Case 2:16-cr GMN-PAL Document 3031 Filed 12/19/17 Page 1 of 6

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1 Case :-cr-000-gmn-pal Document 0 Filed // Page of 0 RENE L. VALLADARES Federal Public Defender Nevada State Bar No. RYAN NORWOOD BRENDA WEKSLER Nevada State Bar No. E. Bonneville Avenue, Suite 0 Las Vegas, Nevada 0 (0) -/Phone (0) -/Fax Brenda_Weksler@fd.org Attorneys for Ryan W. Payne UNITED STATES DISTRICT COURT DISTRICT OF NEVADA UNITED STATES OF AMERICA, Plaintiff, v. RYAN W. PAYNE, Defendant. Case No. :-cr-0-gmn-pal MOTION TO STRIKE ECF 0 0 Certification: This Motion is timely filed. Defendant, Ryan W. Payne, through his counsel of record, Brenda Weksler and Ryan Norwood, s, files the following Motion to Strike the government s Motion in Limine based on the following points and authorities and all pleadings on file herein.

2 Case :-cr-000-gmn-pal Document 0 Filed // Page of DATED this th day of December, 0. RENE L. VALLADARES Federal Public Defender By: /s/ Brenda Weksler BRENDA WEKSLER By: /s/ Ryan Norwood RYAN NORWOOD 0 0

3 Case :-cr-000-gmn-pal Document 0 Filed // Page of 0 0 MEMORANDUM OF POINTS AND AUTHORITIES On December, 0, the Court allowed the government to file a sur-reply to discovery motions that were already fully briefed, ripe, and before the Court for decision, giving the government one last chance to address the issues by noting the government never took seriously the motions that were filed by the defense. Transcript December, 0, p.. The government asked for a week; the Court set the deadline for Thursday, December, 0. The Court allowed Payne to file a response. Pursuant to the Court s orders, the government filed its sur-reply on Thursday, and Payne filed his response the following Monday. No further pleadings were authorized. At about 0:00 p.m. on Monday, after Payne filed his response, the government filed another pleading. Although styled as a Motion in Limine seeking a pretrial ruling (ECF 0), the pleading is in fact a thinly veiled attempt to circumvent the Court s order and deadlines on the instant discovery matters. The pleading continues the main allegation the government raised in its sur-reply: that the defendants lack a cognizable defense. The publicly pleading cites and disputes points made in the sealed response Payne had just filed. See id. at. The Court has already given the government a full and fair opportunity to say its piece about the defenses Payne and the codefendants have raised. See ECF (Government s Motion in Limine to preclude defenses); ECF (government s reply to response to that motion, requested and allowed by the Court) ECF 000. The government s latest attempt to relitigate the matter in its recent motion simply repeats its mischaracterizations of Payne s defense. To the extent the motion offers anything that could be argued to be new in terms of legal argument or authority, it is fair to ask why such argument was not raised (at the latest) in the sur-reply the government filed five days ago, in which it sought to convince the Court that the defense lacked

4 Case :-cr-000-gmn-pal Document 0 Filed // Page of 0 cognizable defenses. If it had done so, of course, Payne could have readily responded to it in his responsive pleading. The instant motion in limine, in effect, is the government s misguided attempt to file a second sur-reply, to unilaterally extend the government s response deadline, to attempt to place new, irrelevant authority before the court without opposition from the defense, and to yet again futilely delay these proceedings. The Court should not allow this type of stalling or sandbagging. The government, in any event, should be estopped from claiming its conduct and the reasonableness of its actions is irrelevant. Trial began almost two months ago. Throughout its opening statements and first witnesses, the government has already attempted to persuade the jury that its agents acted reasonably during Operation Gold Butte, and that the defendants were solely at fault for the ensuing confrontations, ECF 0, pp. -. This is the theory the government has advanced from the beginning of its prosecution. Id., pp. -. The government cannot seek to change the rules or ask that the Court to prevent the defense from attacking the government s asserted theory in the middle of this trial. CONCLUSION For all these reasons, ECF 0 should be stricken entirely from the docket and not considered by this Court. 0 Even if the Court were to permit relitigation of the matter, a full response to this -page motion would require additional time, and could not be completed before Wednesday, December 0, 0, when the jury is schedule to return for trial. By putting this issue before the Court now, the government has conceded the need for further continuances in a trial that has already been continued three weeks. The government s conduct invites and requires a mistrial, along with other relief sought in Payne s pleadings including dismissal with prejudice, cf. ECF 0, pp. -. If nothing else, the Court should construe the government s request as a request for a mistrial. See ECF 0, pp. - (noting that the government has invited mistrial via its own conduct throughout the case).

5 Case :-cr-000-gmn-pal Document 0 Filed // Page of DATED this th day of December, 0. Respectfully submitted, RENE L. VALLADARES Federal Public Defender By: /s/ Brenda Weksler BRENDA WEKSLER By: /s/ Ryan Norwood RYAN NORWOOD 0 0

6 Case :-cr-000-gmn-pal Document 0 Filed // Page of CERTIFICATE OF ELECTRONIC SERVICE The undersigned hereby certifies that she is an employee of the Federal Public Defender for the District of Nevada and is a person of such age and discretion as to be competent to serve papers. That on December, 0, she served an electronic copy of the above and foregoing MOTION TO STRIKE ECF 0 via electronic service (ECF) to the persons named below: 0 STEVEN W. MYHRE Acting United States Attorney NADIA JANJUA AHMEN Assistant United States Attorney DAN SCHIESS Assistant United States Attorney 0 Las Vegas Blvd. South Suite 00 Las Vegas, NV 0 /s/ Lauren Conklin Employee of the Federal Public Defender 0