UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF WASHINGTON (HONORABLE LONNY R. SUKO)

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1 Peter S. Schweda Attorney for Defendant Steven Randock UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF WASHINGTON (HONORABLE LONNY R. SUKO UNITED STATES OF AMERICA, Plaintiff, NO. CR-0-0-LRS vs. DEFENDANTS REPLY TO DIXIE ELLEN RANDOCK, FOR STEVEN KARL RANDOCK, SR., OUTRAGEOUS GOVERNMENT HEIDI KAE LORHAN, and MISCONDUCT ROBERTA LYNN MARKISHTUM, Defendants. The Defendants provide this joint Reply. The Government agents served the search warrant on March, 0 at : p.m., when they knew the Defendants had closed their office and had left for the night. Instead of giving a copy of the search warrant and its return to the Defendants, DEFENDANTS REPLY TO - 1

2 the Agents gave it the next day to the building landlord, a person the Agents knew had no interest in the property seized. Moreover, to mislead the Defendants and owners of the property seized the Agents left a note explaining an angry tenant had taken the property to the County Landfill. Upon discovery of the missing property, the Defendants reported theft to the local police. The Defendants contacted their insurance carrier because they feared there might be identity theft of personal information including credit card numbers and the loss of important business records including tax records and bank statements. With the backdrop of this fake theft, engineered by government agents, the Government in its Reply states that when Detective Beck and Task Force Officer Tafoya went to conduct a fake theft investigation they were justified in order to investigate the possible commission of new crimes, i.e.-filing a false police report and insurance fraud. Gov. Response, Ct. Rec. 1 at Page, Line -. On May 1, 0, Officers Beck and Tafoya entered the Defendants office in Post Falls. Present were the Defendants Steve Randock, Dixie Randock and Roberta Markisthum while acting like they were there to investigate the theft. The officers conducted a search of the office and seized documents and objects. See Ct. Rec. - at -. During this encounter, Detective Tafoya conducted interrogations of the Defendants. There was a subsequent visit to the office with additional search and DEFENDANTS REPLY TO -

3 seizure of property on June, 0. Id., at. The officers acted as if they were conducting a theft investigation. Office Beck prepared a false police report, indicating a theft investigation was really taking place. Ct.Rec. - at -. In truth, they were there to investigate the Defendants on charges that are now before this Court. The Government thinks, Detectives Tafoya and Beck did not lie in order to gain access to places and things they would otherwise have no legal authority to reach. The Government did not stage a theft as the Defendants claim. Ct.Rec. 1 at Page, Lines -. ARGUMENT (1 THE GOVERNMENT AGENTS COMMITTED OUTRAGEOUS GOVERNMENT MISCONDUCT AND THE INDICTMENT SHOULD BE DISMISSED. The government, in its Response, attempts to distinguish the cases cited by the Defendants. First, the Government compares this case with the facts of United States v. Alverez-Tejeda, 1 F.d ( th Cir. 0, since [l]ike the agents in Alverez- Tejeda, the detectives treated the defendants as victims, rather than as criminal suspects. The defendants freedom was not restricted in any way. Ct.Rec. 1 at Page, Lines -. The Government misses the point. Our case has a very important difference. In Alverez-Tejeda, the agents had authority to seize the car and DEFENDANTS REPLY TO -

4 their lies did not expand their actual authority. The Court at explained, Nor was there anything unreasonable in the agents choice of guile to seize the car, rather than taking it outright, as they were entitled to do. While we don t generally second-guess the government s use of stealth to ferret out criminal activity, see Dalia, 1 U.S. at. S.Ct., we take a closer look when agents identify themselves as government officials but mislead suspects as to their purpose and authority. This is because people should be able to rely on [the] representations of government officials. United States v. Bosse, f.d 1, 1 ( th Cir. 0 (per curium (internal quotation marks omitted. If people can t trust the representations of government officials, the phrase I m from the government and I m here to help will become even more terrifying. This concern is at its zenith when government officials lie in order to gain access to places and things they would otherwise have no legal authority to reach. We think it clearly improper for a government agent to gain access to [property] which would otherwise be unavailable to him by invoking the private individual s trust in his government See id. (internal quotation marks omitted (emphasis added. This consideration is not implicated by the agents actions here because they already had the authority to seize the car and arrest Alverez-Tejeda; their lies didn t have the effect of expanding their ostensible authority beyond the scope of their actual authority. The only consequence of their deceit was to treat Alverez-Tejeda as a victim, rather than a criminal suspect-driving him to a hotel rather than immediately dragging him off to jail-and the only harm he suffered was being misled and subjected to the fright that comes from being the victim of a crime. Here, the offices did not already have authority to enter and search the premises and seize the items of property. The Government maintains that United States v. Stringer, 0 F.Supp.d DEFENDANTS REPLY TO -

5 (0 is inapposite. None of these facts and circumstances are present here. Ct.Rec. 1 at Page Line. But they really are here. Like Stringer, the Defendants here were subjected to a criminal investigation which was orchestrated by the Secret Service as a means of conceal[ing] the criminal investigation from [the] defendants. Id, at Page quoting Stringer at. Also, the Defendants received evasive and misleading information about the true investigation that was going on. Id., at. This is also similar to Stringer. The Government attempts to distinguish United States v. Bosse, F.d 1 ( th Cir. 0. Bosse is very similar: We have an unidentified federal agent accompanying a local officer to search the Defendants premises. Detective Tafoya did gain access to obtain information about the layout of the office to be used in a future search. Detective Tafoya noted two work stations with printers within the suite, one large format printer, several embossers, rubber signature stamps, foil seals and at least three file cabinets. Ct.Rec. - at. Moreover, the officers seized evidence including business forms and seals. Id., at -. Like Bosse [i]n these circumstances, [Tafoya s] silence amounted to a deliberate representation that his purpose was that announced by [Beck], and a deliberate misrepresentation of his true purposes. Gov. Response at, quoting Bosse, F.d 1 (the undersigned DEFENDANTS REPLY TO -

6 substituting names. Beck announced their purpose was to investigate the theft. Tafoya then lead the inquiry. Bosse is almost on all fours. Finally, the Government makes sweeping conclusory statements that subsequent search warrants were based on independent sources without identifying the independent sources. If the court decides suppression is the appropriate remedy, the extent and scope of any suppression order must be carefully crafted. It is only after the court rules that the parties can begin to consider what is entailed in the suppression. CONCLUSION The Court should dismiss the indictment for outrageous government misconduct. In the alternative, the Court should fashion an appropriate order suppressing evidence from the searches and seizures described above and any evidence that is derivative thereto. RESPECTFULLY SUBMITTED this th day of September, 0. WALDO, SCHWEDA, & MONTGOMERY, P.S. By: /s/ PETER S. SCHWEDA Peter S. Schweda, WSBA # Attorney for Defendant Steven Karl Randock, Sr. DEFENDANTS REPLY TO -

7 CERTIFICATE OF SERVICE I HEREBY CERTIFY that I electronically filed a true and correct copy of the foregoing DEFENDANTS REPLY BRIEF TO FOR OUTRAGEOUS GOVERNMENT MISCONDUCT by delivering same to each of the following attorneys of record, as follows: George JC Jacobs, IIIusa-wae-gjacobs@usdoj.gov By: /s/ PETER S. SCHWEDA Peter S. Schweda, WSBA # Attorney for Defendant Steven Karl Randock, Sr DEFENDANTS REPLY TO -