State of Nevada Files Motion to Quash Allegations of Corruption by Staff at ESP
Posted By MTWT - Chris on June 10, 2009 
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEVADA
UNITED STATE OF AMERICA,
Plaintiff,
v.
RONALD SELLERS, et al., Defendants.
Case No. 2:07-cr-00145-KJD-PAL
NEVADA DEPARTMENT OF
CORRECTIONS’ MOTION TO QUASH
The Nevada Department of Corrections, by and through their attorneys, Catherine
Cortez Masto, Attorney General of the State of Nevada, and Jill C. Davis, Senior Deputy
Attorney General move this Court for an Order Quashing Subpoena in a Criminal Case. This
motion is made and based on the following memorandum of points and authorities as well as
all of the documents and pleadings on file herein.
MEMORANDUM OF POINTS AND AUTHORITIES
I. NATURE OF MOTION
The Subpoena in question requests “All documents relating to the investigation of the
Aryan Warriors including but not limited to the personnel files of correctional officers
investigated about their conduct involving the Aryan Warriors. These Officers include but are
not limited to Officer Scott Needs, Graham, Weiden, Hoy, Meyers, Cobb, and Riches.” (See
Exhibit A). The documents were requested by Defendant’s counsel Christ T. Rasmussen,
Esq. The request is overbroad and seeks confidential personnel information.
II. LEGAL STANDARDS
A. Federal Rule of Criminal Procedure 17
Rule 17(c) provides:
“(c) Producing Documents and Objects.
“(1) In General. A subpoena may order the witness to produce any
books, papers, documents, data, or other objects the subpoena
designates. The court may direct the witness to produce the
designated items in court before trial or before they are to be
offered in evidence. When the items arrive, the court may permit
the parties and their attorneys to inspect all or part of them.
“(2) Quashing or Modifying the Subpoena. On motion made
promptly, the court may quash or modify the subpoena if
compliance would be unreasonable or oppressive.”
On the face of it, the Rule appears to permit, subject to the court’s discretion; the use
of compulsory process to obtain pretrial disclosure in criminal cases provided only that
compliance with a subpoena not be unreasonable or oppressive. In United States v. Nixon, a
case involving a subpoena issued on motion of the government, however, the Supreme Court
made clear that the Rule is not so capacious. 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039
(1974). Regarding pretrial disclosure:
“[I]n order to require production prior to trial, the moving
party must show: (1) that the documents are evidentiary and
relevant; (2) that they are not otherwise procurable reasonably in
advance of trial by exercise of due diligence; (3) that the party
cannot properly prepare for trial without such production and
inspection in advance of trial and that the failure to obtain such
inspection may tend unreasonably to delay the trial; and (4) that
the application is made in good faith and is not intended as a
general ‘fishing expedition.’ ” . Id. at 699-700, 94 S.Ct. 3090
(footnote omitted).
B. Personnel Records Are Confidential
Personnel records are confidential under Nevada state law.
NAC 284.718 Confidential records. (NRS 284.065, 284.155, 284.407)
1. The following types of information, which are maintained by the
Department of Personnel or the personnel office of an agency, are
confidential:
(a) Information relating to salaries paid in other than governmental
employment which is furnished to the Department of Personnel on
the condition that the source remain confidential;
(b) Any document which is used by the Department of Personnel
or an agency in negotiations with employees or their
representatives which has not been made public by mutual
agreement;
(c) The rating and remarks concerning an applicant by the
individual members of the board or assessors of a center for
assessment;
(d) Any document which is used by the Department of Personnel
or an agency in the process of interviewing an applicant, including,
without limitation, a document containing interview questions,
evaluation tools used for rating applicants and any notes
concerning an applicant that were taken by a person as part of the
process of rating an applicant;
(e) Materials used in examinations, including suggested answers
for oral examinations;
(f) Records and files maintained by the Employee Assistance
Program;
(g) Reports by employers, appointing authorities or law
enforcement officials concerning the hiring, promotion or
background of applicants, eligible persons or employees;
(h) The class title and agency of an employee whose name is
excluded from the official roster, as provided in subsection 3 of
NAC 284.714, when an inquiry concerning the employee is
received;
(i) Any information contained on a person’s application or relating
to his status as an eligible person; and
(j) Information in the file or record of employment of a current or
former employee which relates to his:
(1) Performance;
(2) Conduct, including any disciplinary actions taken against him;
(3) Race, ethnic identity or affiliation, sex, disability or date of birth;
(4) Home telephone number; or
(5) Social security number.
2. If the employee has requested that his personal mailing address
be listed as confidential, his file must be so designated and list his
business address.
3. The name of any beneficiary of an employee contained in the
payroll document must not be released to anyone unless:
(a) The employee dies; or
(b) The employee signs a release.
4. Any records in the possession of the Committee on
Catastrophic Leave created pursuant to NRS 284.3627 that reveal
the health, medical condition or disability of a current or former
employee or a member of his immediate family are confidential.
5. Any notes, records, recordings or findings of an investigation
conducted by the Department of Personnel relating to sexual
harassment or discrimination, or both, and any findings of such an
investigation that are provided to an appointing authority are
confidential.
Furthermore, there extends extra confidentiality to information regarding personal
information pertaining to peace officers.
NRS 289.025. Confidentiality of home address and photograph of peace officer in
possession of law enforcement agency; exceptions:
1. Except as otherwise provided in subsections 2 and 3 and NRS
239.0115, the home address and any photograph of a peace
officer in the possession of a law enforcement agency are not
public information and are confidential.
2. The photograph of a peace officer may be released:
(a) If the peace officer authorizes the release; or
(b) If the peace officer has been arrested.
3. The home address of a peace officer may be released if a
peace officer has been arrested and the home address is included
in any of the following:
(a) A report of a 911 telephone call.
(b) A police report, investigative report or complaint which a person
filed with a law enforcement agency.
(c) A statement made by a witness.
(d) A report prepared pursuant to NRS 432B.540 by an agency
which provides child welfare services, which report details a plan
for the placement of a child.
III. LEGAL ARGUMENT
A. Defendants are on a overly broad fishing expedition
Defendants are seeking the personnel files of seven (7) correctional officers, and any
documents relating to any investigation of the Aryan Warriors. (See Exhibit A). The
Subpoena is vague as to which officer files it is seeking as only generic last names are listed.
(See id.) Personnel files contain various documents from an employee’s initial work
application, certificates of appreciation, time cards, and other employment information. This
broad request is clearly not seeking specific evidentiary information, but is the general type of
discovery matter that is prohibited under Nixon. See Nixon, 418 US 683, 698 (1974).
The lack of specificity creates relevancy and admissibility issues. It is unclear how
personnel records are relevant to a criminal prosecution. Where specific, relevant information
is not sought, there is no prejudice to a criminal defendant not receiving confidential
personnel records, as such records are not public records. Sonner v. State of Nevada, 112
Nev. 1328 (1996). It is not NDOC’s duty to identify how the general confidential documents
sought are relevant or admissible. The party seeking the subpoena bears the burden of
demonstrating the relevancy and admissibility of the documents sought. US v. Reed, 726
F.2d 570, 577 (9th Cir. 1984).
B. Documents sought are confidential
The records sought in this matter are confidential pursuant to state law. NAC 284.718
and NRS 289.025. In general personnel files are confidential and the employment records of
peace officers is further restricted. See ids. The Subpoena clearly seeks information that is
confidential and may not be released. NDOC is willing to submit the personnel files in camera
to the Court and upon order of the Court will send any documents so ordered to defendants.
IV. CONCLUSION
Based upon the forgoing, NDOC requests that this Court grant the Motion to Quash. If
the Court does not grant the Motion to Quash, NDOC request that the personnel files be
submitted in camera to the Court for review as the documents are confidential.
Respectfully submitted,
CATHERINE CORTEZ MASTO
Nevada Attorney General
By: /s/_JILL C. DAVIS_________
JILL C. DAVIS
Senior Deputy Attorney General
Public Safety Division
Source: United States District Court, Case No. 2:07-cr-00145-KJD-PAL
I hope every one of these corrupted CO’s are placed under the prison. They need to be locked away with the very people they are paid to protect us from. They are no better; if anything worse. They commit their crimes behind the shield and in uniform.
Gracie
I don’t know about the Aryan issue. However, the issue stands alone. In whatever venue, anyone, including the Attorney General, who protects corrupt Correction Officers, is by their action, just as corrupt. The problem stems from those turning their heads when they know the corruption exists, and choosing not to do anything when they have full power, or access to the power to make a difference.
Shame on any official who protects a corrupt officer, in any arena. God will hold you accountable, in the end, for not doing the right thing. It’s your responsibility to clean out, the badged criminals, in every leg of the Justice and penal system.
If officials, want respect for their positions, be the first to be respectful. Take an honorable and responsible position to stop the cover up of corruption. Do your job. Uphold all of the laws. Not just the ones you like.
You’ll track down, to the last breath, a law breaker on the street, but turn a blind eye and deaf ear, to the law breakers, and abusers in your own employment. Stop trying to pretend you have no proof. It’s not proof that’s needed here, it integrity.
Again, SHAME on any official, if your a part of the cover up, everyone knows exists.