Case 2:08-cr TC-DBP Document 1590 Filed 04/11/14 Page 1 of 6

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1 Case 2:08-cr TC-DBP Document 1590 Filed 04/11/14 Page 1 of 6 Michael J. Langford, Utah State Bar #9682 LAW OFFICE OF MICHAEL J. LANGFORD, P.C. 43 East 400 South Salt Lake City, Utah Telephone: (801) Fax: (801) Michael@mjl-law.com Attorney for Siale Angilau IN THE UNITED STATES DISTRICT COURT DISTRICT OF UTAH, CENTRAL DIVISION UNITED STATES OF AMERICA, : MOTION TO EXCLUDE COOPERATING WITNESS Plaintiff, : v. : SIALE ANGILAU, : CASE NO. 2:08-CR Defendant. : Judge TENA CAMPBELL Siale Angilau, through his attorney, Michael Langford hereby moves the Court, pursuant to the VI Amendment to the United States Constitution, Federal Rule of Criminal Procedure 16(c), and for just cause, to exclude the Government s cooperating witness from testifying.

2 Case 2:08-cr TC-DBP Document 1590 Filed 04/11/14 Page 2 of 6 COOPERATING WITNESS On Tuesday April 8 th, 2014, less than two weeks before the beginning of trial, the Government alerted Mr. Angilau who they intend to call as a cooperating witness. Mr. Angilau s current understanding of the cooperating witness is that he is a Government witness regarding TCG, its structure, its participants, and its history. Mr. Angilau is unsure at this point whether the cooperating witness would be more properly qualified as an expert rather than a lay witness. Further, Mr. Angilau is surprised by the late introduction of the cooperating witness. The Government, upon their disclosure, provided the defense with six transcripts of audio recordings of Government interviews with the cooperating witness. The interviews span from 4/23/13 to 7/2/13 and involve criminal and gang related material. The defense also has in its possession two debriefing interviews conducted on 9/17/13 and 2/7/14. A surface-level court record check of the cooperating witness reveals that he has been charged with many 1 st, 2 nd, and 3 rd degree felonies as well as class A, B, and C misdemeanors since Finally, Mr. Angilau s initial investigative action on the revelation raises questions related to the cooperating witness time in prison, his relationship to Mr. Angilau, his relationship to TCG generally, and his relationship to defense counsel s client in another case. Specifically, the defense counsel represents a defendant in a homicide case where the cooperating witness was the intended victim. Defense counsel is initially timid regarding a potential conflict on that state homicide case. Mr. Angilau, near the beginning of the prosecution of this matter, filed discovery motions with the court. Mr. Angilau, through his previous counsel Edwin S. Wall, filed a 2

3 Case 2:08-cr TC-DBP Document 1590 Filed 04/11/14 Page 3 of 6 motion demanding disclosures of promises of leniency and prior false statements pursuant to Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). Case 2:08-cr TC-DBP, Document 216, Filed 06/02/10. Mr. Wall s motion was granted by the court on November 3 rd, Mr. Angilau believes, due to the cooperating witness criminal history and alleged gang affiliation, the Government has evidence relating to promises of lenience and prior false statements. ARGUMENT Mr. Angilau seeks to have the cooperating witness disqualified as a witness or alternatively seeks a continuance. Mr. Angilau is entitled to confront witnesses against him. Crawford v. Washington, 541 U.S. 36, 42 (2004). An effective confrontation requires a well-prepared and researched cross examination, because the reliability of a given witness may well be determinative of guilt or innocence. Giglio v. United States, 405 U.S. 150, 154 (1972), citing Napue v. Illinois, 360 U.S. 264, 269 (1959). While the defense understands that the materiality of the information and its prejudice is important to a Brady or Crawford review, in this case the defense has not had sufficient time to investigate. Brady v. Maryland, 373 U.S. 83, 87 (1963). Mr. Angilau s initial investigation into the cooperating witness reveals a strong potential for prejudice against Mr. Angilau. The cooperating witness has an extensive criminal history, a tenuous or third-party relationship to the defendant, a relationship with the Tongan Crip Gangs distinct from Mr. Angilau, and probable personal bias against Mr. Angilau. The District Court is granted broad discretion to impose discovery sanctions. United States v. Golyansky, 291 F.3d 1245, 1249 (10th Cir. 2002). Mr. Angilau asserts that there is a discovery violation. First the government did not abide by the Brady/Giglio 3

4 Case 2:08-cr TC-DBP Document 1590 Filed 04/11/14 Page 4 of 6 motion and order. Id. at Second, the Government has an obligation to disclose impeachment and exculpatory evidence to Mr. Angilau, whether specifically requested or not. United States v. Bagley, 473 U.S. 667, , 682 (1985). Third, the late disclosure affects Mr. Angilau s ability to properly prepare a defense and implicates his VI Amendment rights under the U.S. Constitution. Fourth, the Government has been conducting interviews with the cooperating witness since at least 4/22/13; while Mr. Angilau accepts that Brady technically implicates evidence withheld throughout the entire trial, he believes the Government cannot justify its delayed revelation. Golyansky, 291 F.3d at First, the late disclosure of the cooperating witness is unjustified in this instance. An unjustified late disclosure can result in witness exclusion; the District Court in Golyansky excluded a known witness whose mental health history was purposefully withheld until 19 days before trial. Id. at The Government, here, began working with the cooperating witness approximately one year ago, as evidenced by the recorded interviews provided to the defense, but only revealed the witness s identity 11 days before trial. Further, the Government provided the defense with six recorded interviews. Not only does the defense have to carefully review the evidence provided, but must begin investigating the cooperating witness, his association with TCG, his association with Mr. Angilau, his criminal history, his mental stability, his prison history, and his relationship to defense counsel s current clients in pending cases, all while preparing for trial. Second, the defense believes that Mr. Angilau is significantly prejudiced by the delay. As noted above there is enough evidence to suggest that the cooperating witness has a checkered criminal history, a third-party relationship to the defendant, potential

5 Case 2:08-cr TC-DBP Document 1590 Filed 04/11/14 Page 5 of 6 prosecutorial bias, potential social bias, significant criminal associations, and currently undetermined witness purpose. Mr. Angilau needs sufficient time to investigate and research the cooperating witness in order to properly cross examine him, which cannot occur in the one week leading up to trial. Mr. Angilau s VI Amendment right to confrontation is handicapped by the late disclosure of the cooperating witness. CONCLUSION Mr. Angilau respects the time that his case has been pending before the Court. Mr. Angilau s design is not to disrupt proceedings, but to properly defend himself against a potentially devastating witness with highly suspect integrity, credibility, and first-hand knowledge. Without investigative time Mr. Angilau will not be able to address the cooperating witness social bias and relevance to the elements of conspiracy. As a result, Mr. Angilau objects to the testimony of the cooperating witness. DATED this 11 th day of April, 2014 /s/ Michael J. Langford MICHAEL J. LANGFORD Attorney for Siale Angilau 5

6 Case 2:08-cr TC-DBP Document 1590 Filed 04/11/14 Page 6 of 6 CERTIFICATE OF SERVICE I hereby certify that I e-filed the foregoing on the 11 th day of April, 2014, through the CM/ECF filing system which sent notice to: William Kendall United States Attorney s Office 185 South State Street, Suite 400 Salt Lake City, UT Jayme Mackay.