12 review all of the documentation that the Government provided 

 13 and say, does this comport with what Velasco said in the first 

 14 place, then yes, give it all to us. 

 15 But I don't think it's appropriate for the Court to 

 16 put itself in the place of a defense lawyer, partly because 

 17 this Court was never a defense lawyer.

 18 THE COURT: That's true, at least not in a criminal 

 19 case.

 20 MR. KUYKENDALL: Anyhow, I don't think that that's 

 21 appropriate, for there to be some new standard of review, but 

 22 rather does it comport with Judge Velasco's original order. I 

 23 think that would be the appropriate review.

 24 In terms of a trial date, I think April, is that -- 

 25 April would work.

20

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 1 THE COURT: April is out for me.

 2 MR. KUYKENDALL: What month are we talking about? 

 3 THE COURT: Any time except April and March.

 4 MR. KUYKENDALL: How about May? 

 5 THE COURT: May works.

 6 MR. KUYKENDALL: Let me just double triple verify 

 7 here. 

 8 May works for me too.

 9 THE COURT: Wait, wait, wait. Just one second. 

 10 How long do you think the trial's going to take if 

 11 it goes to trial? Three, four weeks? That's the impression 

 12 I'm getting today.

 13 MR. KUYKENDALL: I think it's two weeks.

 14 MS. WRIGHT: And, Your Honor, the Government's case, 

 15 tops two days, in terms of its case in chief, so that may be a 

 16 question better answered with motions in limine, and I was 

 17 going to ask the Court to set some motions deadlines so that 

 18 we stay on track for whatever trial date the Court sets.

 19 THE COURT: From --

 20 MR. KUYKENDALL: And if the Court's making a "six of 

 21 one, half a dozen of the other" sort of decision, late May is 

 22 better for my client.

 23 THE COURT: I'm looking at May 28. That's pretty 

 24 darn late.

 25 MR. KUYKENDALL: So -- and would the Court have the 

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 1 week beginning June 3 too? 

 2 THE COURT: Yes. I'd have that week available also.

 3 MR. KUYKENDALL: That works for the defense.

 4 THE COURT: Let's set the trial date for the -- 

 5 let's make it the 29th, because the 28th is going to be like 

 6 our law and motion day. So we'll start on the 29th. 

 7 Any motions need to be filed by -- how about March 

 8 15th?

 9 MR. KUYKENDALL: Okay.

 10 THE COURT: That'll give us time to hear them once 

 11 they're filed. All right? May 29th work for a trial date?

 12 MS. WRIGHT: Yes, Your Honor. It does. 

 13 And Your Honor, as far as the Court reviewing the 

 14 materials that Judge Velasco saw, I have the same exact packet 

 15 here, if I can provide it to the clerk once we're done here 

 16 today.

 17 THE COURT: Please do.

 18 MR. KUYKENDALL: Judge, that motions deadline, that 

 19 doesn't apply to motions in limine, does it?

 20 THE COURT: It does not.

 21 MR. KUYKENDALL: Okay.

 22 THE COURT: Does your client waive time? 

 23 MR. KUYKENDALL: Yes.

 24 THE COURT: All right. I'll see you on May 29th, if 

 25 not before. I have a feeling I'll see you before.

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 1 MS. WRIGHT: Thank you, Judge.

 2 THE COURT: Ms. Wright, if you'll give me that 

 3 packet, please.

 4 MS. WRIGHT: Yes, sir.

 5 THE COURT: Thank you.

 6 (Proceedings conclude as to this matter at 

 7 10:32 a.m.)

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Case 4:18-cr-00223-RCC-DTF Document 168 Filed 02/08/19 Page 23 of 24
 1 C E R T I F I C A T E

 2

 3 I, Erica R. McQuillen, Federal Official Realtime 

 4 Reporter, in and for the United States District Court for the 

 5 District of Arizona, do hereby certify that, pursuant to 

 6 Section 753, Title 28, United States Code, the foregoing is a 

 7 true and correct transcript of the stenographically reported 

 8 proceedings held in the above-entitled matter and that the 

 9 transcript page format is in conformance with the regulations 

 10 of the Judicial Conference of the United States.

 11 Dated this 8th day of February, 2019.

 12

 

 13 s/Erica R. McQuillen 

 Erica R. McQuillen, RDR, CRR

 14 Federal Official Court Reporter

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