As we mentioned, in mid-December, 2009, Danny was again sentenced to two life terms and immediately filed a Notice of Appeal. He had also asked the judge if he could serve the sentence on weekends, and be granted bail pending appeal. Both (perfectly reasonable) requests were denied.
Because Danny had life sentences, the 9th Circuit required that an attorney do the “direct” appeal. Jonathan Libby entered the picture, the Appellate Dream Team rolled into one. In 2012 he was the attorney who convinced the Supreme Court to throw out the “Stolen Valor Law,” as violative of the free speech clause of the Constitution. Libby immediately was put on Danny’s appeal by Sean Kennedy. However, because the case was so complex (the trial court file had over 900 documents in it, and there were dozens of hearings on the hundreds of motions Danny has filed since his December, 2003 arrest), it took more than two years for the opening brief to be prepared and filed. Opening briefs in criminal appeals have a 14,000 word limit, but Danny’s was almost 20,000, and the 9th Circuit allowed the outsize document to be filed. Several more extensions of time were allowed, both to the government (who initially tried, unsuccessfully, to file an even larger opposing brief) and then to Libby, for the reply brief. The appeal is presently set for oral argument on January 9, 2013.
Danny has been keeping busy the last three years, spending seven days a week in the prison’s law library. He has filed dozens of Freedom of Information requests, seeking documents to use in Trial III. He continues to file motions with the trial judge, who denies 90% of them. He takes a new, separate appeal of every order denying a motion. All of those “little” appeals will be heard along with the main appeal. He has also been preparing motions to be heard before Trial III, more than 150, to date. In the brief filed by Libby, the 9th Circuit has been asked to assign the case to a different judge for Trial III.
The first two trials were each over in a week. The cross examination of the government’s witnesses was limited, because the defense only received about 20 of the 173 Operation Dequiallo reports, and those were all heavily redacted. Mike Kramer made at least 113 recordings, some of them audio-visual recordings filmed through a camera lens-button on an ATF-provided cowboy shirt. The defense was only given parts of about 10 of the recordings. Both Danny and attorney Sean Kennedy filed numerous motions asking the judge to order the government to provide the full set of reports and all of the recordings. Each time, the government told the judge that they had “…fully complied with our discovery obligations,” and they had determined that none of the documents and recordings requested were relevant. And that was good enough for the judge.
The 173 Dequiallo reports dealt solely with Kramer’s more than two years of ATF employment. Other sets of ATF reports were prepared in connection with the Arizona Black Biscuit and Laughlin, Nevada casino shooting investigations. The judges in the Arizona and Nevada cases ordered the government to provide every defendant in those cases with copies of all Operation Dequiallo, Black Biscuit and casino shooting reports, and an unknown number of the 113 Operation Dequiallo recordings. Both judges felt that due process required the disclosure of full sets of all ATF reports and many of the recordings. Unfortunately, Danny did not get copies of everything until after he had been convicted in Trial II.
Strangely missing from all those reports and other Operation Dequiallo documents is any mention of the United States Attorney’s office authorizing Mike Kramer to carry a gun. During Trial II, as we saw, John Ciccone testified that he had obtained this authorization from Los Angeles Assistant U.S. Attorney Rod Castro-Silva, the overseer of Operation Dequiallo. Numerous Freedom of Information requests have (so far) failed to uncover any such documents. This subject will be raised during Trial III, and Mr. Castro-Silva’s answers will be interesting.
Danny wants to demonstrate the obvious: the expenditure of tens of millions of dollars with very little to show for it, in terms of what might be called law enforcement product, such as convictions, and total years of imprisonment for heinous specimens. It was worthwhile to the federal government to excuse a murderer, in order to convict Danny and Rachel, and maybe drive a motorcycle club or two into partial dysfunction. He wants a jury to see that he is a scapegoat and a symbol, embodying the ATF’s last hope of somehow justifying the waste of so many millions. The kind of things they’ve been doing with him and other motorcycle enthusiasts are part of a bad behavior pattern that led to the incredible Operation Fast and Furious mess. He wants to remind you that, while he serves the life sentence that rightfully belongs to double murderer Kramer, the very same Kramer might be competing with you for a space in Walmart’s parking lot. Or living next door, and eyeing your daughter.
For the rare person who might not know it, many tourists buy garments imprinted with “My folks went to Paris, and all I got was this lousy t-shirt” or the local equivalent. The ATF ran its “operations” to Arizona and California and a bunch of other locations. Pretty much all they got for their effort were some Mongol t-shirts. And Rachel and Danny.
Fast and Furious, and Fabricant 