Opinion
2:11-cr-217-LDG-CWH
06-19-2015
UNITED STATES OF AMERICA, Plaintiff, v. NICHOLAS LINDSEY, Defendant.
DANIEL G. BOGDEN United States Attorney PETER S. LEVITT Assistant United States Attorney 333 Las Vegas Blvd., South Las Vegas, Nevada 89101 (702) 388-6336
DANIEL G. BOGDEN
United States Attorney
PETER S. LEVITT
Assistant United States Attorney
333 Las Vegas Blvd., South
Las Vegas, Nevada 89101
(702) 388-6336
Government's Motion to Unseal Portion of Trial Transcript (CR 156 at186)
The United States of America, by and through DANIEL G. BOGDEN, United States Attorney, and PETER S. LEVITT, Assistant United States Attorney, files this motion to unseal a portion of the transcript from the trial in the above-captioned case, as described more fully below.
On June 16, 2015, the undersigned left two messages for Lindsey's appellate attorney, William H. Gamage, Esq., to ascertain his position on this motion. As of the time of filing, the undersigned has not received a response.
CONVICTION AND APPEAL
After a jury trial in April 2013, Lindsey was convicted of nine counts of wire fraud and one count of aggravated identity theft, in violation of 18 U.S.C. § 1343 and 18 U.S.C. § 1028A(A)(1). On January 7, 2014, this Court entered judgment sentencing Lindsey to 132 months' imprisonment. Clerk's Record (CR) 147. Lindsey appealed. CR 144.
In his opening brief in CA No. 14-10004, Lindsey alleged that "the trial court failed to record several sidebar conferences[,] . . . [t]wo of [which] were clearly important to [his] appeal rights." Dkt. 37 at 32. Referring to page 186 of the transcript from the third day of trial (Apr. 3, 2013), Lindsey alleged that "[o]ne unrecorded conference likely dealt with specific objections . . . regarding 'denial of Lindsey's chosen defense' and the admission of expert witness testimony by unqualified individuals without proper notice . . . . Substantive discussion was obviously held . . . regarding these issues even though the sidebar conference was not recorded . . . ." Id. The undersigned has been assigned to write the answering brief on appeal.
REQUEST FOR RELIEF
Despite Lindsey's claim that the foregoing portion of day three of the trial was unrecorded, the transcript states: "Discussion at sidebar 2:14:15 p.m. until 2:20:30 p.m. Not on the record." CR 156 at 186 (cross-examination of Catherine Cosman). Moreover, after receiving Lindsey's opening brief on June 2, 2015, one of the trial prosecutors determined, through an exchange of e-mails with this Court's staff, that this six-minute portion of the trial was recorded, but that it had been sealed. Accordingly, to respond to Lindsey's appellate contention that this Court's ruling "likely dealt" with the denial of his "chosen defense," the government respectfully requests that this Court enter an order unsealing that portion of the transcript and making it available for review.
CONCLUSION
Wherefore, for the foregoing reasons, the government respectfully requests that this Court enter an order unsealing the transcript memorializing the "[d]iscussion at sidebar" from "2:14:15 p.m. until 2:20:30 p.m." on April 3, 2013. CR 156 at 186.
DATED this 16th day of June, 2015.
DANIEL G. BOGDEN
United States Attorney
s/ Peter S . Levitt
PETER S. LEVITT
Assistant United States Attorney
ORDER
IT IS SO ORDERED.
DATED this 19 day of June, 2015.
/s/_________
Lloyd D. George
Sr. U.S. District Judge