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COMMISSION ON JUDICIAL SELECTION

APPLICATION

SECOND JUDICIAL DISTRICT COURT DEPARTMENT 1

______JAMES “Jim” ERIC KELLER _ (Insert applicant name)

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Application Deadline: 5:00 p.m. May 19, 2017 5 SECTION I: PUBLIC INFORMATION (QUESTIONS 1 THROUGH 47)

Personal Information

1. Full Name:

James “Jim” Eric Keller

2. Have you ever used or been known by any other legal name (including a maiden name)? ___ If so, state name and reason for the name change and years used.

No.

3. Work Address:

United States Attorney’s Office, 100 West Liberty Street, Suite 600, Reno, Nevada 89501

4. How long have you been a continuous resident of Nevada?

Since 2007.

5. Age:

45.

(NRS 3.060 states that a district judge must be at least 25 years old.)

Employment History

6. Using the format provided in Attachment “A” please start with your current employment or most recent employment, self-employment, and periods of unemployment for the 20 years immediately preceding the filing of this Application.

Please see below.

Application Deadline: 5:00 p.m. May 19, 2017 7

United States Attorney’s 100 West Liberty Street, August 2007 – present Office for the Suite 600, Reno, NV 89501, District of Nevada Phone: 775-784-5438 Position: Assistant United Supervisors: Reason for Leaving: States Attorney, Criminal Steven W. Myhre, Not applicable Division, Organized Crime Acting United States Attorney Drug Enforcement Task Force (702) 388-6336 Attorney Sue Fahami, Reno Branch Office Chief (775) 784-5438

 Executive Office for United States Attorneys Director’s Award presented in Washington, D.C., for Superior Performance as an Assistant U.S. Attorney for prosecution and three-week trial of U.S. v. Young, a multi-layer foreign exchange market scheme causing $16 million in losses to 1200 victims; Young sentenced to 25 years’ imprisonment (2014).  Prosecuted Young’s attorney for accessory after the fact to money laundering of his client’s ill- gotten gains; attorney sentenced to 366 days’ imprisonment (2015).  As lead Organized Crime Drug Enforcement Task Force (OCDETF) attorney for Northern Nevada, prepared, obtained, and directed 31 wiretaps from applications to takedowns; managed all types of narcotics cases from search warrants to charging documents to sentencings.  Forerunner of Analogue Act prosecutions; successfully tried first synthetic analogue case in District of Nevada; prosecuted 26 synthetic drug cases from investigation to sentencing; subject lecturer at summits, seminars, and on television; commented on proposed analogue legislation.  Managed public corruption, sexual assault, child pornography, violent crime, gang, bank robbery, firearm, money laundering, identity theft and criminal tax investigations and cases.  Handled all aspects of 13 felony jury trials and 4 bench trials to verdict.  Heroin/Synthetic Opioid Point of Contact for District of Nevada (2016-present); lead prosecutor in complex opioid prescription case involving multiple victims and defendants.  Litigated all types of pre-trial motions, including motions to dismiss, suppression motions, severance motions, and motions in limine on the briefs, at argument and in evidentiary hearings.  United States Department of Justice National Advocacy Center in Columbia, South Carolina faculty instructor for grand jury, trial advocacy, advanced narcotics, and synthetic drug courses; lecturer on voir dire and jury selection; exhibits, demonstrative aids and evidentiary foundations; handling accomplice witnesses; grand jury matters; and Analogue Act cases (2012-present).  Executive Office for U.S. Attorneys Evaluation and Review Staff (EARS) evaluator; responsible for on-site assessment of other United States Attorney’s offices throughout the country for compliance with national policies and procedures (2011-present).  Discovery Committee member (2014-15).  Hiring Committee member (2013-15).  Recipient of OCDETF Pacific Regional Award for multiple-wiretap investigation leading to the dismantling of three drug trafficking organizations operating in the Reno/Sparks area (2010).  All-Threats All Crimes Co-Coordinator for District of Nevada; handled terrorism-related investigations and matters (2007-2009).  Top Secret Security Clearance.

Application Deadline: 5:00 p.m. May 19, 2017 8

United States Attorney’s 450 Golden Gate Avenue, March 2004 – August 2007 Office for the Northern San Francisco, CA 94102, District of California Phone: (415) 436-7200 Assistant United States Supervisors: Brian J. Stretch, Departed for Assistant United Attorney, Criminal Division, United States Attorney States Attorney position in Major Crimes Section (415) 436-7200 District of Nevada (Oakland), Strike Supervising Mentors: Force/Organized Crime Hon. Charles “Ben” Burch, Section (San Francisco) Department 23, Superior Court; Contra Costa County (925) 608-1123 Hon. Lewis A. Davis, Department 13, Superior Court; Contra Costa County (925) 608-1113

 Handled complex investigation, takedown, and prosecution of five principals of a debt elimination scheme who sabotaged $88 million in clients’ mortgages; principals directed clients to quitclaim their encumbered property interests to trusts, and principals, in capacity as trustees, sent demand notices to clients’ lenders for “proof of validity” of mortgages to the principals’ “unilateral satisfaction” within 10 days; principals thereafter recorded fraudulent reconveyances, purporting to transfer lenders’ secured interests to clients in 1400 properties.  Extradited and prosecuted a principal of the debt elimination scheme who had fled to Panama to avoid facing charges in a 67-count indictment.  Successfully handled all aspects of felony jury trial as lead counsel, including voir dire and jury selection, opening statement, examination of all government witnesses, cross-examination of all defense witnesses, closing argument, and sentencing; drafted prevailing Ninth Circuit briefs.  Worked violent crimes in aid of racketeering/capital case involving a gang member’s murder of a cooperating federal witness and related gang activity.  Managed hundreds of criminal cases from investigation to sentencing, including bank robbery, firearm, drug trafficking, passport fraud, environmental crime, and identity theft cases.  Assisted colleagues with takedown of extensive sex trafficking organization.  Handled wiretap investigation, takedown, and prosecution of Richmond-based gang for drug trafficking and related firearms conduct.  Hiring Committee member (2006-07).

Application Deadline: 5:00 p.m. May 19, 2017 9

Mayer Brown LLP 1675 Broadway, June 2001 – March 2004 New York, NY 10019 Phone: (212) 506-2500 Associate, Supervisors: Departed to accept position as General Litigation Peter K. Rosen, Assistant United States Partner, Latham & Watkins, Attorney in Northern District Los Angeles, California of California (213) 891-8778 Simeon M. Kriesberg, Partner, Mayer Brown LLP 1999 K Street, N.W. Washington, D.C. (202) 263-3214

 Drafted complaints, motions, responses, and memoranda in property and liability insurance litigation arising out of the tragic events of 9/11; coordinated defenses of depositions.  Conducted internal investigation for client as to Foreign Corrupt Practices Act exposure.  Handled litigation matters in state courts for multiple clients; conducted depositions; engaged in settlement negotiations; fostered client relations.  Argued motions to dismiss and motions for summary judgment in federal and state courts.  Drafted opinion letters regarding contract provisions and force majeure clauses.  Advisor for firm’s pro bono refugee asylum cases; achieved asylum for Liberian client.  Co-drafted Supreme Court brief regarding inadvertently suggestive line-up identification.

Bronx County District 198 East 161 Street September 1997 – June 2001 Attorney’s Office Bronx, New York 10451 Phone: (718) 590-2000 Assistant District Attorney, Supervisors: Departed to commence Criminal Court Bureau Irene Cassetta, position as litigation associate Grand Jury Bureau Chief, Narcotics Bureau, at Mayer Brown LLP Narcotics Bureau (718) 590-2414 Nicole Keary, Deputy Chief of Trial Division (718) 590-2306

 Conducted all aspects of jury trials as lead prosecutor; argued pre-trial motions; conducted voir dire; selected juries; delivered opening statements and closing arguments; examined lay and expert witnesses; admitted and published evidence; cross-examined defendants and defense witnesses; proposed jury instructions; and litigated sentencings.  Tried 16 cases as lead or sole prosecutor; supervising second seat at trial for colleagues.  Drafted responses to motions to suppress; examined witnesses at hearings; handled plea colloquies; voluntarily wrote appellate brief to advance writing skills; mentored colleagues.  Advised felony and homicide investigations as on-call Assistant District Attorney.  Interviewed informants and conducted informants’ examinations before the court in support of search warrants; handled hundreds of grand jury presentations from violent crimes to narcotics offenses; conducted post-Miranda video statements of arrestees.

Application Deadline: 5:00 p.m. May 19, 2017 10

Wiley Rein LLP 1776 K Street, NW, January 1997 – July 1997 Washington, D.C. 20006 Phone: (202) 719-7000 Law Clerk, Supervisor: Employ during third year of General Litigation, Mary E. Borja, law school; departed to take Insurance Law Group Partner, Wiley Rein LLP bar exam and to serve as an (202) 719-4252 Assistant District Attorney

 Reviewed recent decisions in the field of insurance law and drafted case summaries; researched various insurance law issues for partners; prepared memoranda with findings.  Conducted state-by-state analysis of anti-indemnity statutes and related case law; prepared booklet with findings for insurance litigation group.  Assisted litigation team in New York with trial-related research and preparation; reviewed discovery; managed case files.

Educational Background

7. List names and addresses of high schools, colleges and graduate schools (other than law school) attended; dates of attendance; certificates or degrees awarded; reason for leaving.

 Cresskill High School, Cresskill, New Jersey: September 1985 to June 1989. o High School Diploma

 The University of Vermont, Burlington, Vermont: August 1989 to May 1993. o Bachelor in Arts, cum laude o Majors: Political Science and History o Minor: Environmental Studies

8. Describe significant high school and college activities including extracurricular activities, positions of leadership, special projects that contributed to the learning experience.

Please see below.

Application Deadline: 5:00 p.m. May 19, 2017 11

CRESSKILL HIGH SCHOOL Cresskill, New Jersey (1985-1989)

Leadership Positions / Accolades

Class Salutatorian National Honor Society Captain, Varsity Soccer (1989) (1988-89) (1988) New Jersey Boys State High Debate Competition Judge Captain, Junior Varsity School Representative (1988) (1988-89) Soccer (1986)

Activities

Debate Team (1986-89) Academic Decathlon Writer, School Newspaper, (1988-89) The Communique (1986-88) Varsity Soccer (1987-88) Varsity Track (1989) Ski Club (1985-89) Junior Varsity Soccer Junior Varsity Baseball High School Marching Band (1985-86) (1986-88) (1985-88)

Employment

Landscaper Frank C. Garthoffner (1985-89) (weekends)

Special Projects

High School Foreign Student Lived with family for two (1986, 1988) Exchange Program weeks in Vervins, France

Application Deadline: 5:00 p.m. May 19, 2017 12

THE UNIVERSITY OF VERMONT Burlington, Vermont (1989-1993) Bachelor of Arts, cum laude Majors: Political Science and History Minor: Environmental Studies

Leadership Positions / Accolades

Outstanding Student Leader Phi Beta Kappa Boulder Society Commencement Award (University’s Honor Society) Political Science Phi Alpha Theta Golden Key Departmental Honors (History Honor Society) National Honor Society Senator, Student Government Dean’s List President, Association (6 consecutive semesters) Boulder Society

Theses

Political Science Thesis: War and Constitutional Theory: The War Powers Debate of the United States Government History Thesis: From Taxation to Representation: The Economic Factors of the American Revolution

Activities

Senator; Chair, Student Student Government (1992-93) Action Committee; Member, Association Academic Affairs Committee

 Voice and representative of the student body; allocated $600,000 in student government funds to more than 100 student club organizations.  Chair, Student Action Committee: Implemented safe-ride service for students seeking on- campus late-night transportation to their residences.  Member, Academic Affairs Committee: Initiated student advisor/mentor program.

President Boulder Society (1992-93)

 Strengthened communications between the President and University’s oldest honor society; sponsored United Way raffle; led Boulder Society commencement ceremony.

Student Representative Board of Trustees (1992-93) Academic and Educational Policy Committee

 Explored and debated what academic changes to propose within the University, such as cross- college minors.

Application Deadline: 5:00 p.m. May 19, 2017 13

Member President’s Advisory (1992-93) Committee

 Provided President with student input regarding University’s budget and students’ needs.

Solicitation Director Senior Class Council (1992-93)

 Organized recruitment of seniors to raise revenue for senior class gift; held class events.

Voting Panel Member Academic Honesty (1991-93) Hearing Panel

 Heard cases of alleged academic dishonesty; rendered findings.

Student Representative Faculty Senate Student (1991-93) Activities Committee

 Promoted efforts to enhance diversity in the student body; proposed academic honor code.

News writer Vermont Cynic (1991-93)

 Held interviews with the President regarding University’s policies; reported student life.

Counselor/Volunteer Volunteers In Action (1991)

 Coached challenged children in track and field events for Vermont Special Olympics.

Member Varsity Men’s Soccer (1990)

 Goalkeeper; competed in training season.

Employment

Butler Service Group, Data Entry Clerk, (May 1990 – August 1990) Montvale, New Jersey Legal Department Clerk, (Winter 1990-1991) Administrative Assistant (July 1991 – August 1991) University Intramural Sports, Soccer Referee (January 1990 – February Burlington, Vermont 1993) (part time) The Gap, Inc., Salesperson (June 1992 – December 1992) Burlington, Vermont (part time) Sheraton Hotel and Busboy (June 1992 – August 1992) Conference Center, (part time) Burlington, Vermont Grand Union Supermarket Produce Clerk / Register (May 1991 – July 1991) (part time) Eddie Bauer Outlet Store, Salesperson (December 1990 – January Paramus, New Jersey 1991) (part time / seasonal)

Application Deadline: 5:00 p.m. May 19, 2017 14

9. List names and addresses of law schools attended; degree and date awarded; your rank in your graduating class; if more than one law school attended, explain reason for change.

GEORGE WASHINGTON UNIVERSITY LAW SCHOOL Washington, D.C. (1994 to 1997) Juris Doctor, cum laude

Honors

Class Rank: 153 out of 450 Honors: Legal Research and Honors: Oral Advocacy Writing

10. Indicate whether you were employed during law school, whether the employment was full-time or part-time, the nature of your employment, the name(s) of your employer(s), and dates of employment.

I was employed part-time during academic year, full-time in summers (internships unpaid):

Law Clerk, Washington, D.C. January – July 1997 Wiley Rein LLP Summer Associate, Atlanta, Georgia June – August 1996 Smith, Currie & Hancock Summer Honors Program, Washington, D.C. May – June 1996 Unites States Department of Treasury Law Intern, United States Department of Washington, D.C. January – May 1996 Justice, Environmental Crimes Section August – December 1996 Law Intern, United States Attorney’s Office Washington, D.C. June – August 1995 for the District of Columbia Judicial Intern, Hon. Mary Ellen Abrecht, Washington, D.C. May – June 1995 Superior Court for the District of Columbia Research Assistant, Professor Cheryl Block, Washington, D.C. May – August 1995 George Washington University Law School Research Assistant, Professor Steve Saltzburg, Washington, D.C. May – August 1995 George Washington University Law School

11. Describe significant law school activities including offices held, other leadership positions, clinics participated in, and extracurricular activities.

Offices Held

Articles Editor, The George Washington Academic Affairs Director, Deputy Director, University International Law Journal Student Bar Association (1996-97) (1996-97), (1995-96)

Application Deadline: 5:00 p.m. May 19, 2017 15

Article

Constitutional Law Seminar Article: Interpretation and Application of Religious Freedom Restoration Act’s “Least Restrictive Means”

Activities

The George Washington Student Bar Association Environmental Law Group University International Law Representative (1994-97) Member (1994-97) Journal (1995-97) United States Department of Summer Honors Program, Law Intern, United States Justice, Environmental Crimes United States Department Attorney’s Office for the District Section Internship (1996) of Treasury (1996) of Columbia (1995) Law Intern, Hon. Mary Ellen Moot Court Virginia Adult Men’s Soccer Albrecht, District of Columbia Competition (1995) League (1994-96) Superior Court (1995)

Law Practice

12. State the year you were admitted to the Nevada Bar.

2007.

13. Name states (other than Nevada) where you are or were admitted to practice law and your year of admission.

New York, 1998.

Also admitted in the following courts:

 United States District Court for the Eastern District of New York, 2001.  United States District Court for the Southern District of New York, 2001.  United States District Court for the Northern District of California, 2004.  United States Court of Appeals for the Ninth Circuit, 2004.  United States District Court for the District of Nevada, 2007.

14. Have you ever been suspended, disbarred, or voluntarily resigned from the practice of law in Nevada or any other state? If so, describe the circumstance, dates, and locations.

No.

15. Estimate what percentage of your work over the last 5 years has involved litigation matters, distinguishing between trial and appellate courts. For judges, answer questions 16-20 for the 5 years directly preceding your appointment or election to the bench.

100% trial court work.

Application Deadline: 5:00 p.m. May 19, 2017 16 16. Estimate percentage of time spent on (1) domestic/family and juvenile law matters, (2) civil litigation, (3) criminal matters, and (4) administrative litigation.

100% criminal matters.

17. In the past 5 years, what percentage of your litigation matters involved cases set for jury trials vs. non-jury trials?

98% jury trials. Only non-jury trials have been a few low-level misdemeanors and petty offenses occurring on federal lands.

18. Give the approximate number of jury cases tried to a conclusion during the past 5 years with you as lead counsel. Give the approximate number of non-jury cases tried to a decision in the same period.

As lead or co-lead counsel, I have handled five jury trials to conclusion (including sentencings) in the last five years:

 United States v. Rosendo Salgado, 3:13-CR-0056-LRH-VPC  United States v. Victor Orozco, 3:13-CR-0048-MMD-VPC  United States v. Iqbal Singh-Sidhu, 3:13-CR-0032-RCJ-VPC  United States v. Jose Rojas-Guzman, 3:10-CR-0109-ECF-VPC  United States v. Rick Young, 3:08-CR-0120-LRH-VPC

In the last five years, I had three jury trials with a colleague who served as lead counsel:

 United States v. Lawrence Kominek, 3:14-CR-0025-HDM-VPC  United States. v. Robert Kimmel, 3:14-CR-0054-RCJ-VPC  United States v. Efrain Ibarra-Flores, 3:13-CR-0085-HDM-VPC

I had three non-jury trials before magistrate judges in the last five years, most recently:

 United States v. Johnny Lawrence, 2016-007-CVB-WGC (November 2016).

19. List courts and counties in any state where you have practiced in the past 5 years.

 United States District Court for the District of Nevada, Washoe County  United States District Court for the District of Nevada, Clark County  I am a Special Assistant United States Attorney for the Eastern District of California for a public corruption investigation for which the United States Attorney’s Office for the Eastern District of California is recused; for that matter, I am authorized to practice in the United States District Court for the Eastern District of California.

20. List by case name and date the five cases of most significance to you (not including cases pending in which you have been involved), and list or describe: a. case name and date, b. court and presiding judge and all counsel c. the importance of each case to you and the impact of each case on you, d. your role in the case.

Application Deadline: 5:00 p.m. May 19, 2017 17

In re Grand Jury Proceeding – case number unassigned to Bronx Supreme Court  Spring 1999 – Bronx, New York – Knife-point robbery of a black bubble North Face jacket the victim was wearing while walking down the street. At first glance, this robbery did not seem different from others and warranted grand jury presentation for an indictment.  Upon further investigation, the victim’s identification of the defendant was flawed. Rather than rushing to indictment, I withdrew the grand jury matter and examined the alibi.  Cannot recall who served as defense counsel. Because the case was ultimately dismissed, it was not assigned a Bronx Supreme Court docket number.  The results of the investigation revealed that the victim simply wanted a black bubble North Face jacket in exchange for the one taken at knife-point from him; victim made intentional misidentification of an innocent 18-year old who happened to be wearing a black bubble North Face jacket in the area. Dismissed the case. Exonerated an innocent 18-year old high school honor roll student.  To me this case emphasizes the importance of being vigilant when dealing with witnesses and identifications. I always discuss this case in my lecture to new federal prosecutors on “Handling Accomplice Witnesses.” Each case is different, and each is significant and important to those involved. This is especially true in a criminal matter where an individual’s liberty is at stake. This case reminds me that the pursuit of justice must never be compromised. As Justice Holmes stated in Berger v. United States, 295 U.S. 78, 88 (1935), a prosecutor’s role “is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.”  Although the criminal cases I reference below led to successful verdicts, to me this is one of the most important results I have ever achieved in my legal profession.

Application Deadline: 5:00 p.m. May 19, 2017 18 U.S. v. Rick Young – 3:08-CR-0120-LRH-VPC  March 2011 trial before Hon. Larry R. Hicks, United States District Court for the District of Nevada, Reno. Donald Hill, Esq. and Rick Cornell, Esq., were defense counsel.  A sophisticated fraud led by Young involving the foreign exchange market exceeding $16 million in losses and 1200 victims. Three-week trial with more than 30 witnesses.  Mr. Young was convicted of all counts and sentenced to 300 months’ imprisonment.  Case spilled into prosecution of a Las Vegas attorney for accessory to money laundering in U.S. v. R.C.R., 2:14-CR-022-KJD-CWH before Hon. Kent J. Dawson, United States District Court for the District of Nevada, Las Vegas. Richard A. Wright, Esq. and Margaret Stanish, Esq., were defense counsel. R.C.R. was sentenced to 366 days’ jail.  I served as co-counsel with the First Assistant of the United States Attorney’s Office in the investigation and prosecution of the Young case and the related attorney prosecution.  This case was important to me because it reflected an enormous betrayal of clients’ trust by a charismatic conman. Young defrauded an 83-year-old former commercial airline pilot of all of his retirement savings, a working mother out of her home, and 1200 other victims of their hard-earned assets. The gravity of loss was heartbreaking. Mr. Young boasted using a fail-safe automated trading program on the foreign exchange market when no program existed. To disguise his million-dollar losses, Mr. Young masterminded a Ponzi scheme, luring his clients to invest more of their money. This case was important to me in that justice was served with Mr. Young’s conviction by a jury and his 25-year sentence by Judge Hicks. I witnessed how devastating a sophisticated conman can be to so many victims and how the betrayal of trust can destroy so many families.  The impact of the related R.C.R. case on me was that was no one is above the law, including attorneys, and that Young was a skilled conman, convincing his attorney to break the law.

U.S. v. Jose Rojas-Guzman – 3:10-CR-0109-ECF-VPC (then 3:10-CR-0109-RCJ-VPC)  December 2011 trial before Hon. Edward C. Reed, Jr., Senior United States District Judge for the District of Nevada, Reno. Last jury trial over which Judge Reed presided.  Glynn Cartledge, Esq. and Micheline Fairbank, Esq. were defense counsel.  I was lead counsel in the case, which included a federal wiretap and several search warrants as part of a coordinated takedown of a drug trafficking organization.  Defendant was a large-scale drug trafficker who ran his multi-person Reno operation from his home in San Mateo. The jury convicted the defendant of all counts. Judge Jones, who had to substitute for Judge Reed, sentenced the defendant to 293 months’ imprisonment.  Judge Reed will always be the epitome of a judge I aspire to be; His Honor treasured the respect, dignity, and integrity of the judiciary and the law and the sanctity of the courtroom. This case was important to me because it was an honor to participate in the last jury trial over which His Honor presided and to witness Judge Reed adjudicate with fairness, integrity, and a mastery of the law in every case. If selected to serve, I will strive to emulate Judge Reed.

Application Deadline: 5:00 p.m. May 19, 2017 19 U.S. v. Iqbal Singh-Sidhu – 3:13-CR-0032-RCJ-VPC  February 2015 trial before Hon. Robert C. Jones, United States District Court for the District of Nevada. Defense counsel was Richard Molezzo, Esq. I was lead counsel.  The trial was first of its kind in the District of Nevada, and fourth overall in the nation, charging Analogue Act violations for the distribution synthetic cannabinoids for human consumption. Defendant did so in substantial quantities from his convenience store.  Defendant was convicted of 17 counts in a jury trial; sentenced to 9 years’ imprisonment.  This case was important to me because it demonstrated how the Analogue Act can be used to prosecute a large-scale suppliers of synthetic cannabinoids. This was a righteous case, given the increasing distribution of these substances in our community and the need to protect our youth, the most common users of the products, from their dangerous effects. It was also important to me as a cutting-edge case with novel issues of law, where I needed to convey the science of analogues in a convincing, straightforward way to the jury.

SR International Business Insurance Co. Ltd. v. World Trade Center Properties, LLC, et al. – 01 Civ. 9291 (MBM) (S.D.N.Y.)  The Port Authority of New York and New Jersey leased commercial space in the World Trade Center properties in July 2001 to several Silverstein parties and Westfield WTC LLC for a term of 99 years. Pursuant to those leases, the tenants purchased $3.55 billion “per occurrence” property insurance from multiple insurers. After the tragic events of 9/11, parties filed claims and counterclaims as to whether the two-plane terrorist attack on the World Trade Center was one or two occurrences under the terms of insurance binders.  I was one of two associates in the New York office assisting Mr. Rosen, our Los Angeles- based partner whose client was a party in the litigation. Another partner in the Los Angeles office assisted in the matter. Too many opposing counsel for the multiple insurers to list here, but Simpson, Thatcher & Bartlett LLP represented lead defendant Swiss Reinsurance.  While our client resolved its interests, several parties went to trial before Hon. Michael Mukasey, United States District Court for the Southern District of New York. In two trials, the juries found one occurrence as to some insurers, and two occurrences as to others.  Setting aside the wealth of experience I obtained working this case, this case had a negative impact on me, as I found it disappointing that all parties were unable to resolve the case short of trial. As a New York City resident at the time, the terrorist attacks literally hit home for me. Fortunately, my former wife and I were on our honeymoon, and our out-of- town wedding guests safe. A bit too close for comfort, some of them had departed the night before 9/11. The events of 9/11 reconfirmed my desire to return to public service.  This case impacted me because of the considerable value of pragmatic settlement efforts, as reflected by our client resolving its interests. But the opportunity for all parties to resolve the matter fairly and quickly was lost. The city, and the nation, needed to heal. It was counterproductive to spend an enormous amount of money on this litigation, with dozens of lawyers attending each deposition, and countless filings of pleadings and motions. It would have been more sensible, both from a cost-analysis and public-relations standpoint, for everyone to settle close to one-and-a-half occurrences, which, in so doing, would demonstrate a unified commitment to the rebuilding of New York and the World Trade Center. Instead, the litigation dragged on for years at tremendous cost, and the juries reached verdicts that could have been negotiated through pragmatic settlement efforts.

Application Deadline: 5:00 p.m. May 19, 2017 20 21. Do you now serve or have you previously served as a mediator, an arbitrator, a part-time or full-time judicial officer, or a quasi-judicial officer? To the extent possible, explain each experience.

I am not permitted to do so as part of my current employment.

22. Describe any pro bono or public interest work as an attorney.

I am not permitted to do so as part of my current employment.

23. List all bar associations and professional societies of which you are or have been a member. Give titles and dates of offices held. List chairs or committees in such groups you believe to be of significance. Exclude information regarding your political affiliation.

 Washoe County Bar Association – Member  Nevada Bar, Public Interest Section – Member  Nevada Bar, Transitioning Into Practice: A Mentoring Program for Nevada Attorneys  Nevada Federal District Court Conferences – Participant  Association of the Bar of the City of New York Fund, Inc. (City Bar Fund) – Former Member

24. List all courses, seminars, or institutes you have attended relating to continuing legal education during the past 5 years. Are you in compliance with the continuing legal education requirements applicable to you as a lawyer or judge?

 Attendee, Federal District Court Conference, Reno, Nevada (2008 – 16) (even years)  Instructor, Basic Criminal Trial Advocacy, National Advocacy Center (NAC) (2012 – 17)  Lecturer, Advanced Narcotics and Synthetic Narcotics Seminars, NAC (2015, 2016)  Instructor, Grand Jury Presentations and Demonstrations, NAC (2016)

In addition, I have completed the following courses:

National Security Information December 2016 Video Course Awareness and Refresher Training Office of Legal Education Faculty October 2016 Seminar Development Workshop for Trial Advocacy Faculty Government Ethics September 2016 Video Course Criminal Discovery Refresher: August 2016 Video Course E-Communications Featuring Social Media in Criminal Cases Advanced Narcotics Seminar July 2016 Seminar Evaluation and Review Staff March 2016 Seminar (EARS) Experienced Evaluator Training National Security Information December 2015 Video Course Awareness and Refresher Training Criminal Discovery Refresher: December 2015 Video Course Brady Materiality

Application Deadline: 5:00 p.m. May 19, 2017 21 Criminal Discovery for Experienced September 2015 Seminar Prosecutors Synthetics Narcotics Seminar February 2015 Seminar A Prosecutor’s Guide to the December 2014 Video Course Amended Giglio Policy Criminal Discovery Refresher: December 2014 Video Course Electronically Stored Information and Rule 16 Criminal Discovery Refresher: December 2014 Video Course Brady and Guilty Pleas National Security Information December 2014 Video Course Awareness and Refresher Training Smart on Crime Conference May 2014 Seminar Evidence for Experienced Criminal April 2014 Seminar Litigators Seminar` Pardon the Ethics Interruption November 2013 Video Course American Ethics Idol December 2012 Video Course Advanced Money Laundering September 2012 Seminar Seminar Advanced Narcotics Seminar September 2012 Seminar Advanced Mortgage Fraud Seminar April 2012 Seminar

I am in compliance.

25. Do you have Professional Liability Insurance or do you work for a governmental agency?

I work for a governmental agency and I have professional liability insurance.

Business and Occupational Experience

26. Have you ever been engaged in any occupation, business, or profession other than a judicial officer or the practice of law? If yes, please list, including the dates of your involvement with the occupation, business, or profession.

No.

27. Do you currently serve or have you in the past served as a manager, officer, or director of any business enterprise, including a law practice? If so, please provide details as to: a. the nature of the business, b. the nature of your duties, c. the extent of your involvement in the administration or management of the business, d. the terms of your service, e. the percentage of your ownership.

Neither have I served, nor do I currently serve, in any such capacity.

Application Deadline: 5:00 p.m. May 19, 2017 22

28. List experience as an executor, trustee, or in any other fiduciary capacity. Give name, address, position title, nature of your duties, terms of service and, if any, the percentage of your ownership.

No such experience.

Civic, Professional and Community Involvement

29. Have you ever held an elective or appointive public office in this or any other state? Have you been a candidate for such an office? If so, give details, including the offices involved, whether initially appointed or elected, and the length of service. Exclude political affiliation.

No. I am not permitted to run for a partisan public office position as part of my employment.

30. State significant activities in which you have taken part, giving dates and offices or leadership positions.

Washoe County Bar Association Member (2017 – present) Nevada Bar Public Interest Section Member (2017 – present) Transitioning Into Practice: A Applicant-Mentor (2017) Mentoring Program for Nevada Attorneys Big Brothers Big Sisters Volunteer / Contributor (2017; 2011-12) National Heroin/Opioid Point of Contact, (2016 – present) Epidemic Initiative District of Nevada National Advocacy Center, Faculty Instructor, (2012 – present) Columbia, South Carolina Group Leader, Lecturer Northern Sierra Endurance Training Member / Volunteer (2011 – present) Group Sierra Nevada Soccer Association Participant (2010 – present) Arrowcreek Community Member (2014 – 15) Board of Trustees Communications Subcommittee United States Attorney’s Office, Discovery Committee (2014 – 15) District of Nevada United States Attorney’s Office, Hiring Committee (2013 – 15) District of Nevada Sparks American Youth Soccer Board of Directors; (2009 – 11) Organization (AYSO) Referee Director Comstock Shootout Referee (2009 – 10) Soccer Tournament Sparks AYSO Referee (2007 – 11) United States Attorney’s Office, Hiring Committee (2006 – 07) Northern District of California

Application Deadline: 5:00 p.m. May 19, 2017 23

31. Describe any courses taught at law schools or continuing education programs. Describe any lectures delivered at bar association conferences.

Faculty Member: United States Department of Justice National Advocacy Center  Basic Criminal Trial Advocacy - Group Leader / Rotating Instructor (2012 – 17) o Presenter: Handling Accomplice Witnesses o Presenter: Exhibits, Demonstrative Aids, and Evidentiary Foundations o Presenter: Voir Dire and Jury Selection  Justice Television Network (2015 – 17) o Prosecuting Synthetic Narcotics Cases o Exhibits, Demonstrative Aids, and Evidentiary Foundations  Advanced Narcotics Seminar (2016) o Science in Synthetic Drug Cases  Grand Jury Practice (2016) o Grand Jury Presentations and Demonstrations  Synthetic Narcotics Seminar (2015) o Expert Testimony at Trial, Daubert, and Analogue Scienter Issues

Law Enforcement Agency Training  How to Do Title III Wiretaps – Department of Homeland Security (Las Vegas, 2016)  Search and Seizure Law – Nevada Department of Public Safety Training Division Academy Class # 67 (Carson City, 2013)  Fourth Amendment Review – The Bureau of Land Management – Burning Man (Gerlock, 2010)

High Intensity Drug Trafficking Area Summits  Speaker: Federal Case Law Update: Butane Hash Oil and Analogue Cases (Reno, 2015)  Speaker: Federal Prosecution of Synthetic Drugs (Las Vegas, 2013)

Intra-Office Training  Presenter: Exhibits, Demonstrative Aids, and Evidentiary Foundations (2016)  Presenter: Organized Crime Drug Enforcement Task Force Executive Board (2008 – 16)

32. List educational, military service, service to your country, charitable, fraternal and church activities you deem significant. Indicate leadership positions.

 Member, St. Rose of Lima Catholic Church  Volunteer, Big Brothers, Big Sisters of Northern Nevada  Board Member, Sparks American Youth Soccer Organization  Referee Director, Sparks American Youth Soccer Organization  Contributor, SPCA of Northern Nevada  Faculty Instructor, United States Department of Justice, Office of Legal Education

Application Deadline: 5:00 p.m. May 19, 2017 24

33. List honors, prizes, awards, or other forms of recognition.

Executive Office of United States Office of the Attorney General, September 2014 Attorneys Director’s Award for Washington, D.C. Superior Performance as an Assistant United States Attorney National Association of Former Las Vegas, Nevada December 2014 United States Attorneys’ Exceptional Service Award Federal Bureau of Investigation Reno, Nevada May 2011 Certificate of Appreciation Internal Revenue Service Honorary Reno, Nevada March 2011 Special Agent Award Organized Crimes Drug Monterey, California April 2010 Enforcement Task Force Pacific Region Annual Award for Operation Chiva Kora Board of Directors, Sparks American Sparks, Nevada May 2009 Youth Soccer Organization Referee Director, American Youth Sparks, Nevada May 2009 Soccer Organization Federal Bureau of Investigation San Francisco, California May 2007 Certificate of Appreciation Outstanding Student Leadership Burlington, Vermont May 1993 Award, University of Vermont, Graduating Class of 1993 Commencement Ceremony Phi Beta Kappa Burlington, Vermont May 1993 President, Boulder Society Burlington, Vermont August 1992 Senator, University of Vermont Burlington, Vermont August 2992 Student Government Association New Jersey Boys State Delegate Cresskill, New Jersey August 2009

34. Have you at any time in the last 12 months belonged to, or do you currently belong to, any club or organization that in practice or policy restricts (or restricted during the time of your membership) its membership on the basis of race, religion, creed, national origin or sex? If so, detail the name and nature of the club(s) or organization(s), relevant policies and practices, and whether you intend to continue as a member if you are selected for this vacancy.

No.

Application Deadline: 5:00 p.m. May 19, 2017 25

35. List books, articles, speeches and public statements published, or examples of opinions rendered, with citations and dates.

 My “Prosecuting Synthetic Narcotics Cases” video was published on the United States Department of Justice’s Justice Television Network (May 2017).

 My “Exhibits, Demonstrative Aids, and Evidentiary Foundations” lecture was published on the United States Department of Justice’s Justice Television Network (May 2015).

36. During the past 10 years, have you been registered to vote? Have you voted in the general elections held in those years?

Yes and yes.

37. List avocational interests and hobbies.

 Avid alpine skier and ski instructor for my three-year old daughter.  Marathoner and, when time and training permit, ultra-marathoner.  Soccer goalkeeper.  American History enthusiast, with emphasis on the Revolutionary War.  Teaching.  Baseball enthusiast.

Conduct

38. Have you ever been convicted of or formally found to be in violation of federal, state or local law, ordinance or regulation? Provide details of circumstances, charges and dispositions.

No.

39. Have you ever been sanctioned, disciplined, reprimanded, found to have breached an ethics rule or to have acted unprofessionally by any judicial or bar association discipline commission, other professional organization or administrative body or military tribunal? If yes, explain. If the disciplinary action is confidential, please respond to question 71.

No.

40. Have you ever been dropped, suspended, disqualified, expelled, dismissed from, or placed on probation at any college, university, professional school or law school for any reason including scholastic, criminal, or moral? If yes, explain.

No.

41. Have you ever been refused admission to or been released from any of the armed services for reasons other than honorable discharge? If yes, explain.

No.

Application Deadline: 5:00 p.m. May 19, 2017 26

42. Has a lien ever been asserted against you or any property of yours that was not discharged within 30 days? If yes, explain.

No.

43. Has any Bankruptcy Court in a case where you are or were the debtor, entered an order providing a creditor automatic relief from the bankruptcy stay (providing in rem relief) in any present or future bankruptcy case, related to property in which you have an interest?

No. Other

44. If you have previously submitted a questionnaire or Application to this or any other judicial nominating commission, please provide the name of the commission, the approximate date(s) of submission, and the result.

On February 3, 2017, I submitted my application for the Department 8 vacancy in the Second

Judicial District to the Commission on Judicial Selection. I was honored to be one of the three finalists whose name was forwarded to Governor Sandoval. While ultimately not selected, going through the process reaffirmed by desire and commitment to serve the community as a member of our judiciary.

45. In no more than three pages (double spaced) attached to this Application, provide a statement describing what you believe sets you apart from your peers, and explains what particular education, experience, personality or character traits you possess or have acquired that you feel qualify you as a good district court judge. In so doing, address both the civil (including family law matters) and criminal processes (including criminal sentencing).

Please see “Statement” below.

46. Detail any further information relative to your judicial candidacy that you desire to call to the attention of the members of the Commission on Judicial Selection.

When I was a younger attorney, a federal judge asked me whether his decision to resign from the bench made sense in my humble view. I shared my impression that, akin to a prosecutor or criminal defense attorney, the work in the judiciary is predominantly reactionary, in that someone has already been injured or some conduct has already occurred. Indeed, the judiciary’s work is limited to cases and controversies, illustrating its reactionary focus. To legislate or govern, on the other hand, has a more prospective approach, and, in turn, can have a greater impact on our community overall. I could sense

His Honor’s desire to pursue his noble calling to serve the great State of Nevada in another setting.

Application Deadline: 5:00 p.m. May 19, 2017 27 While the judiciary remains focused on cases and controversies, my legal experience since that conversation has altered my views about the judiciary’s focus and its impact on the community.

First, principles of fairness, justice, integrity, and respect make up the bedrock of the judiciary’s proper functioning. In this branch of government, these core values are non-negotiable. If our confidence in the judiciary and the judicial system were to fail, it would be inconsequential what legislation is passed or implemented. The judiciary is the foundation of our system of government. Not to say it is more powerful, as all branches are equal to one another. But the judiciary is the shoulders on which our system of a government of law rests. Citizens go to court to resolve disputes and to find out what the law is. We do so because we have uncompromising trust and confidence in our judiciary and the judicial system.

While the judiciary limits its work to cases and controversies, its decisions may impact – and, at times, significantly impact – the community as a whole, both retroactively and prospectively. See, e.g.,

Brown v. Board of Education, 347 U.S. 483 (1954). Decisions and opinions rendered from the bench, even in what some may characterize as a typical case, affect our community prospectively. For motions to suppress in a criminal case, the court, significantly, determines whether law enforcement acted in compliance with an individual’s Constitutional rights. And in the event of a change of plea or conviction after trial, the court weighs the impact on our community a defendant’s sentence will have by affording adequate deterrence to others who might consider engaging in similar conduct, providing just punishment for the offense, promoting respect for the law to safeguard our community from future crimes, and rehabilitating the defendant to return to our community as a contributing member.

Thus, the adjudication of cases and controversies affects our community prospectively. Every case over which the court presides is as important as any other one; just ask the parties how the court’s judgment of their case will affect them. The judiciary’s essential role is the administration of justice in every case. It is with this mindset, appreciation, and respect that I apply to serve as a member of

Nevada’s judiciary.

Application Deadline: 5:00 p.m. May 19, 2017 28 47. Attach a sample of no more than 10 pages of your original writing in the form of a decision, “points and authorities,” or appellate brief generated within the past 5 years, which demonstrates your ability to write in a logical, cohesive, concise, organized, and persuasive fashion.

Attached is my response, in the form of a sur-reply given the circumstances of the case, to a defendant’s joinder to a motion to suppress. The Hon. Larry R. Hicks, Senior United States District

Judge, District of Nevada, issued a written opinion denying the motion on the briefs filed by the parties.

Application Deadline: 5:00 p.m. May 19, 2017 29 Case 3:15-cr-00064-LRH-WGC Document 98 Filed 11/10/16 Page 1 of 9

1 DANIEL G. BOGDEN United States Attorney 2 JAMES E. KELLER (NVSB 10636; NYSB 2893881) Assistant United States Attorney 3 100 West Liberty Street, Suite 600 Reno, Nevada 89501 4 Phone: (775) 784-5438 Facsimile: (775) 784-5181 5 [email protected]

6 Attorneys for United States of America

7 UNITED STATES DISTRICT COURT

8 DISTRICT OF NEVADA

9 UNITED STATES OF AMERICA, Case No. 3:15-CR-0064-LRH-WGC

10 Plaintiff, UNITED STATES’ SURREPLY TO DEFENDANT CABRERA’S REPLY [CR 97] 11 v. TO CODEFENDANT NAVARRO- SANCHEZ’S MOTION TO SUPPRESS 12 JOSE ISAIS CABRERA,

13 Defendant.

15 The United States of America, by and through DANIEL G. BOGDEN, United States Attorney

16 for the District of Nevada, and JAMES E. KELLER, Assistant United States Attorney, hereby responds

17 to defendant Cabrera’s [Court Record “CR” 97] reply to codefendant Navarro-Sanchez’s motion to

18 suppress [CR 36]. This response is timely pursuant to the Court’s Minute Order on October 30, 2016.

19 INTRODUCTION

20 To avoid duplication, the government incorporates by reference herein its initial response [CR

21 45] to the merits of motion submitted by Navarro-Sanchez [CR 36]. But the Court need not go to the

22 merits of Cabrera’s motion and should deny it on the papers, because, fatally, Cabrera has no standing to

23 contest a neutral and detached judge’s determination that there was probable cause for the issuance of a

1 Case 3:15-cr-00064-LRH-WGC Document 98 Filed 11/10/16 Page 2 of 9

1 state warrant for installation of tracking device on a vehicle that Cabrera had no ownership or possessory

2 interest, and in turn, defendant had no expectation of privacy. See Rakas v. Illinois, 439 U.S. 128 (1978).

3 ANALYSIS

4 I. CABRERA HAS NO EXPECTATION OF PRIVACY IN THE BLUE AUDI REGISTERED 5 TO A THIRD PERSON ON JUNE 23, 2015, THE DAY THE STATE COURT JUDGE DETERMINED PROBABLE CAUSE EXISTED FOR THE ISSUANCE OF A TRACKING 6 WARRANT, AND THUS HAS NO STANDING TO CONTEST THAT RULING

7 In his reply, CR 97 at 2-4, defendant Cabrera attacks the determination of probable cause in the

8 issuance of a state court warrant for the installation of a tracking device on a dark blue Audi bearing

9 Nevada license plate 16A-139 registered to Angelina Navarro, 8028 Anchor Point Drive, Reno, Nevada

10 89506, on June 23, 2015. The state court order and application in support appear in Exhibit 3 to the

11 government’s response to codefendant Emmanuel Navarro’s joinder in codefendant Navarro-Sanchez’s

12 motion to suppress. See Gov’t Resp. [CR 45] Ex. 3, at page 1, lines 21-22.

13 This Audi, however, belonged to and was registered to Angelina Navarro, 8028 Anchor Point

14 Drive, Reno, Nevada 89506, at the time of the state court’s issuance of the warrant. Id. Cabrera had no

15 ownership or possessory or privacy interest in the blue Audi on June 23, 2015, as the search warrant

16 issued by the state court judge refers to this vehicle as being registered to Angelia Navarro. Id. Angelina

17 Navarro is not the wife, or even related to, Cabrera.

18 Defendant Cabrera’s operation of someone else’s vehicle – the blue Audi – on I-80 at 4:45 a.m.

19 on July 4, 2015, when he had no valid license to do so, Gov’t Resp. [CR 45] Ex. 4 at ¶ 10, does not give

20 him an expectation of privacy as to the vehicle 21-days earlier. “A person who is aggrieved by an illegal

21 search and seizure only through the introduction of damaging evidence secured by a search of a third

22 person’s premises or property has not had any of his Fourth Amendment rights infringed.” United States

23 v. Pulliam, 405 F.3d 782, 785 (9th Cir. 2005) (quoting Rakas v. Illinois, 439 U.S. 128, 134) (emphasis

24 added). Indeed, “Fourth Amendment rights are personal rights which . . . may not be vicariously

2 Case 3:15-cr-00064-LRH-WGC Document 98 Filed 11/10/16 Page 3 of 9

1 asserted.” Rakas, 439 U.S. at 133-134 (citing Brown v. United States, 411 U.S. 223, 230 (1973); Simmons

2 v. United States, 390 U.S. 377, 389 (1968); Wong Sun v. United States, 371 U.S. 471, 492 (1963); cf.

3 Silverman v. United States, 365 U.S. 505, 511 (1961); Gouled v. United States, 255 U.S. 298, 304 (1921)).

4 Thus, being a charged co-conspirator does not impute Cabrera with any reasonable expectation of

5 privacy. See United States v. Padilla, 508 U.S. 77, 82 (1993). As the Supreme Court held in Padilla,

6 the defendant can urge the suppression of evidence only if the defendant “demonstrated that his Fourth

7 Amendment rights were violated.” Id.

8 Here, the blue Audi is not Cabrera’s car. The Audi was not registered to him. Gov’t Resp. [CR

9 45] Ex. 3. It was registered to Angelina Navarro. Cabrera does not have a relationship with its registered

10 owner, Angelina Navarro, like codefendants Navarro (paramour) and to a lesser extent Navarro-Sanchez

11 do. While Cabrera happened to be driving the vehicle on July 4, 2015, at 4:45 a.m., Cabrera in no way

12 was a regular user of that vehicle. By way of illustration, Cabrera did not use the blue Audi on June 23,

13 2015, during the observed drug transaction by investigators, nor was Cabrera mentioned in the

14 investigator’s application for the tracker warrant. See Gov’t Resp. [CR 45] Ex. 3.

15 Cabrera has no Fourth Amendment expectation of privacy in the blue Audi. Rakas, 439 U.S. at

16 133-134. In turn, he has no standing to contest the state court’s determination of probable cause to install

17 a tracker on it on June 23, 2015. Id. And in his reply he does not even assert that he has standing to

18 challenge the state court’s determination of probable cause on June 23, 2015, for the installation of a

19 tracking device on the blue Audi. See CR 97 at 2-4. The Court should deny Cabrera’s motion attacking

20 the state court’s determination of probable cause on the papers because he clearly has no standing to

21 assert a reasonable expectation of privacy in the blue Audi.

22 / / /

23 / / /

24 / / /

3 Case 3:15-cr-00064-LRH-WGC Document 98 Filed 11/10/16 Page 4 of 9

1 II. THE APPLICABLE STANDARD IS REASONABLE SUSPICION, NOT PROBABLE CAUSE FOR INVESTIGATIVE TRAFFIC STOPS UNDER CONTROLLING LAW. 2 HERE, THERE WAS REASONABLE SUSPICION, LEADING TO PROBABLE CAUSE, WHEN NO ONE IN THE CAR HAD A VALID DRIVER’S LICENSE AND A TIMELY 3 CANINE ALERT OCCURRED AS TO THE ODOR OF CONTROLLED SUBSTANCES

4 Cabrera’s second challenge to the search of the blue Audi relates to the search of the Audi when

5 Cabrera was operating it on July 4, 2015, at 4:45 a.m. See Reply [CR 97] at 4-6. Again, it is the

6 defendant’s burden to establish standing to move to suppress the search of the vehicle, which he is

7 contesting in his Reply at 4-6, purportedly in violation of his Fourth Amendment rights. Typically, an

8 individual who is using a vehicle but has no possessory interest in it will lack a legitimate expectation of

9 privacy in the vehicle. United States v. Almeida, 748 F.3d 41, 47-48 (1st Cir. 2014) (no legitimate

10 expectation of privacy in vehicle because, although the defendant had owner’s permission, he showed no

11 pattern of repeated use or control to provide possession was more than “informal and temporary.”)1

12 Here, Cabrera does not address standing in his Reply whatsoever. He fails to demonstrate a

13 reasonable expectation of privacy in a third person’s car that he was operating in the middle of the night

14 with other occupants in the vehicle when challenging the search of that vehicle. On that ground, the

15 Court should deny the motion.

16 Even if the defendant had standing to contest the traffic stop of the blue Audi Cabrera was

17 operating, he misstates the controlling standard that the Court must apply in determining whether a stop

18 was lawful. As the undersigned stated on the record at the status conference in this case on October 30,

19 2016, it is controlling Ninth Circuit law that the Fourth Amendment requires only reasonable suspicion

20 in the context of investigative traffic stops, not probable cause. United States v. Lopez-Soto, 205 F.3d

21 1 No bright-line rule determines whether a person has a reasonable expectation of privacy in a vehicle; 22 instead the court considers a number of factors ownership, possession, and/or control; historical use of the property searched or the thing seized; ability to regulate access; the totality of the surrounding 23 circumstances; the existence or nonexistence of a subjective anticipation of privacy; and the objective reasonableness of such an expectancy under the facts of a given case. We look, in short, to whether or 24 not the individual thought of the place (or the article) as a private one, and treated it as such. Id. at 47 (citing United States v. Aguirre, 839 F.2d 854, 856-57 (1st Cir. 1988) (additional citations omitted)). 4 Case 3:15-cr-00064-LRH-WGC Document 98 Filed 11/10/16 Page 5 of 9

1 1101, 1104 (9th Cir. 2000). The Court stated in Lopez-Soto, “[N]one of our sister circuits, either before

2 or after Whren [v. United States, 517 U.S. 806], has concluded that a traffic stop must be justified by

3 more than reasonable suspicion.” Id. “We join those circuits and reaffirm that the Fourth Amendment

4 requires only reasonable suspicion in the context of investigative traffic stops.” Id. at 1104-1105.

5 Thus, in the context of the traffic stop in the very early morning hours of July 4, 2015, “[t]o detain

6 a suspect, [the] police officer must have reasonable suspicion.” Lopez-Soto, 205 F.3d at 1104 (quoting

7 United States v. Michael R., 90 F.3d 340, 346 (9th Cir. 1996)). The facts set forth in the papers are not

8 in dispute and are recited for the most part on pages 2 to 5 in the Gov’t Resp. [CR 45], and further appear

9 in accompanying Exhibits 1 through 7 in support.

10 After investigators had received tracking information as to the travels and quick turnaround of

11 the blue Audi from California to Nevada on July 4, 2015, Task Force Officer (TFO) Josh Jenkins

12 observed the Audi traveling eastbound on I-80 near the California Agricultural Check Station. Id. TFO

13 Jenkins continued surveillance as the Audi passed the Floriston exit in California. Id. While following

14 the Audi, TFO Jenkins noticed the Audi’s approximate speed was below 65 mph, and, at times 15 mph

15 below the speed limit of 65.

16 TFO Ahdunko directed Sparks Police Department (SPD) Officer Bare and Washoe County

17 Sheriff’s Office (WCSO) Deputies Vanderwall and Bailey to initiate a stop on the Audi after the West

18 McCarran Blvd. Exit on I-80 in Nevada. Id. The reasonable suspicion for the stop was based upon the

19 methamphetamine transaction on June 2, 2015, in front of the Autozone involving the same Audi;

20 information provided to the CS by Guerra-Arellano as to Emmanuel Navarro being the “boss” who

21 delivered the methamphetamine in the Audi on June 2; the probable cause Order authorizing the GPS

22 tracking device to be installed and monitored on the Audi, GPS data for the tracking device on the Audi

23 revealing multiple stops in the Riverside area, which is known to be an area with significant drug

24 trafficking activity, the quick turnaround in travel time to and from Reno and Los Angeles which,

5 Case 3:15-cr-00064-LRH-WGC Document 98 Filed 11/10/16 Page 6 of 9

1 furthermore, had occurred in the early morning hours of July 4; and the slow speed of travel observed on

2 I-80, which under the totality of circumstances and in the investigator’s training and experience, appeared

3 to be a “drug run.”

4 The Ninth Circuit has stated, “Conduct innocent in the eyes of the untrained may carry entirely

5 different ‘messages; to the experienced or trained observer.’” United States v. Bernard, 623 F.2d 551,

6 560 (9th Cir. 1979) (quoting David v. United States, 409 F.2d 458, 460 (D.C. Cir.), cert. denied, 404,

7 U.S. 851 (1969)). An officer is entitled to rely on his training and experience in drawing inferences from

8 the facts he observes, but those inferences must also “be grounded in objective facts and be capable of

9 rational explanation.” Lopez-Soto, 205 F.3d 1 at 1105 (quoting Michael R., 90 F.3d at 346); see also

10 United States v. Sokolow, 490 U.S. 1, 7 (1989) (“The Fourth Amendment requires some minimal level

11 of objective justification for making the stop.” (internal quotations omitted)).

12 Armed with information obtained by the DEA investigators as to the vehicle’s use for drug

13 activity and quick travel to and from California and its unreasonably slow travel speed at 4:45 a.m. on

14 the July 4 holiday, Deputy Vanderwall conducted a traffic stop of the Audi and noticed open containers

15 of alcohol on the floor of the backseat area. See Gov’t Resp. [CR 45] Exhibit 4, ¶ 9. The open containers

16 heightened Deputy Vanderwall’s suspicion. Four individuals were in the Audi – defendant Cabrera was

17 the driver; codefendant Jaime Navarro-Sanchez, Cabrera’s father, and a female juvenile were its

18 passengers. Id. None of the occupants had a valid driver’s license. Id. ¶ 10.

19 By this point, with no one having a valid driver’s license, probable cause exists. Nonetheless,

20 SPD Officer Bare on scene deployed his canine trained and certified in the detection of the odor of

21 controlled substances on the exterior of the Audi. Officer Bare received a positive alert from his canine

22 as to the detection of the odor of controlled substances. Id. ¶ 11.

23 A search of the Audi revealed approximately 280 grams of cocaine inside a black duffel bag. Id.

24 ¶ 13. A Nevada identification card, with Cabrera’s picture and in the name of his alias, was also found

6 Case 3:15-cr-00064-LRH-WGC Document 98 Filed 11/10/16 Page 7 of 9

1 inside the duffel bag. The Audi was impounded to the DEA Reno office, given the location of drugs in

2 it and because no one in the vehicle had a valid driver’s license. Id. at ¶ 16.

3 Upon a secondary, inventory search of the Audi on July 8, 2015, DEA investigators located five

4 (5) pounds of methamphetamine, confirmed to be 98.3% pure and to contain 2,194 grams of pure

5 methamphetamine based upon subsequent laboratory analysis, from a natural void in the inside of the

6 rear tail light area of the Audi. See Gov’t Resp. [CR 45], Exhibit 5. Also located in the search of an

7 outer pocket of the duffel bag was $5,800 – not $12,7102 as initially referenced in CR 45. See Gov’t

8 Resp. Ex. 5 at 2, ¶¶ 5-6; at 3, ¶¶ 1-3.

9 Here, there was reasonable suspicion to conduct a traffic stop of the blue Audi under the totality

10 of circumstances, which led quickly to a heightened level of probable cause to conduct a search based

11 upon the open alcohol containers, the absence of a valid driver’s license, and the canine alert. It is

12 reasonable to infer that, after “the boss” used this vehicle to supply methamphetamine to a drug deal in

13 Nevada, and upon its quick turnaround to Nevada in the early morning hours of a holiday after making

14 brief stops in California, operated by this defendant at an unreasonably slow speed when suspected to be

15 followed by law enforcement, forms a basis for suspecting criminal activity under the totality of

16 circumstances. And, in any event, the defendant has failed to demonstrate he has a reasonable expectation

17 of privacy in a car that indisputably was not his, and thus his motion to suppress evidence seized from

18 the search of the vehicle should be denied without a hearing.

19 / / /

20 / / /

21 / / /

23 2 The $12,710 is an under-calculation of the money recovered from the vehicle. Cash in the amount of $11,490 was bundled in the trunk of the blue Audi; Exhibit 4 at 3, ¶ 13, while $5,800 was discovered in 24 a pocket of the backpack with the cocaine during an inventory search on July 8, 2015. See Exhibit 5 at 2, ¶ 5. The government apologizes for its mistake. 7 Case 3:15-cr-00064-LRH-WGC Document 98 Filed 11/10/16 Page 8 of 9

1 CONCLUSION

2 WHEREFORE, for the foregoing reasons, the Court should deny defendant Cabrera’s joinder in

3 codefendant Navarro-Sanchez’s motion to dismiss on the papers.

4 Dated this 10th day of November, 2016. Respectfully submitted,

5 DANIEL G. BOGDEN United States Attorney 6 __/s/ James E. Keller______7 JAMES E. KELLER Assistant United States Attorney 8

8 Case 3:15-cr-00064-LRH-WGC Document 98 Filed 11/10/16 Page 9 of 9

1 CERTIFICATE OF SERVICE

2 It is hereby certified that pursuant to LCR 47-11 service of the foregoing UNITED STATES’

3 SURREPLY TO DEFENDANT CABRERA’S REPLY TO CODEFENDANT NAVARRO-

4 SANCHEZ’S MOTION TO SUPPRESS was made through the Court’s electronic filing and notice

5 system (CM/ECF) or, as appropriate, by sending a copy of the same by electronic mail, addressed to the

6 following addresses:

7 BRET WHIPPLE, Esq. Justice Law Center 8 1100 South Tenth Street Las Vegas, Nevada 89104 9 [email protected] Counsel for Defendant Cabrera 10

11 Dated this 10th day of November, 2016.

13 __/s/ James E. Keller______JAMES E. KELLER 14

9 Statement

A federal prosecutor for 13 years, and city prosecutor in a demanding environment for close to

4, I have worked all types of criminal cases. I have handled attempted murders to death penalty cases and hand-to-hand drug sales to multi-pound wiretap narcotics investigations. I have been at the forefront of the federal prosecution of synthetic drug cases. I have prosecuted sexual assault cases, child exploitation cases, violent crimes, firearm possession and brandishing cases, and gang racketeering cases. I have investigated environmental crimes from vessels dumping in open seas to individuals mailing elephant ivory concealed in pottery. I have handled complex fraud and money laundering cases involving hundreds of victims and millions of dollars. I have managed public corruption investigations.

Routinely, I represented the state in courts with congested criminal dockets. More than once, I picked a jury for trial while another jury was deliberating on the evidence in my previous case. I have tried 34 criminal cases, 25 before juries. I have supervised colleagues as their second seat at trial. While, first and foremost, I am honored to have represented the United States and the State in seeking justice in those matters, I am also proud of the diversity and volume of the matters I have handled. My familiarity with all types of criminal cases serves me well in presiding over criminal cases and a criminal docket.

My civil experience is similarly extensive. As a general litigation associate from 2001 to 2004 in the 17th largest law firm, Mayer Brown LLP, I worked extensively on the complex property and liability insurance litigation arising out of the tragic events of 9/11 by drafting complaints, covering and coordinating the defense of depositions, writing briefs, and researching complex liability issues. In addition, on behalf of multiple clients, I brought and defended many state court actions. I also assisted with the internal investigation of a client’s activities as to possible Foreign Corrupt Practices Act exposure. I co-authored a Supreme Court brief on an inadvertently suggestive lineup in a pro bono matter. I fought and successfully obtained political asylum for a Liberian client in another.

Prior to my tenure at Mayer Brown LLP, I was a summer associate with an employment discrimination/labor law firm where I drafted a Supreme Court amicus curiae brief interpreting Title

Application Deadline: 5:00 p.m. May 19, 2017 30 VII’s anti-retaliatory provision and legal memoranda for clients with various labor disputes. I was employed as a law clerk for a prominent District of Columbia firm in my third year of law school, analyzing insurance litigation issues and summarizing recent court decisions for the insurance law group.

My years of civil practice have prepared me well to adjudicate civil matters as a district court judge.

I taught, and continue to teach, new federal prosecutors how to conduct all aspects of trials, with hands-on demonstrations of coherent opening statements, admitting and using exhibits effectively, and persuasive closing arguments. I educate them on voir dire and jury selection, the rules of evidence and fundamental evidentiary foundations, handling accomplice witnesses, and using demonstrative aids at trial. I also lecture about issues arising in synthetic drug prosecutions at advanced narcotics courses for experienced federal prosecutors. I have instructed the cadets of the Nevada Department of Public Safety on search and seizure law, and agents of the Department of Homeland Security on how to conduct Title

III wiretaps. A mastery of trial practice and procedure, the rules of evidence, and, at least for criminal actions, search and seizure law is a must for a district court judge.

A diverse background in civil practice and criminal justice, extensive trial work, and years of courtroom advocacy all make me a well-rounded applicant for this position. Experience matters, and I have some of the best of it in the civil arena, in criminal law, and before the courts. In the courtroom, I have witnessed, and practiced, principles of fairness, integrity, and respect. These qualities bring honor to the Court and instill sanctity in the courtroom. I apply these bedrock qualities whenever I serve as a judge for Basic Criminal Trial Advocacy Course at the United States Department of Justice National

Advocacy Center. My familiarity with courts and appreciation of the judicial temperament of the many judges before whom I have had the honor to appear will serve me well.

In addition, in my years of service as a prosecutor, I am called upon regularly to exercise good judgment. I must weigh factors fairly and impartially at various stages of the criminal process in the pursuit of justice. Decisions on what charges to seek and what sentencing recommendations to make are comparable to the considerations a judge weighs in adjudicating criminal cases and imposing sentences.

Application Deadline: 5:00 p.m. May 19, 2017 31 It is neither about the severity of the offense, nor how much jail time that matters: it is about seeking justice. It seems only yesterday when I handled a knife-point robbery where I learned, only through diligence and by keeping an open mind, that the witness intentionally misidentified the assailant.

To convey the important message to remain vigilant in the pursuit of justice, I always discuss this experience in my “Handling an Accomplice Witness” class at the National Advocacy Center.

Justice is as much about seeking convictions against the guilty as it is about exonerating the innocent. My commitment to seek justice and my everyday balancing of relevant factors as a federal and state prosecutor will serve me well in adjudicating cases and controversies fairly, justly, and with integrity and respect for all parties.

Finally, I am happily married to a native Nevadan and alumna of Reno High School and the

University of Nevada Reno, and take pride in seeing our beautiful three-year old daughter grow up in our community with her friends and cousins. I am delighted to call Reno home for life.

Application Deadline: 5:00 p.m. May 19, 2017 32