BinionWrit

J. TONY SERRA (Calif. Bar No. 32639)
SHARI L. GREENBERGER
ANNA LING
506 Broadway
San Francisco, California 94133
Telephone: 415/986-5591

PATRICK WALSH (Nevada Bar No. 0448)
177 West Proctor Street
Carson City, Nevada 89703
Telephone: 775/883-3665

Attorneys for Plaintiff
RICHARD B. TABISH

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEVADA

RICHARD B. TABISH,

Plaintiff,

UNITED STATES DEPARTMENT OF JUSTICE; JOHN ASHCROFT, in his official capacity as Attorney General; FEDERAL BUREAU OF INVESTIGATION (“FBI”); ROBERT MUELLER, in his official capacity as Director of the FBI, and GERALD E. MCINTOSH , in his official capacity as an FBI Agent.

Defendants.

NO.

CIVIL ACTION

VERIFIED COMPLAINT FOR WRIT OF MANDAMUS AND AFFIRMATIVE INJUNCTION PURSUANT TO THE UNITED STATES CONSTITUTION, THE ALL WRITS ACT AND THE ADMINISTRATIVE PROCEDURES ACT FOR VIOLATION OF PLAINTIFF’S CONSTITUTIONAL RIGHTS TO COMPULSORY PROCESS AND DUE PROCESS OF LAW

PLAINTIFF HEREBY DEMANDS A JURY TRIAL ON ALL ISSUES PROPERLY TRIED TO A JURY

Plaintiff, RICHARD B. TABISH, complains as follows:
I. PARTIES
1. Plaintiff RICHARD B. TABISH is an individual over the age of eighteen years and a resident of Nevada. Plaintiff TABISH is currently incarcerated with the Nevada State Department of Corrections, serving 20 years to life for the first degree murder of Lonnie “Ted” Binion.
2. Defendant UNITED STATES DEPARTMENT OF JUSTICE is an agency of the United States government operating throughout the United States, including within the State of Nevada.
3. Defendant JOHN ASHCROFT is the United States Attorney General, the head of the DEPARTMENT OF JUSTICE, and is, at all times here relevant, acting in his official capacity.
4. Defendant FEDERAL BUREAU OF INVESTIGATION (“FBI”) is an agency of the United States government operating throughout the United States, including within the State of Nevada.
5. Defendant RICHARD MUELLER is the Director of the Federal Bureau of Investigation, and is, at all times here relevant, acting in his official capacity.
6. Defendant GERALD E. MCINTOSH is an agent with the Federal Bureau of Investigation, and is, at all times here relevant, acting in his official capacity.
II.

JURISDICTIONAL ALLEGATION: FEDERAL QUESTION JURISDICTION

7. Jurisdiction in this case is based on the existence of a Federal question. 28 U.S.C. § 1331. Plaintiff here brings suit that Defendants have and continue to violate his Constitutional rights. See Bivens v. Six Unknown Fed. Narcotics Agents (1971) 403 U.S. 388. Specifically, this action arises under the Sixth Amendment of the United States Constitution, which provides in pertinent part that “[i]n all criminal prosecutions, the accused shall enjoy the right[...] to have compulsory process for obtaining Witnesses in his favor.” see Washington v. Texas, 388 U.S. 14, 18 (1967); the Fifth and Fourteenth Amendments of the United States Constitution, which guarantees due process of law, see Id.; and the Eighth Amendment of the United States Constitution which prohibits cruel and unusual punishment, see Gardner v. Florida, 430 U.S. 349, 358 (1977); Estelle v. Smith, 451 U.S. 454, 468, fn. 11 (1981); Zant v. Stephens, 462 U.S. 862, 877 (1983). Plaintiff seeks equitable relief in the form of an affirmative injunction.
8. Plaintiff further seeks judicial review of final agency action which he asserts is arbitrary, capricious, an abuse of discretion, unlawful and in violation of his Constitutional rights, pursuant to the Administrative Procedures Act (“APA”), 5 U.S.C. §§ 702, 706(2)(A) and (B). Plaintiff seeks relief in the form of an affirmative injunction. 5 U.S.C. § 702.
9. Plaintiff also seeks relief in the form of a writ of mandamus compelling the named Federal officials to perform non-delegable duties owed to Plaintiff, pursuant to the Mandamus Act, 28 U.S.C. § 1361.
10. Venue is appropriate pursuant to 28 U.S.C. § 1391(e)(3), which provides in relevant part, “[a] civil action in which a defendant is an officer or employee of the United States or any agency thereof acting in his official capacity or under color of legal authority, or an agency of the United States, or the United States, may, except as otherwise provided by law, be brought in any judicial district in which [...] the plaintiff resides if no real property is involved in the action.”
III. ALLEGATIONS OF FACT
A. BACKGROUND FACTS
11. During the morning of September 17, 1998, Lonnie “Ted” Binion, a notorious crime figure and drug addict, died in his home in Las Vegas, Clark County, Nevada. The cause of death was initially classified as undetermined by the Clark County coroner. Months later, the Binion family retained the services of a private investigator, who was specifically hired to seek incriminating evidence against Tabish and Sandra Murphy. Said private investigator supplied the fruits of his investigation to the coroner, who then changed his original finding of an undetermined cause of death to homicide.
12. An Amended Information in State of Nevada v. Richard B. Tabish and Sandra Murphy (Clark County Case No. C161663) was filed on or about March 7, 2000, charging Richard B. Tabish with:
Count I: Conspiracy to Commit Murder and/or Robbery;

Count II: Conspiracy to Commit Extortion;

Count III:
Conspiracy to Commit Kidnaping;

Count IV: First Degree Kidnaping with Use of a Deadly Weapon;

Count V: Assault with a Deadly Weapon;

Count VI: Extortion with Use of a Deadly Weapon;

Count VII:
Murder with Use of a Deadly Weapon of Lonnie “Ted” Binion (Open);

Count VIII:
Robbery with Use of a Deadly Weapon;
Count IX: Conspiracy to Commit Burglary and/or Grand Larceny;

Count X: Burglary; and

Count XI: Grand Larceny.

B. INVOLVEMENT OF FEDERAL AGENCIES, OFFICIALS, AND AGENTS IN THE UNDERLYING CRIMINAL CASE

15. The United States Department of Justice and the Federal Bureau of Investigation and its agents have participated in the criminal investigation of the death of Lonnie “Ted” Binion, for which Plaintiff TABISH stands convicted, and/or are otherwise involved in the underlying criminal case, as explained below.
16. On December 13, 1999, a date prior to TABISH’s conviction in state court, FBI Agent Gerald E. McIntosh prepared a federal affidavit in support of the use of wiretaps and submitted it to and was subsequently approved by United States District Court Johnnie Rawlinson. This McIntosh affidavit became known to the public on October 23, 2001, when attorneys for Robert Marshall, alleged to be one of the targets for wiretaps, filed a motion seeking to bar the government from using the affidavit or fruits of the wiretap as evidence against Marshall, who was one of the defendants in the subsequent criminal prosecution due to the wiretap. See, United States v. Robert Marshall, et al., United States District Court Case No. CR-S-01-130-LDG-LRL. Marshall was charged in a federal drug case that evolved from a racketeering investigation. One of the key objectives of the wire intercept was to gain knowledge of the members of the criminal enterprise and their associates’ roles in the death of Ted Binion. It was determined that Ted Binion and his brother Jack Binion, and others were believed to be members of the criminal enterprise investigated by the FBI.
17. Specifically, McIntosh’s Affidavit explains that the death of Ted Binion was orchestrated and perpetrated by individuals other than defendants known to Confidential Informants #3 and #4, referenced by Agent McIntosh’s affidavit for wiretap intercept. Additionally, Confidential Informant #3 indicated that Jack Binion may have had a role in planning the death of his brother, Ted Binion. Such information could ultimately exonerate TABISH.
18. McIntosh’s affidavit further describes a criminal enterprise whose members have associated together for more than 30 years and members of said organization included Ted Binion and his brother Jack Binion. As a part of this criminal enterprise, it is alleged that Jack Binion assisted in financing Caribbean Stud Casino in Aruba, which allegedly laundered money on the organization’s behalf. On September 2, 1998 (15 days before Ted Binion’s death), Mikohn Gaming, Inc., purchased the rights to Caribbean Stud for approximately $37 million. On September 17, 1998, the day Ted Binion died, he was to have received a $10 million dollar check for his share of the sale of Caribbean Stud Casino.
19. McIntosh’s affidavit also sets forth that the FBI were aware that Confidential Informants #3 and #4 were specifically identified as having information regarding other individuals (not Richard Tabish) who were present at the homicide of Ted Binion, and his alleged reception of the above mentioned $10 million check on September 17, 1998, the same date as his death. Confidential Informant #4 also relayed information learned that a pillow may have been used to suffocate Ted Binion during his death, a fact learned by Confidential Informant #4 prior to the testimony of an expert coroner and prior to any public release of information that the cause of death was asphyxiation rather than a drug overdose.
20. Defendant DEPARTMENT OF JUSTICE (hereinafter “DOJ”) is involved in the investigation of Lonnie “Ted” Binion’s death, for which Plaintiff TABISH stands convicted through the actions of its division, Defendant FBI.
C. PLAINTIFF TABISH’S EFFORTS TO OBTAIN THROUGH DISCOVERY AND STATE COURT SUBPOENA INFORMATION NECESSARY TO HIS DEFENSE WHICH IS WITHIN THE SOLE POSSESSION OF THE FEDERAL BUREAU OF INVESTIGATION.

21. As a result of the foregoing affidavit, Defendants DOJ, FBI, and FBI Agent McIntosh all have in their possession substantial information and documentation which is necessary to establish the innocence of Plaintiff Tabish and defend himself in his underlying criminal action, including, but not limited to the following: (1) reports, information, documents, and tape recordings pertaining directly to the investigation of this case which may reflect on the thoroughness and quality of the investigation and/or may lead to exculpatory evidence; (2) information and documents pertaining to decedent which may lead to exculpatory evidence; (3) reports, information, documentation and tape recordings regarding other potential suspects and/or witnesses, including named individuals and unknown individuals who are associated with the criminal enterprise identified in McIntosh’s affidavit; and (4) information which may reflect on the credibility of witnesses and/or lead to exculpatory information.
22. Plaintiff has attempted to obtain all of the information and materials in the possession of the DOJ, FBI, and FBI Agent Gerald McIntosh which is necessary and relevant to his case but has been unable to do so due to the refusal of the federal agencies to provide the necessary information, as explained below.
1. STATE COURT DISCOVERY PROCESS
23. Plaintiff requested the above information from the District Attorney of Clark County through informal discovery requests, filed on or about January 24, 2000. See Declaration of Counsel Serra, Exhibit A (Defendants’ Motion to Disclose Evidence Regarding Other Possible Suspects and Defendants’ Motion for Discovery).
24. On March 11, 2002, Plaintiff Tabish sent a formal discovery request to the FBI and affiant of the wiretap application, FBI Agent Gerald E. McIntosh, under the provisions enumerated in 28 C.F.R. section 16.22. See Declaration of Counsel Serra, Exhibits B and C (Affidavit of FBI Agent McIntosh for wiretap intercept submitted and approved by U.S. District Court Judge Johnnie B. Rawlinson on December 13, 1999, and correspondence to FBI and FBI Agent McIntosh dated March 11, 2002, respectively).
25. On April 3, 2002, the U.S. Department of Justice, through Assistant United States Attorney, Carlos A. Gonzalez, responded on behalf of the FBI field office in Las Vegas, and refused to disclose any information from the FBI investigative files on the grounds that “any disclosure on this ongoing investigation would interfere with enforcement proceedings.” See Declaration of Counsel Serra, Exhibit D (Correspondence to Serra from FBI dated April 3, 2002).
26. Thereafter, a subpoena duces tecum demand was served on Agent McIntosh and the federal government involving the motive and death of Ted Binion, including but not limited to:
a. All FBI 302 forms referencing this homicide;

b. All correspondence between the federal government, including but not limited to Special Agent McIntosh, and the Las Vegas Metropolitan Police Department;

c. All correspondence between the federal government, including but not limited to Special Agent McIntosh, and the Las Vegas Metropolitan Police Department;

d. All correspondence between the federal government, including Agent McIntosh, and the Las Vegas District Attorney’s Office;

e. All information provided to the Las Vegas District Attorney’s Office by any agent of the federal government or any federal prosecutor regarding the federal investigation into the nature of Ted Binion’s death;

f. All interoffice correspondence generated by the federal government involving the Ted Binion case;

g. All wiretap applications and/or information involving Ted Binion and his homicide or where the motive to murder and death of Ted Binion is references;

h. All taped conversations referencing the same;

i. All interviews with identified and unidentified informants, including but not limited to CI#3 and CI#4 referenced in the affidavit of Special Agent McIntosh;

j. All wiretap information involving the motive to murder Ted Binion and his homicide; all telephone calls, debriefings of the informants, and all telephonic surveillance, including the Jones’ residence wherein the death of Ted Binion is discussed;

k. All notes, reports, internal memos, audio/video tapes, or any other tapes that relate to the circumstances surrounding this investigation;

l. All notes and reports regarding questioning of witnesses or suspects in this homicide; and

m. Any other logs or memorabilia relating to infor-mation within your agency's possession regarding the motive to murder, and the homicide of Ted Binion.

See Declaration of Counsel Serra, Exhibit E (Subpoena Duces Tecum directed to FBI Agent Gerald McIntosh).

27. On April 19, 2002, Plaintiff Tabish filed a motion to compel discovery requested by subpoena duces tecum in the District Court of Nevada. See Declaration of Counsel Serra, Exhibit F (Motion to Compel Discovery Requested by Subpoena Duces Tecum).
28. On April 24, 2002, the District Attorney of Clark County, through Chief Deputy District Attorney David J.J. Roger, filed a Motion to Strike Defendant’s Motion to Compel Discovery Requested by Subpoena Duces Tecum. See Declaration of Counsel Serra, Exhibit G (Motion to Strike Defendant’s Motion to Compel Discovery Requested by Subpoena Duces Tecum).
29. On May 10, 2002, a hearing was conducted before Judge Bonaventure in Clark County District Court, at which time the Judge formally stayed issuing a decision until a remittitur was issued by the Nevada Supreme Court on Plaintiff Tabish’s appeal, which is currently pending before the Nevada Supreme Court.
30. On June 27, 2002, oral argument was heard before the Nevada Supreme Court on the appeal of Rick Tabish and Sandy Murphy. At the time of the filing of this complaint, no decision has rendered in the criminal appeal, nor a Certificate of Judgment remitted.
VERIFICATION

I, Richard B. Tabish, hereby certify under penalty of perjury pursuant to 28 U.S.C. section 1746 that all of the foregoing allegations of facts are true and correct to the best of my knowledge and belief. Executed this ___ day of July, 2001, at High Desert Prison, Indian Springs, Nevada.

________________________________
RICHARD B. TABISH

J. TONY SERRA (Calif. Bar No. 32639)
SHARI L. GREENBERGER
ANNA LING
506 Broadway
San Francisco, California 94133
Telephone: 415/986-5591

PATRICK WALSH (Nevada Bar No. 0448)
177 West Proctor Street
Carson City, Nevada 89703
Telephone: 775/883-3665

Attorneys for Plaintiff
RICHARD B. TABISH

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEVADA

RICHARD B. TABISH,

Plaintiff,

Defendants.

NO.

CIVIL ACTION

DECLARATION OF COUNSEL
J. TONY SERRA IN SUPPORT
OF COMPLAINT

I, J. TONY SERRA, declare as follows:
1. I am an attorney in good standing in the State of California and have been admitted to practice before this Court.
2. I represent plaintiff Tabish in the underlying criminal case in which he is currently incarcerated and serving 20 years to life for the first degree murder of Ted Binion. As such, I have personal knowledge of the following facts and could testify regarding these facts if called to do so.
3. Attached as Exhibit A is a true and correct copy of the relevant informal discovery requests, i.e. Defendants’ Motion to Disclose Evidence Regarding Other Possible Suspects and Defendants Motion for Discovery, filed on or about January 24, 2000 in Clark County District Court, Nevada.
4. Attached as Exhibits B and C are true and correct copies of the Affidavit of FBI Agent McIntosh for wiretap intercept submitted and approved by U.S. District Court Judge Johnnie B. Rawlinson on December 13, 1999, and the formal discovery request to the FBI and affiant of the wiretap application, FBI Agent Gerald E. McIntosh, under the provi-sions enumerated in 28 C.F.R. section 16.22 dated March 11, 2002, respectively.
5. Attached as Exhibit D is a true and correct copy of the Correspondence to Serra from Assistant U.S. Attorney Carlos A. Gonzalez on the behalf of the FBI dated April 3, 2002.
6. Attached as Exhibit E is a true and correct copy of the State court subpoena duces tecum directed to FBI Agent McIntosh seeking certain documents and information relating to this case.
7. Attached as Exhibit F is a true and correct copy of the Motion to Compel Discovery Requested by Subpoena Duces Tecum filed with Clark County District Court, Nevada on April 19, 2002.
8. Attached as Exhibit G is a true and correct copy of the State of Nevada’s Motion to Strike Defendant’s Motion to Compel Discovery Requested by Subpoena Duces Tecum filed with Clark Court District Court, Nevada on April 24, 2002.
I hereby declare, under penalty of perjury, that the foregoing is true and correct.
Executed this 26th day of July, 2002, in San Francisco, California.

J. TONY SERRA

IV.

CAUSES OF ACTION

FIRST CAUSE OF ACTION

UNITED STATES CONSTITUTION, AMEND. V, VI, VIII and XIV
VIOLATION OF PLAINTIFF’S CONSTITUTIONAL RIGHTS TO COMPULSORY PROCESS AND DUE PROCESS-FAILURE TO PRODUCE NECESSARY INFORMATION AND DOCUMENTATION WITHIN SOLE POSSESSION OF FEDERAL AGENCIES

31. Plaintiff refers to the allegations of Paragraphs 1 through 31 and incorporates said allegations herein by way of this reference.
32. Defendants DOJ, FBI and FBI Agent McIntosh have within their possession documents and information which are relevant and necessary to Plaintiff’s defense in the underlying State criminal case, including but not limited to the following: (1) reports, information, documents, and tape recordings pertaining directly to the investigation of this case which may reflect on the thoroughness and quality of the investigation and/or may lead to exculpatory evidence; (2) reports, information and documents pertaining to decedent which may lead to exculpatory evidence; (3) reports, information, documentation and tape recordings regarding other potential suspects and/or witnesses, including named individuals and unknown individuals who are associated with the criminal enterprise identified in McIntosh’s affidavit; and (4) information which may reflect on the credibility of witnesses and/or lead to exculpatory information.
33. Pursuant to the United States Constitution, Amendments V, VIII and XIV, Plaintiff has a Constitutional right to due process which encompasses the right to all information and documentation in the possession of Defendants DOJ, FBI and FBI Agent McIntosh which might reasonably lead to exculpatory evidence, reflects on the quality and thoroughness of the investigation of the underlying criminal case, and reflects in the credibility and reliability of witnesses for the prosecution.
34. Pursuant to United States Constitution, Amendment VI, Plaintiff has a Constitutional right to compulsory process, which encompasses the right to subpoena documents and witnesses necessary to his defense.
35. Plaintiff has attempted to obtain the information necessary for his defense through discovery requests to the District Attorney of Clark County, discovery requests to the FBI pursuant to 28 C.F.R. § 16.22 and Touhy v. Ragen, 340 U.S. 462 (1951), and through State court issued subpoenas directed to Defendants FBI and FBI Agent McIntosh.
36. Defendants and the named individuals who direct and administer these agencies have refused to provide the necessary information, both by refusing to cooperate and by refusing to authorize release of the requested information and documentation, in whole or in part, in response to the State court subpoenas.
37. By refusing to provide Plaintiff information and documentation within the sole possession of their agencies which is necessary to Plaintiff’s defense, Defendants have and continue to violate Plaintiff’s Constitutional rights, as guaranteed by the United States Constitution, Amendments V, VI, VIII and XIV.
38. The actions of Defendants have harmed and continue to harm Plaintiff by hindering his preparation of a defense and seeking of exonerating information and thereby suffering continued incarceration.
39. If the actions of Defendants are permitted to continue, Plaintiff will be irreparably harmed by being incarcerated without all of the necessary information and documentation to which he is entitled under the United States Constitution.
SECOND CAUSE OF ACTION

5 U.S.C. § 706(2)(A) and (B)
UNLAWFUL AGENCY ACTION

40. Plaintiff refers to the allegations of Paragraphs 1 through 40 and incorporates said allegations herein by way of this reference.
41. Defendants have in their possession information and documentation which is necessary to establish Plaintiff’s innocence and defense in the underlying criminal case and which he is entitled to pursuant to the United States Constitution.
42. Plaintiff has attempted to obtain said information and documentation from Defendants through requests for discovery and through State court subpoenas issued to Defendants FBI and FBI Agent McIntosh.
43. Defendant agencies and the named individual Defendants who direct and administer these agencies have refused to provide the necessary information by refusing to cooperate and by refusing to authorize release of the requested reports, information and documentation, in whole or in part, in response to State court subpoenas.
44. The actions of Defendants have harmed and continue to harm Plaintiff by hindering his preparation of a defense, specifically, in preparing a motion for new trial and a writ of habeas corpus, and the seeking of exonerating information, thereby having him suffer continued incarceration.
45. If the actions of Defendants and the named individual Defendants are permitted to continue, Plaintiff will be irreparably harmed by being incarcerated without all of the necessary information and documentation to which he is entitled under the United States Constitution.
46. The actions of Defendant agencies are final.
47. The actions of Defendant agencies and the named individual Defendants who direct and administer these agencies are arbitrary, capricious, an abuse of discretion, unlawful and in contravention of Plaintiff’s Constitutional rights to due process and compulsory process as guaranteed by the United States Constitution Amendments V, VI, VIII and XIV.

THIRD CAUSE OF ACTION

28 U.S.C. § 1361
WRIT OF MANDAMUS

48. Plaintiff refers to the allegations of Paragraphs 1 through 48 and incorporates said allegations herein by way of this reference.
49. Defendant agencies DOJ and FBI have in their sole possession reports, information, and documentation which are necessary to Plaintiff’s innocence and defense, through a motion for new trial and writ of habeas corpus, in the underlying criminal case and which he is entitled to pursuant to the United States Constitution.
50. Plaintiff has attempted to obtain said reports, information and documentation from Defendants through requests for discovery and through State court subpoenas issued to Defendants FBI and FBI Agent McIntosh.
51. Defendant agencies and the named individual Defendants who direct and administer these agencies have refused to provide the necessary information by refusing to cooperate and by refusing to authorize release of the requested information and documentation, in whole or in part, in response to State court subpoenas.
52. Pursuant to the United States Constitution, the named individual Defendants owe Plaintiff a non-delegable duty to produce documentation and information within the sole possession of their agencies which is necessary to his innocence and defense to his underlying criminal case and to which he is entitled under the United States Constitution.
53. The actions of Defendants have harmed and continue to harm Plaintiff by hindering his preparation of a new trial motion and writ of habeas corpus, and seeking of exonerating information in his defense, thereby causing him to suffer continued incarceration.
54. If the actions of the named individual Defendants are permitted to continue, Plaintiff will be irreparably harmed by being incarcerated without all of the necessary information and documentation to which he is entitled under the United States Constitution.
V. RELIEF REQUESTED
WHEREFORE, plaintiff prays for relief as follows:
1. For an affirmative injunction and/or writ of mandamus ordering Defendants to produce to Plaintiff within ten calendar days all information and documentation relevant and necessary to his defense in the State criminal case, as required by the United States Constitution, and necessary to his motion for new trial and writ of habeas corpus in the State criminal case, as required by the United States Constitution, including but not limited to the following: (1) reports, information, documents, and tape recordings pertaining directly to the investigation of this case which may reflect on the thoroughness and quality of the investigation and/or may lead to exculpatory evidence; (2) reports, information, and documents pertaining to decedent which may lead to exculpatory evidence; (3) reports, information, documentation, and tape recordings regarding other potential suspects and/or witnesses, including named individuals and unknown individuals who are associated with the criminal enterprise identified in McIntosh’s affidavit; and (4) information which may reflect on the credibility of witnesses and/or lead to exculpatory information.
2. In the alternative, for an affirmative injunction and/or writ of mandamus requiring Defendants to produce the requested and necessary information to the Court within ten calendar days in order for the Court to conduct an in camera review and provide to Plaintiff all information and documentation as required by the United States Constitution.
3. For a protective order pertaining to the use and dissemination of the requested information and materials which permits Plaintiff, his counsel and his investigators to use the information and materials as necessary in the presentation and preparation of his motion for new trial and writ of habeas corpus but protects reasonable concerns for safety, privacy and/or national security, as deemed just and proper by the Court.
4. Attorneys’ fees and costs
5. For such other and further relief as the Court deems just and proper.
Plaintiff hereby demands jury trial on all issues properly tried before a jury.
Dated: July 26, 2002

J. TONY SERRA
SHARI L. GREENBERGER
ANNA LING
PATRICK WALSH
Attorneys for Plaintiff
RICHARD B. TABISH

_________________________
J. TONY SERRA

PATRICK WALSH
J. TONY SERRA (Calif. Bar No. 32639)
SHARI L. GREENBERGER
ANNA LING
506 Broadway
San Francisco, California 94133
Telephone: 415/986-5591

PATRICK WALSH (Nevada Bar No. 0448)
177 West Proctor Street
Carson City, Nevada 89703
Telephone: 775/883-3665

Attorneys for Plaintiff
RICHARD B. TABISH

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEVADA

RICHARD B. TABISH,

Plaintiff,

Defendants.
/

NO.

CIVIL ACTION

EXHIBITS IN SUPPORT OF
PLAINTIFF’S MOTION FOR AFFIRMATIVE INJUNCTION AND/OR WRIT OF MANDAMUS

INDEX OF EXHIBITS

A DEFENDANT’S MOTION TO DISCLOSE EVIDENCE REGARDING OTHER POSSIBLE SUSPECTS

B AFFIDAVIT OF FBI AGENT MCINTOSH FOR WIRETAP INTERCEPT APPROVED BY U.S. DISTRICT COURT JUDGE JOHNNIE B. RAWLINSON ON DECEMBER 13, 1999

C DISCOVERY REQUEST LETTER, MARCH 11, 2002

D LETTER FROM ASSISTANT UNITED STATES ATTORNEY CARLOS A. GONZALEZ, APRIL 3, 2002

E STATE COURT SUBPOENA DUCES TECUM DIRECTED TO FBI AGENT MCINTOSH, ISSUED APRIL 15, 2002

F NOTICE OF MOTION AND MOTION TO COMPEL DISCOVERY REQUESTED BY SUBPOENA DUCES TECUM, FILED APRIL 19, 2002, WITH ACCOMPANYING EXHIBITS

G NOTICE OF MOTION AND MOTION TO STRIKE DEFENDANT’S MOTION TO COMPEL DISCOVERY REQUESTED BY SUBPOENA DUCES TECUM AND ORDER SHORTENING TIME, FILED APRIL 24, 2002

J. TONY SERRA (Calif. Bar No. 32639)
SHARI L. GREENBERGER
ANNA LING
506 Broadway
San Francisco, California 94133
Telephone: 415/986-5591

PATRICK WALSH (Nevada Bar No. 0448)
177 West Proctor Street
Carson City, Nevada 89703
Telephone: 775/883-3665

Attorneys for Plaintiff
RICHARD B. TABISH

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEVADA

RICHARD B. TABISH,

Plaintiff,

Defendants.

NO.

CIVIL ACTION

NOTICE OF MOTION AND MOTION FOR AFFIRMATIVE INJUNCTION AND/OR WRIT OF MANDAMUS

Date:
Time:
Dept:

TO THE CLERK OF THE ABOVE-ENTITLED COURT AND TO THE UNITED STATES ATTORNEY FOR THE DISTRICT OF NEVADA-:

Plaintiff RICHARD B. TABISH, by and through counsel, hereby gives notice and moves, pursuant to Federal Rule of Civil Procedure 65, for an affirmative injunction and/or writ of mandamus directing defendant agencies and the named individual defendants to produce all information and documentation necessary to plaintiff’s defense, specifically to support his motion for new trial and writ of habeas corpus in the underlying criminal case, and to which he is entitled under the United States Constitution, as prayed for in plaintiff’s Complaint. This motion will be heard at a date and time to be set by the court.
In support of this motion, Plaintiff states:
1. Plaintiff is incarcerated with the Nevada Department of Corrections and serving a sentence of 20-years-to-life. In light of the newly-discovered evidence in regard to the McIntosh Affidavit as detailed in plaintiff’s Complaint, his current incarceration strains due process.
2. Plaintiff has been, and continues to be, irreparably harmed by his incarceration without being furnished all of the reports, information and documentation necessary to establish his innocence and defense and to which he is entitled under the United States Constitution. Such a result would violate plaintiff’s right to due process and to compulsory process, as guaranteed by the United States Constitution, Amendments V, VI, VIII and XIV.
3. Issuance of an injunction and/or writ of mandamus requiring disclosure of the requested information will not harm defendants, as plaintiff requests that the Court fashion a protective order as necessary to protect the legitimate concerns for privacy, safety and/or national security that defendants may assert.
4. The public interest in providing potentially exculpatory evidence to those charged and or convicted of criminal offenses dictates strongly in favor of granting the affirmative injunction and/or writ or mandamus.
In support of his motion, plaintiff incorporates by reference the allegations of his Complaint, the facts set forth in the attorney declaration and the exhibits attached thereto, and the accompanying memorandum of points of authorities.
WHEREFORE, plaintiff requests the following:
1. An affirmative injunction and/or writ of mandamus ordering defendants to produce to plaintiff, within ten calendar days, all information and documentation as required by the United States Constitution, including but not limited to the following: (1) reports, information, documents, and tape recordings pertaining directly to the investigation of this case which may reflect on the thoroughness and quality of the investigation and/or may lead to exculpatory evidence; (2) reports, information and documents pertaining to decedent which may lead to exculpatory evidence; (3) reports, information, documentation and tapes regarding other potential suspects and/or witnesses, including named individuals and unknown individuals who are associated with the criminal enterprise identified in McIntosh’s affidavit; and (4) information which may reflect on the credibility of witnesses and/or lead to exculpatory information.
2. In the alternative, an affirmative injunction and/or writ of mandamus requiring defendants to produce the requested and necessary information to the Court within ten calendar days in order for the Court to conduct an in camera review and provide to plaintiff all information and documentation as required by the United States Constitution.
3. A protective order pertaining to the use and dissemination of the requested information and materials which permits plaintiff, his counsel, and his investigators to use the information and materials as necessary in the presentation and preparation of his motion for new trial, writ of habeas corpus, and ultimate defense, but protects reasonable concerns for safety, privacy and/or national security, as deemed just and proper by the Court.
4. Such other and further relief as the Court deems just and proper.
Dated: July 26, 2002
J. TONY SERRA
SHARI L. GREENBERGER
ANNA LING
PATRICK WALSH
Attorneys for Plaintiff
RICHARD B. TABISH

_________________________
J. TONY SERRA

PATRICK WALSH

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEVADA

RICHARD B. TABISH,

Plaintiff,

Defendants.

NO.

CIVIL ACTION

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION
FOR INJUNCTION AND/OR WRIT OF MANDAMUS

J. TONY SERRA (Calif. Bar No. 32639)
SHARI L. GREENBERGER
ANNA LING
506 Broadway
San Francisco, California 94133
Telephone: 415/986-5591

PATRICK WALSH (Nevada Bar No. 0448)
177 West Proctor Street
Carson City, Nevada 89703
Telephone: 775/883-3665

Attorneys for Plaintiff
RICHARD B. TABISH
TABLE OF CONTENTS

Page

Table of Authorities ii

ISSUE TO BE DECIDED 1

STATEMENT OF FACTS 1

A. Background Facts 1

B. Involvement of Federal Agencies 5

C. Plaintiff Tabish’s Efforts to Obtain Informationfrom Federal Agencies 7

ARGUMENT 9

THIS COURT SHOULD ISSUE AN ORDER REQUIRING DEFENDANTS TO PRODUCE ALL INFORMATION, DOCUMENTATION AND MATERIALS IN THEIR SOLE POSSESSION NECESSARY TO PLAINTIFF’S MOTION FOR NEW TRIAL AND WRIT OF HABEAS CORPUS IN STATE COURT 9

A. Jurisdiction of the Court and Standard of Review. 10

B. The Compulsory Process and Due Process Clauses Require Defendants to Produce All Information Relevant to Plaintiff’s Defense in the State Court Case. 11

CONCLUSION 19
TABLE OF AUTHORITIES

Page

Cases Cited

United States v. Agurs, 427 U.S. 97 (1976) 14, 17, 18

Appeal of Sun Pipe Line Co., 831 F.2d 22 (1st Cir. 1987) 10

Bell v. Hood, 327 U.S. 678 (1946) 10

Bivens v. Six Unknown Fed. Narcotics Agents 403 U.S. 388 (1971) 10

Brady v. Maryland, 373 U.S. 83 (1963) 14, 17-19

Caldwell v. Mississippi, 472 U.S. 320 (1985) 13

Davis Enterprises v. U.S. EPA,
877 F.2d 1181 (3rd Cir. 1989) 10

Elko County v. Siminoe, 109 F.3d 554 (9th Cir. 1997) 10

Estelle v. Smith, 451 U.S. 454 (1981) 13

Gardner v. Florida, 430 U.S. 349 (1977) 13

Giglio v. United States, 405 U.S. 150 (1972) 18

In re Boeh, 25 F.3d 761 (9th Cir. 1994) 10, 11

Johnson v. Mississippi, 486 U.S. 578 (1988) 13

Kyles v. Whitley, 514 U.S. 419 (1995) 18

Pennsylvania v. Ritchie, 480 U.S. 39 (1987) 11, 13-16, 18

United States v. Bagley, 473 U.S. 667 (1985) 18

United States v. Bryan, 339 U.S. 323 (1950) 16

United States v. Burr, 25 F.Cas. 30 (No. 14, 692d) (CC Va. 1807) 11

United States v. Nixon, 418 U.S. 683 (1974) 12, 13, 15, 16, 18

United States v. Salemme, et al., 91 F.Supp.2d 141 (1999) 17

Washington v. Texas, 388 U.S. 14 (1967) 11, 12

Zant v. Stephens, 462 U.S. 862 (1983) 13

Codes and Statutes

Administrative Procedures Act 5 U.S.C. §§ 702, 706(2)(A) and (B) 10

Mandamus Act, 28 U.S.C. § 136111

ISSUE TO BE DECIDED

Should this Court issue an affirmative injunction and/or writ of mandamus compelling defendants DOJ, FBI and FBI Agent Gerald McIntosh to produce certain information and documentation in their sole possession which is necessary to plaintiff’s defense, specifically in the preparation of a motion for a new trial and writ of habeas corpus in his underlying criminal case in state court?
STATEMENT OF FACTS
A. Background Facts
An Amended Information in State of Nevada v. Richard B. Tabish and Sandra Murphy (Clark County Case No. C161663) was filed on or about March 7, 2000, charging Richard B. Tabish with:
Count I: Conspiracy to Commit Murder and/or Robbery;
Count II: Conspiracy to Commit Extortion;
Count III: Conspiracy to Commit Kidnaping;
Count IV: First Degree Kidnaping with Use of a Deadly weapon;
Count V: Assault with a Deadly Weapon;
Count VI: Extortion with Use of a Deadly Weapon;
Count VII: Murder with Use of a Deadly Weapon of Lonnie “Ted” Binion (Open);
Count VIII: Robbery with Use of a Deadly Weapon;
Count IX: Conspiracy to Commit Burglary and/or Grand Larceny;
Count X: Burglary; and
Count XI: Grand Larceny.

Co-defendant Sandra Murphy was also charged in said Amended Information with Counts I, VII, VIII, IX, X, and XI.
Tabish and Murphy were tried before Clark County District Court Judge Joseph Bonaventure and a jury. The 30-day jury trial ended with the jury’s verdict on May 19, 2000. Both were found guilty of conspiracy to commit murder and/or burglary (Count I); murder in the first degree (but not with a deadly weapon) (Count VII); robbery (Count VIII); conspiracy to commit burglary and/or grand larceny (Count IX). Tabish was also convicted on the remaining counts as they applied to him.
The prosecution’s case against Tabish was purely a circumstantial one. In May of 1998, Lonnie “Ted” Binion, after a lengthy battle with the Nevada Gaming Control Board regarding his illegal drug use and his association with organized crime figure “Fat” Herbie Blitzstein, lost his gaming license. Binion was forced to sell his interest in the Binion Horseshoe Hotel & Casino, of which he was part owner with other family members, and forced to move his personal belongings out of the Horseshoe.
In the months that followed the loss of his license, Binion began to seriously abuse heroin and other substances. On September 16, 1998, the day prior to Binion’s death, Binion told his neighbor, Dr. Enrique Lacayo, that he was trying to kick his heroin habit and needed a prescription for Xanax. Dr. Lacayo supplied Binion, whom he knew to be a drug addict, with a prescription for a three month supply of Xanax, despite the danger associated with the mixture of heroin and Xanax. Later on that same day, Binion’s long-time drug dealer, Peter Sheridan, sold Binion twelve balloons of tar heroin, three times more heroin than Mr. Binion normally purchased. No testimony nor evidence suggested that anyone other than Binion was involved in procuring the heroin and/or Xanax. Witnesses testified during the trial that Binion alone took affirmative actions and substantial steps in acquiring the heroin and Xanax.
Binion was found deceased in his home on September 17, 1998, and his death was classified as undetermined by the coroner. Months later, the Binion family retained the services of a private investigator, Tom Dillard, who was hired to speci-fically find incriminating evidence against Tabish and co-defendant Murphy. Dillard subsequently supplied the fruits of his investigation to the coroner, and as a result, the coroner’s original finding of an undetermined cause of death was changed to homicide.
The testimony presented by the prosecution regarding the cause of death was conflicting. Dr. Larry Simms unequivocally testified that, to a reasonable degree of medical certainty, Binion died because of the drugs in his body. Alternatively, Dr. Michael Baden, another witness for the prosecution, rejected Simm’s opinion and asserted that Binion died of asphyxia by suffocation. During trial, Tabish’s attorneys argued that Binion merely died of an accidental or intentional drug overdose.
Binion’s time of death was calculated by the prosecution’s witnesses as 8:00 a.m. to 10:00 a.m., according to Dr. Simms, and as 8:30 a.m. to 12:30 p.m., according to Dr. Baden. However, Mr. Tabish was at All Star Concrete in North Las Vegas the entire morning of September 17, 1998, the day Binion died. Numerous witnesses testified at the trial supporting that fact.
No witnesses testified during trial that Mr. Tabish was present at Binion’s home at the time of his death, nor testified that Tabish’s vehicle was parked outside Binion’s home at the time of Binion’s death. No physical evidence was presented that ties Tabish to Binion’s residence at the time of Binion’s death. In fact, alibi witnesses testified that Tabish was in fact at All Star Concrete, miles from Binion’s home, on the day of the death.
The Clark County prosecution’s theory of the case is that Tabish was in alleged dire financial straits and he and Murphy conspired to murder Binion for financial gain. The thrust of the prosecution’s case was that on September 19, 1998, two days after Binion’s death, Tabish attempted to carry out the instruc-tions given to him by Binion to remove Binion’s silver located in an underground vault in Nye County, a vault that Tabish was hired to build for Binion for the purpose of housing his silver collection. Prior to Binion’s death, Binion had instructed Tabish that if something were to happen to him that Tabish was to remove the silver stored in Nye County so that Binion’s ex-wife would not get the silver he intended for his daughter. Binion gave Tabish these instructions on numerous occasions and even within the presence of one of Binion’s attorneys, Tom Standish, who even testified during trial of the very same instruction from Binion to Tabish. Tabish had even called the Sheriff of Nye County to advise him that Tabish was coming to get the silver pursuant to Binion’s wishes. Despite all of this, Tabish was arrested for the alleged theft of the silver and then ultimately charged with and convicted of the murder of Ted Binion.
B. Involvement of Federal Agencies
Defendant Department of Justice (hereinafter “DOJ”) is involved in the investigation of plaintiff Tabish through the actions of its division, defendant FBI. The DOJ and the FBI and their agents have participated in the criminal investigation of Lonnie “Ted” Binion’s death, for which plaintiff Tabish stands convicted and/or are otherwise involved in possessing critical and exculpatory information in the underlying criminal case of plaintiff Tabish, as explained below.
On December 13, 1999, a date prior to Tabish’s trial in state court, FBI Agent Gerald E. McIntosh prepared a federal affidavit in support of the use of wiretaps and submitted it to and was subsequently approved by United States District Court Judge, Johnnie Rawlinson. This McIntosh affidavit became known to the public on October 23, 2001, when attorneys for Robert Marshall, alleged to be one of the targets for wiretaps, filed a motion seeking to bar the government from using the affidavit or the fruits of the wiretap as evidence against Marshall, who was one of the defendants in the subsequent criminal prosecution due to the wiretap. See, United States v. Robert Marshall, et al., United States District Court Case No. CR-S-01-130-LDG-LRL. Marshall was charged in a federal drug case that evolved from a racketeering investigation. One of the key objectives of the wire intercept was to gain knowledge of the members of the criminal enterprise and their associates’ roles in the death of Ted Binion. It was determined that Ted Binion and his brother Jack Binion, and others were believed to be members of the criminal enterprise investigated by the FBI.
Specifically, McIntosh’s Affidavit explains that the death of Ted Binion was orchestrated and perpetrated by other individuals known to Confidential Informants #3 and #4, referenced by Agent McIntosh’s affidavit for wiretap intercept. Additionally, Confidential Informant #3 indicated that Jack Binion may have had a role in planning the death of his brother, Ted Binion. Such information could ultimately exonerate Tabish.
McIntosh’s affidavit further describes a criminal enterprise whose members have associated together for more than 30 years and members of said organization included Ted Binion and his brother Jack Binion. As a part of this criminal enter-prise, it is alleged that Jack Binion assisted in financing Caribbean Stud Casino in Aruba, which allegedly laundered money on the organization’s behalf. On September 2, 1998 (15 days before Ted Binion’s death), Mikohn Gaming, Inc., purchased the rights to Caribbean Stud for approximately $37 million. On September 17, 1998, the day Ted Binion died, he was to have received a check for $10 million dollars for his share of the sale of Caribbean Stud Casino.
McIntosh’s affidavit also sets forth that the FBI were aware that Confidential Informants #3 and #4 were specifically identified as having information regarding other individuals (not Richard Tabish) who were present at the homicide of Ted Binion, and his alleged reception of a certain $10 million check in September 17, 1998, the same date as his death. Confidential Informant #4 also relayed information learned that a pillow may have been used to suffocate Ted Binion during his death, a fact learned by Confidential Informant #4 prior to the testimony of an expert coroner and prior to any public release of information that the cause of death was asphyxiation rather than a drug overdose.

C. Plaintiff Tabish’s Efforts to Obtain Information
from Federal Agencies

As explained below, Mr. Tabish, through counsel, has attempted to obtain from the federal agencies, in sum, the following: (1) reports, information, documents, and tape recordings pertaining directly to the investigation of this case which may reflect on the thoroughness and quality of the inves-tigation and/or may lead to exculpatory evidence; (2) reports, information, and documents pertaining to decedent which may lead to exculpatory evidence; (3) reports, information, documen-tation, and tape recordings regarding other potential suspects and/or witnesses, including named individuals and unknown individuals who are associated with the criminal enterprise identified in McIntosh’s affidavit; and (4) information which may reflect on the credibility of witnesses and/or lead to exculpatory information. However, as explained below, Mr. Tabish has been unable to obtain any of the information and materials in possession of the Federal agencies which is relevant and necessary to his case.
On March 11, 2002, plaintiff Tabish sent a formal discovery request to the affiant of the wiretap application, Agent Gerald E. McIntosh of the FBI, under the provi-sions enumerated in 28 C.F.R. section 16.22. A copy of this request was also lodged with the legal office of the Federal Bureau of Investigation. Thereafter, a subpoena duces tecum demand was served on Agent McIntosh, requesting all information within the possession of Agent McIntosh and the federal government involv-ing the motive and death of Ted Binion, including but not limited to:
a. All FBI 302 forms referencing this homicide;

b. All correspondence between the federal government, including but not limited to Special Agent McIntosh, and the Las Vegas Metropolitan Police Department;

c. All correspondence between the federal government, including but not limited to Special Agent McIntosh, and the Las Vegas Metropolitan Police Department;

d. All correspondence between the federal government, including Agent McIntosh, and the Las Vegas District Attorney’s Office;

f. All interoffice correspondence generated by the federal government involving the Ted Binion case;

g. All wiretap applications and/or information involving Ted Binion and his homicide or where the motive to murder and death of Ted Binion is references;

h. All taped conversations referencing the same;

i. All interviews with identified and unidentified informants, including but not limited to CI#3 and CI#4 referenced in the affidavit of Special Agent McIntosh;

k. All notes, reports, internal memos, audio/video tapes, or any other tapes that relate to the circumstances surrounding this investigation;
l. All notes and reports regarding questioning of witnesses or suspects in this homicide; and

m. Any other logs or memorabilia relating to infor-mation within your agency's possession regarding the motive to murder and homicide of Ted Binion.

Despite the multiple attempts made by the defense to obtain this newly-discovered evidence, the DOJ has refused to comply with this request for information on the grounds that such disclosure would “interfere with enforcement proceedings” on an open, active investigation file.
ARGUMENT

The Compulsory Process and Due Process Clauses of the United States Constitution guarantee plaintiff Tabish the right to disclosure of all relevant and necessary information to his defense in the state court criminal proceedings against him which is in the sole possession of defendants. The prohibition against cruel and unusual punishment contained in the eighth amendment further requires that all relevant and necessary information be disclosed to plaintiff in order that he may fully defend against the state court proceedings. This Court may order defendants to produce the necessary and relevant infor-mation as an equitable remedy, to prevent the continuing viola-tion of plaintiff’s constitutional rights, pursuant to the Administrative Procedures Act and pursuant to the Mandamus Act. In the absence of such a remedy, plaintiff will be irreparably harmed by being forced to continued incarceration without all of the relevant, pertinent and necessary information to support his innocence and prepare in his defense a motion for new trial and writ of habeas corpus, to which he is entitled under the United States Constitution.
A. Jurisdiction of the Court and Standard of Review.
Plaintiff asserts three causes of action in his complaint, all of which provide this Court jurisdiction to review defen-dants’ actions and to issue the requested affirmative injunction and/or writ if mandamus. First, plaintiff asserts that defen-dants’ actions constitute a continuing violation of his Consti-tutional rights to compulsory process and due process, as guaranteed by the U.S. Constitution, Amendments V, VI, VIII, and XIV, and seeks equitable relief from this Court. See Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 392 (1971) (“where federally protected rights have been invaded, it has been the rule from the beginning that courts will be alert to adjust their remedies so as to grant the necessary relief,” quoting Bell v. Hood, 327 U.S. 678, 684 (1946)). Second, plaintiff seeks judicial review of final agency action which he asserts is arbitrary, capricious, an abuse of discretion, contrary to law and in contravention of his Constitutional rights, pursuant to the Administrative Procedures Act, 5 U.S.C. §§ 702, 706(2)(A) and (B). See, Elko County v. Siminoe, 109 F.3d 554, 556 fn 1 (9th Cir. 1997); In re Boeh, 25 F.3d 761, 764 fn 3 (9th Cir. 1994); Davis Enterprises v. U.S. EPA, 877 F.2d 1181, 1184 (3rd Cir. 1989); Appeal of Sun Pipe Line Co., 831 F.2d 22, 24 (1st Cir. 1987). Third, plaintiff requests a writ of mandamus compelling the named federal officials to perform duties owed to plaintiff under the United States Constitution, pursuant to the Mandamus Act, 28 U.S.C. § 1361. See In re Boeh, 25 F.3d at 764 fn 3.
Under all three causes of actions, the analysis of the Court is essentially the same. The question presented is whether the United States Constitution requires defendants to produce the information requested. See, Pennsylvania v. Ritchie, 480 U.S. 39 (1987). If the Court concludes that it does, then the Court may order protection under any or all causes of actions.
B. The Compulsory Process and Due Process Clauses Require Defendants to Produce All Information Relevant to Plaintiff’s Defense in the State Court Case.

The sixth amendment of the United States Constitution provides in pertinent part that “[i]n all criminal prosecutions, the accused shall enjoy the right [...] to have compulsory process for obtaining Witnesses in his favor.” U.S. Const., Amend. VI; Washington v. Texas, 388 U.S. 14, 18 (1967). The sixth amendment right to compulsory process encompasses both the right to compel the testimony of witnesses and the right to compel witnesses to appear in court with requested documents. Ritchie, 480 U.S. at 54-58. It empowers the defendant in a criminal case, as well as the prosecution, to compel the atten-dance of any individual and the production of any documents necessary to the criminal case, up to and including the President of the United States. See, id. at 55 (discussing United States v. Burr, 25 F.Cas. 30, 35 (No. 14, 692d) (CC Va. 1807) (holding that [Aaron] Burr’s compulsory process rights entitled him to serve a subpoena on President Jefferson, requesting the production of ... evidence”)); United States v. Nixon, 418 U.S. 683, 709 (1974).
The Supreme Court has repeatedly emphasized the importance to our system of criminal justice of the right of both sides to compel testimony in a criminal case. In the case of United States v. Nixon, for example, President Nixon attempted to avoid a subpoena for the Watergate tapes by asserting a blanket execu-tive privilege. The Supreme Court stated that this claim, while significant,
must be considered in light of our historic commitment to the rule of law. This is no-where more profoundly manifest than in our view that the twofold aim of criminal justice is that guilt shall not escape or innocence suffer.... The very integrity of the judicial system and public confidence in the system depend on full disclosure of all the facts, within the framework of the rules of evidence. To ensure that justice is done, it is imperative to the function of courts that compulsory process be available for the production of evidence needed either by the prosecution or by the defense.

Only recently the Court restated the ancient proposition of law ... that the public ... has a right to every man’s evidence, except for those persons protected by a constitu-tional, common-law, or statutory privilege. ... [T]hese exceptions to the demand forevery man’s evidence are not lightly created nor expansively construed, for they are in derogation of the search for truth.

Nixon, 418 U.S. at 708-709 (citations and quotation marks omitted).

In this vein, the Supreme Court has held that the right of the accused in a criminal case to compulsory process is a fundamental element of a fair trial and of due process of law. Washington, 388 U.S. at 18. “The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to present the defendant’s version of the facts as well as the prosecution’s to the jury so it may decide where the truth lies...This right is a fundamental element of due process of law.” Id. Accordingly, the Supreme Court applies a “due process analysis” to determine if the defendant’s right to compulsory process has been violated. Ritchie, 480 U.S. at 56; see also, Johnson v. Mississippi, 486 U.S. 578 (1988); Caldwell v. Mississippi, 472 U.S. 320 (1985) (exclusion of defendant’s proffered testimony violated due process clause).
Furthermore, the eighth amendment of the United States Constitution prohibits cruel and unusual punishment, see, Gardner v. Florida, 430 U.S. 349, 358 (1977); Estelle v. Smith, 451 U.S. 454, 468, fn. 11 (1981); Zant v. Stephens, 462 U.S. 862, 877 (1983).
In the present case, the sixth amendment Compulsory Process Clause, the fifth and fourteenth amendments Due Process Clauses, and the eighth amendment all require defendants to produce all information and documentation in their possession relevant to plaintiff’s defense in the state court case. Ritchie, 480 U.S. at 58; Nixon, 418 at 711-712. The United States Supreme Court has held that a third party must respond to a subpoena issued by a criminal defendant. See, Ritchie, 480 U.S. at 58. If the third party asserts a claim of privilege against disclosure, the third party must still produce the requested information to the court for an in camera review. Ritchie, 480 U.S. at 58; Nixon, 418 U.S. at 711-712. Further, in such cases, the court must release to the criminal defendant all documents relevant to his defense, notwithstanding a claim of privilege, fashioning a protective order to accommodate the other competing interests. Ritchie, 480 U.S. at 58.
In Pennsylvania v. Ritchie, supra, 480 U.S. 39, for example, the defendant in a state court criminal proceeding subpoenaed documents from a state agency regarding that agency’s investigation of child abuse allegations against the defendant. See, id. at 43. The state agency refused to comply, claiming that the records were privileged under a state statute. The trial court denied the defendant’s motion to enforce the subpoena without even reviewing the entire file of the agency. The United States Supreme Court affirmed the Pennsylvania Supreme Court’s reversal of conviction, applying a due process analysis to the issue presented. To determine the scope of the defendant’s due process right to the evidence, the Court turned to the Brady line of cases, observing :[i]t is well settled that the government has the obligation to turn over evidence in its possession that is both favorable to the accused and material to guilt or punishment.” Id. at 57 (citing United States v. Agurs, 427 U.S. 97 (1976) and Brady v. Maryland, 373 U.S. 83, 87 (1963)). The Court then held that because the statutory privi-lege was not absolute, the defendant had a right to production of all material within the possession of the state agency which satisfied the Brady standard. Id. at 58. In light of the claim of privilege, defense counsel did not have a right to review all of the files directly, but the files had to be produced to the trial court for an in camera review. Id. at 59-60. “[T]he court would [then] be obligated to release information material to the fairness of the trial.” Id. at 60. The Ritchie court also noted the Pennsylvania court’s observa-tion that the trial court “take appropriate steps to guard against improper dissemination of the confidential material, including, for example, fashioning of appropriate protective orders ....” Id. at 46 fn 6.
Similarly, in United States v. Nixon, supra, 418 U.S. 683, the Supreme Court rejected President Nixon’s blanket refusal to respond to a subpoena issued by the Special Prosecutor. Instead, the Court held that the trial court should review the subpoenaed materials in camera to determine whether materials for which the President asserted a privilege should nonetheless be disclosed to the prosecution. Nixon, 418 U.S. at 714. The Court observed that, “[t]he right to the production of all evidence at a criminal trial ... has constitutional dimensions. The sixth amendment explicitly confers upon every defendant in a criminal trial the right ‘to be confronted with the witnesses against him’ and ‘to have compulsory process for obtaining witnesses in his favor.’ Moreover, the fifth amendment also guarantees that no person shall be deprived of liberty without due process of law. It is the manifest duty of the courts to vindicate those guarantees, and to accomplish that it is essential that all relevant and admissible evidence be produced.” Id. at 711. While acknowledging that the President’s claim of privilege might have some merit, the Court cautioned that, “the allowance of the privilege to withhold evidence that is demonstrably relevant in a criminal trial would cut deeply into the guarantee of due process of law and gravely impair the basic function of the courts.” Id. at 712; see also United States v. Bryan, 339 U.S. 323, 331 (1950) (“When we come to examine the various claims of exemption [to responding to a subpoena], we start with the primary assumption that there is a general duty to give what testimony one is capable of giving, and that any exemptions which may exist are distinctly excep-tional, being so many derogations from a positive general rule.”).
Pursuant to Ritchie and Nixon, defendants must, at a minimum, produce all of the contested subpoenaed documents for an in camera review by the Court. Further, pursuant to Ritchie, the Court must then provide to plaintiff all information and documentation which is relevant to his innocence and defense to the charge of murder, as defined by the Brady line of cases, even if those documents fall within a recognized privilege. Whatever competing interests are served by the claim of privilege can be safeguarded by appropriate protective orders, but cannot justify withholding the information sought. Ritchie, 480 U.S. at 58; Nixon, 418 U.S. at 711-712.
Moreover, it must be emphasized that the Supreme Court in Ritchie held that the Brady line of cases defines the appro-priate scope of disclosure from the agency resisting the sub-poena, even though that agency was not directly involved in the prosecution of the defendant. Ritchie, 480 U.S. at 58. Indeed, Brady and its progeny are not based on an abstract duty owed by a particular prosecutor’s office to a defendant; rather, the Brady line of cases is based on the fundamental concept that justice requires that a defendant be convicted in a fair trial, one in which all of the relevant evidence is known and presented to the jury. See, Brady, 373 U.S. at 87; United States v. Agurs, 427 U.S. 97, 110 (1976) (“We are dealing with the defendant’s right to a fair trial mandated by the Due Process Clause of the Fifth Amendment”). As an inscription on the walls of the Justice Department reads (according to the Supreme Court), “the United States wins its point whenever justice is done its citizens in the courts.” Brady, 373 U.S. at 87. Thus, it is irrelevant that Plaintiff’s underlying criminal action is a state agency rather than a federal one. Due process requires the disclosure of all relevant and material evidence, particu-larly in light of the fact that the State of Nevada here seeks 20 years to life incarceration for Mr. Tabish.
Finally, courts have recognized that the FBI’s policies and procedures in regards to their investigations are not absolute and protected by privilege. In United States v. Salemme, et al., 91 F.Supp.2d 141, 174 (1999), the Court stated:
While the Department of Justice has historically respected the right of the FBI to maintain the secrecy of its sources from other agencies and federal prosecutors, courts have recognized their duty to compeldisclosure of an informants identity when it has been demonstrated that such information is relevant or helpful to the defense of an accused or essential to the fair determina-tion of a case.

91 F.Supp.2d at 174, citing Roviaro v. United States (1957) 353 U.S. 53, 60-61.

Accordingly, once again the main concern in whether or not information should be disclosed to a criminal defendant hinges on due process, despite the FBI’s policies in maintaining the secrecy of their sources and information.
Pursuant to Ritchie, Nixon, Brady and their progeny, plaintiff is constitutionally entitled to the following: (1) all exculpatory evidence or evidence which might reasonably lead to exculpatory evidence on the issues of guilt or punishment, Brady, 373 U.S. at 87, Agurs, 427 U.S. at 110; (2) all infor-mation which reflects on the thoroughness of the investigation of plaintiff’s case and/or reflects on potential bias of law enforcement personnel, Kyles v. Whitley, 514 U.S. 419 (1995); (3) information which might be used to impeach a witness, United States v. Bagley, 473 U.S. 667, 676 (1985); and (4) all infor-mation regarding benefits provided to State witnesses, Giglio v. United States, 405 U.S. 150, 154-155 (1972). To the extent that defendants assert legitimate privileges concerning the requested materials, defendants must produce those documents to the Court for an in camera review. The Court should then release any relevant documents to plaintiff, accompanied by any protective order which the Court deems appropriate to safeguard legitimate concerns for privacy, safety or national security. Ritchie, 480 U.S. at 58; Nixon, 418 U.S. at 711-712.
Here, the DOJ and FBI have refused to comply with this request for information and subpoena duces tecum on the grounds that such disclosure would “interfere with enforcement proceed-ings” in an open, active investigation file under 28 C.F.R. 16.26(b)(5). (See Exhibit D.) Yet this hypothetical and arbitrary concern about “interference with enforcement proceed-ings” is far outweighed when balancing the need for newly dis-covered evidence in conjunction with a subpoena request which is neither unreasonable nor oppressive and sought for good cause. Where Mr. Tabish’s life, liberty, and freedom hinges on dis-closure, compliance must be effectuated by this Court.
CONCLUSION
The Compulsory Process and Due Process Clauses of the United States Constitution, as well as the eighth amendment, prohibition against cruel and unusual punishment, require that all relevant evidence to support plaintiff’s motion for new trial and writ of habeas corpus, and in support of his overall defense of the underlying criminal case, be produced and made available to him. Plaintiff here seeks only that information that is relevant and necessary to his case, as he defends his liberty and freedom. To the extent that defendants raise legitimate concerns for privacy, safety or national security, these concerns can be accommodated through a protective order of this Court. Plaintiff seeks only that which is compelled by the Due Process Clause and which justice demands. And, as noted by the Supreme Court, “[t]he United States wins its point whenever justice is done its citizens in the courts.” Brady, 373 U.S. at 87.
Dated: July 26, 2002

Respectfully submitted,

J. TONY SERRA
_____________________________
PATRICK WALSH

Attorneys for Plaintiff
RICHARD B. TABISH