Case 2:16-cr-00082-TS-RTB Document 488 Filed 08/19/16 Page 1 of 6

KATHRYN N. NESTER, Federal Public Defender (#13967)

ROBERT K. HUNT, Assistant Federal Public Defender (#5722)
KRISTEN R. ANGELOS, Assistant Federal Public Defender (#8314)
FEDERAL PUBLIC DEFENDER
DISTRICT OF UTAH
Attorneys for Defendant
46 West Broadway, Suite 110
Salt Lake City, Utah 84101
Telephone: (801) 524-4010
Fax: (801) 524-4060
________________________________________________________________________
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, CENTRAL DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

DEFENDANT LYLE JEFFS

MOTION FOR STATUS
CONFERENCE

vs.

Case No. 2:16-cr-00082 TS-1

LYLE STEED JEFFS,

Defendant.

COMES NOW Defendant Lyle Jeffs, by and through his undersigned counsel, and files this
his Motion for a Status Conference and in support thereof would offer the following to this
Honorable Court:
1. The trial date in this matter is currently scheduled for October 3, 2016.
2. As of this date, several of the Defendants have filed motions seeking to continue the
trial. Two of the defendants remain detained and face hearings challenging their
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detention on August 22, 2016, before this Court. They and all other Defendants have
until that date to file any motions for continuance as well.
3. On July 12, 2016, Defendants filed several dispositive and non-dispositive motions,
including a Motion to Dismiss on First Amendment grounds. On August 11, 2016, the
Government filed Responses to Defendants motions, including the Motion to Dismiss.
On August 17, 2016, this Court granted the Defendants request for an Evidentiary
Hearing on their Motion to Dismiss Indictment and scheduled the hearing for September
6, 2016, at 9:00 a.m.
4. The Governments Response to the Motion to Dismiss attached multiple Declarations
from fact witnesses and included documentary evidence as well. The Governments
Response also made clear that they would be relying on at least two expert witnesses to
support their arguments in opposition to the Defendants Motion to Dismiss and they
provided a new Declaration from one of the experts. The Declarations of fact witnesses
attached to the Government motions were also based on new interviews and contained
new information not contained in their previous statements already disclosed to defense
counsel.
5. In order to support their arguments in favor of dismissal, the Defendants will likewise
rely on fact witnesses, expert witnesses and documentary exhibits and are working to
finalize those witnesses and exhibits as quickly as possible so as to provide that
information to the Government in advance of the hearing. It is likely that many of the
Defendants may take the stand themselves in order to establish their sincere religious
beliefs, a necessary underpinning to their First Amendment claims.
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6. As an update to the Court, defense counsel believes the Court should know that the
universe of witnesses and documentary evidence continues to grow since we last
appeared in Court on June 9th. Since that time the Government has disclosed five (5)
more batches of discovery on July 19, July 27, August 1, August 4 and August 10. At
least some of those disclosures are in direct response to specific requests of Defendants
addressed in joint meetings and in motions to compel and are therefore appreciated by
defense counsel. The disclosures received on August 1, contain many hours of tape
recordings surreptitiously recorded during private church meetings as far back as 2011.
It appears that at least one member of the United Order who was attending the meetings
was wearing a recording device, unknown to the members around him or her. More than
one conversation on the tapes contains exculpatory evidence that would assist
Defendants at their Motion to Dismiss evidentiary hearing as well as their trial.
Defense counsels brief review of the tapes so far has also revealed secretly recorded
sermons and discussions with church leaders that bear directly on the issue of the sincere
religious beliefs of Defendants. Regretfully, these new disclosures were not
accompanied by documents that explained the source of these recordings, why they
were made, and under what circumstances, investigations or court authority this
government surveillance was conducted. It is troubling to defense counsel that the
Government has selectively pulled just a portion of what was clearly an ongoing, related
investigation to disclose in this case. While we appreciate their attempt to spot
Brady/Giglio material and disclose it, we respectfully submit that doing so in a vacuum
makes it impossible for defense counsel to fully investigate and litigate these facts and
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chills their ability either to impeach the veracity of the Government informants or to
convince the Court that the evidence is reliable.
7. At least one attorney representing a Defendant has been advised by a case agent that
there are also two thumb drives seized at the time of arrest of one of the Defendants that
are in the process of being put into digital format and will shortly be disclosed to
Defendants. These thumb drives allegedly have relevant and material evidence
relating to the issues that will be testified to at the evidentiary hearing.
8. The likely testimony of Defendants at the evidentiary hearing and the sheer numbers and
nature of witnesses and exhibits that are continuing to be disclosed create some very
unique challenges for all trial counsel in this case, who would benefit greatly from some
guidance from the Court. The specific issues that we are requesting an opportunity to
address with the Court prior to the evidentiary hearing include the following:
a. Is the Government entitled to cross-examine Defendants at the hearing or can
their testimony be submitted in proffer form?
b. If cross-examination is allowed, then what limits will be placed on the scope of
the cross-examination? Unlike your typical suppression hearing, where Courts
often limit the scope of cross-examination of Defendants to the issues of the
search only, the unusual facts in this case will result in some overlap between the
pretrial issues and the ultimate issues of fact in the guilt/innocence phase. If clear
and strict limits are not agreed upon or ordered by the Court prior to the hearing,
there will be a great deal of interruptions in the evidentiary hearing as the parties
tiptoe through the Fifth Amendment minefield. Because the evidentiary
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hearing will involve experts travelling from far distances, it is in the best interest
of judicial economy to resolve these matters prior to the hearing itself.
Furthermore, without some guidance from the Court in advance on these
matters, defense counsel will not be able to provide effective advice and counsel
to their clients regarding the risks and rewards they will face if they elect to
testify on their own behalf.
c. Regarding the recently disclosed recordings that are discussed in paragraph 6
above, the parties need to discuss the introduction of those recordings and
whether transcripts can be prepared and agreed to by all parties before
proceeding, so that we can avoid interruptions challenging the accuracy of
transcripts during the evidentiary hearing. Furthermore we need to discuss
whether the Government should be required to disclose the investigative
documents that place these recordings in context so that defense counsel will
have an opportunity to prepare reliable rebuttals and/or introductions of said
recordings in their defense.
d. How does the Court prefer we handle exhibits (especially prior witness
statements) introduced during the hearing? Will they require sponsoring
witnesses or may we proceed as a typical motion hearing and simply proffer the
exhibits, even if they are witness statements?
e. If the thumb drives are in the process of being disclosed, when will the
Government be in a position to make those disclosures, how much data is
involved and how much time will defense counsel need to absorb it and select
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any portions thereof that should be used in support of their argument at the
evidentiary hearing?
f. The expected length of the hearing needs to be discussed as well. At least four
expert witnesses are expected to testify (one on each side for Department of
Agriculture regulations and at least one on each side relating to religion and
religious practices), the Government has identified at least seven fact witnesses
likely to testify, and Defendants also expect to have a number of fact witnesses.
Adding argument and questions of the Court into the mix, it seems highly
unlikely we can complete this hearing in one or even two days.
WHEREFORE, PREMISES CONSIDERED, Defendants respectfully request this Court
consider changing the evidentiary hearing currently scheduled for September 6th to a status
conference where all counsel can appear and discuss the above-stated issues with the Court and
any other matters that will assist this Court prior to the hearing.

RESPECTFULLY SUBMITTED this 19th day of August, 2016.

/s/ Kathryn N. Nester

Kathryn N. Nester
Federal Public Defender, District of Utah
Attorney for Lyle Jeffs