Durst case: Gov't/defense argue about calling fmr US Attorney

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA

NEW ORLEANS, LOUISIANA

THE UNITED STATES OF AMERICA VS. NO. 15-CR-91 ROBERT DURST

DURSTS RESPONSE TO THE GOVERNMENTS

MOTION FOR RECONSIDERATION (DOC. 75) OF COURTS ORDER DENYING GOVERNMENTS MOTION TO STRIKE EXPERT TESTIMONY NOTICE (DOC. 73)

TO THE HONORABLE HELEN G. BERRIGAN: Introduction.

The Defense gave notice of intent to call Don DeGabrielle as an expert witness in this

case on May 6, 2015.1 The Government filed its motion to strike Mr. DeGabrielles proposed

testimony on May 15, 2015.2 The Court denied the motion to strike on July 23, 2015.3 Later

that same day, the Government filed a motion to reconsider the Courts denial. 4 The

Governments motion to reconsider did not argue that the Courts reasoning was somehow

mistaken; the Government presented a new argument instead. The Governments new position is

that Mr. DeGabrielle has a conflict of interest that should preclude his testimony.5

1 Doc. 48. 2 Doc. 51. 3 Doc. 73. 4 Doc. 75. 5 The Government was aware of Mr. DeGabrielles alleged conflict well before filing its motion to strike. In fact, the newspaper articles attached to the Governments motion for reconsideration were provided to the Defense by the Government in discovery. In the civil context, motions for reconsideration cannot be used to raise arguments which could, and should, have been made before the judgment issued. Rosenweig v. Azurix Corp., 332 F.3d 854, 836 (5th Cir. 2003); see also, e.g., Lively v. Diamond OffShore Drilling, Inc., No. Civ. A. C3-1989, 2004 WL 2194408, at *1 (E.D. La. Sept. 24, 2004). There is no reason to treat the Governments motion to reconsider differently in this case. Because the Government could have raised Mr. DeGabrielles alleged conflict in its motion to strike, but chose not to do so, its motion for reconsideration based on that argument should be summarily denied.

Case 2:15-cr-00091-HGB-SS Document 81 Filed 08/03/15 Page 1 of 4

While the Defense disagrees with the Governments view that a conflict exists, the

Defense nevertheless attempted to remedy the Governments concerns by agreement. The

Defense offered to substitute Mr. DeGabrielle with Ronald Gene Woods, a former FBI agent and

former United States Attorney.6 The Government refused.

Background Regarding the Claimed Conflict.

Durst was acquitted of murder in Galveston, Texas on November 11, 2003. Unhappy

with this acquittal, the lead detective on the Galveston case, Galveston Police Detective Cody

Cazales, contacted multiple law enforcement agencies across the country in an effort to have

Durst charged with some other offense, any offense. Eventually, Durst was charged with two

weapons offenses in the Eastern District of Pennsylvania on October 4, 2004.7

During the same time period that Detective Cazales was soliciting assistance in other

jurisdictions, the Defense learned that Detective Cazales had approached the United States

Attorneys Office for Southern District of Texas encouraging the office to prosecute Durst for a

separate weapons offense. Mr. DeGuerin engaged in talks with AUSA Robert Stabe as a result.8

AUSA Stabe informed Mr. DeGuerin that his office rejected the prosecution that Detective

Cazales proposed. Mr. DeGabrielle was not the United States Attorney for the Southern District

of Texas at the time.

Mr. DeGabrielle was sworn in as United States Attorney in March 2006. On June 6,

2006, The Galveston Daily news published two articles that quoted Mr. DeGabrielles remarks

6 The Defense provided the Government Mr. Woods curriculum vitae on July 27, 2015. Along with providing Mr. Woods qualifications, the Defense proposed the following to AUSA Ranier: Agree that Mr. Woods is equally qualified to opine on federal law enforcement procedures relative to arrest, inventory and search without waving your objection to the propriety of the expert opinions. Mr. Woods qualifications are detailed in his curriculum vitae attached as Exhibit A. 7 Durst pled guilty to Possessing a Firearm While Under Indictment and Possessing a Firearm While a Fugitive on October 25, 2004, and he was sentenced to nine months incarceration on December 22, 2004. 8 AUSA Stabe was the Chief of the Gun Violence Division, responsible for prosecuting federal weapons offenses.


regarding Durst.9 Mr. DeGabrielle made it clear that, in 2004, a veteran prosecutor had declined

to file new weapons charges against Durst. To Mr. DeGabrielle, that was the end of the matter.

Conclusion.

AUSA Stabes decision not to prosecute Durst in the Southern District of Texas in 2004

does not somehow disqualify Mr. DeGabrielle, who became the United States Attorney in 2006,

from providing expert testimony in this case. Even so, Durst will replace Mr. DeGabrielle with

an equally qualified expert, Mr. Woods.

Durst respectfully requests this Courts permission to call Mr. Woods as an expert at the

suppression hearing on September 16, 2015, to testify regarding the same subject matters set out

in the Defenses prior notice for Mr. DeGabrielle. The Governments Motion to Reconsider

should be denied as moot.

Respectfully submitted,

Dick DeGuerin Admitted Pro Hac Vice DEGUERIN, DICKSON, HENNESSY & WARD 1018 Preston, 7th Floor Houston, Texas 77002 Telephone: (713) 223-5959 Facsimile: (713) 223-9231 [email protected]

/s/ William P. Gibbens William P. Gibbens, 27225 Ian Atkinson, 31605 SCHONEKAS, EVANS, McGOEY & McEACHIN, L.L.C. 909 Poydras Street, Suite 1600 New Orleans, Louisiana 70112 Facsimile: (504) 680-6051 [email protected] [email protected]

9 FBI agents found copies of these articles in Dursts hotel room when they searched it on March 14, 2015. As noted above, the articles, which bear Government bates numbers, were provided to the Defense in discovery.


Chip B. Lewis Admitted Pro Hac Vice LAW OFFICES OF CHIP B. LEWIS 1207 S. Shepherd Houston, Texas 77019 Telephone: (713) 523-7878 Facsimile: (713) 523-7887 [email protected]

David Z. Chesnoff Admitted Pro Hac Vice CHESNOFF & SCHONFELD 520 S. Fourth St. Las Vegas, NV 89101 Telephone: (702) 384-5563 Facsimile: (702) 598-1425 [email protected]

Attorneys for Robert Durst

CERTIFICATE OF SERVICE

I hereby certify that on August 3, 2015, I electronically filed the foregoing pleading with

the Clerk of Court by using the CM/ECF system which will send a notice of electronic filing to

all counsel of record.

/s/ William P. Gibbens WILLIAM P. GIBBENS


Case 2:15-cr-00091-HGB-SS Document 81-1 Filed 08/03/15 Page 1 of 3

Durst case: Gov't/defense argue about calling fmr US Attorney

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