Carothers files rebuttal to Moultrie's response and makes it a ballgame!

If law is a sport, welcome to the Super Bowl with Freeland v Rideout shooting word-filled cannons down field like they were Manning and Farve.

Rideout held Team Moultie scoreless in the first quarter and Moultie came back in the second.

The score was even at the half.

While the “devil is in the details,” Carothers and Moultrie apparently agree that the correct statement of the test to be applied by the court is that quoted by Carothers in its original Memo and likewise quoted in full by Moultrie in his Memo. As stated by the Court in United States v. Ball:

[I]n order for the court to authorize Rule 17(c) subpoena, the moving party must be able to describe specific documents, or, at least specific kinds of documents. [cit.] Moreover, the moving party must specify why the materials are wanted, what information is contained in the documents, and why those documents would be relevant and admissible at trial. (citations omitted). Without detailed information on the requested documents, a court is only left ‘to speculate as to the specific nature of their contents and relevance.’ (citing United States v. Arditti, 955 F2d 331, 346 (5th Cir. 1992) (emphasis added)

With the butt-kicking rebuttal filed today, Rideout has pulled Team Carothers so far ahead in the third, it’s going to be hard for Moultrie to catch up.

Carothers contends that Moultrie has not met the Ball-Arditti standard because the Court is left “to speculate as to the specific nature of their [the subpoenaed documents] contents and relevance” and admissibility. This is the dispute for the court to resolve on this motion to quash.

Rideout brings Team Carothers back on field and, before the first play, reminds Team Moultrie they’re playing defense.

Moultrie’s, who has the burden of proof on this motion, has however neither described the documents he wants with the requisite specificity, nor has he demonstrated their relevance and/or admissibility with the requisite specificity.

No huddle for the first play – just a straight shot.

Juxtaposing Moultrie’s demands against those in one of the cases which Moultrie cited as supporting his position clearly illustrates this point.

With first down and goal to go, he makes the call

Now bear in mind that the two count indictment charges:
1, That the defendants conspired to make a political contribution to a public official to influence him in connection with the beef plant project; and,
2. The defendants engaged in a scheme to defraud the backers of the beef plant project by disguising inter-company profits which were not allowed under its project management contract.

And, then, touchdown!

Suffice it to say simply that Moultrie’s reply fails to demonstrate the level of specificity necessary for the Court to make a determination as to relevance and admissibility except on the basis of speculation which fails to pass muster.

Team Carothers intercepts and scores again with Rideout throwing a long pass that says Moultrie was out of bounds on the response to Team Carothers’ call of ex parte :

…the Court is reminded of the case law cited in Carothers original memo holding that the Government has no standing to object to the issuance of a Rule 17(c) subpoena to a third party. Carothers contend that based on this case law the matter was ex parte and should that be the wrong term, that Carothers was nevertheless entitled to prior notice of the motion and an opportunity to object.

Rideout moves down the field again, this time tacking Team Moultrie on Admission of Hearsay Under Rule 803(6) and makes one first down after another…

Moultrie argues the records are admissible under 803(6) as business records citing a number of cases for the proposition that “[t]here is no requirement…that the witness laying the foundation be the one who [created the document] or be able to attest personally to its accuracy.” Nevertheless, someone must vouch for the document’s trustworthiness to make it admissible under 803(6). (emphasis mine)

…and scores another touchdown with

Even though the burden of proof is on him on this motion, Moultrie is unwilling to vouch for the trustworthiness of the documents he seeks (and no one else has). (emphasis mine) Therefore, the 803(6) exception to the hearsay rule has not been met and Moultrie has failed to prove admissibility on this ground.

Team Carothers goes for two with Admission of Hearsay Under Rule 807.

In the alternative Moultrie argues the documents would be admissible under the residual exception to the hearsay rule. This rule is of no help to Moultrie either. Rule 807requires “circumstantial guarantees of trustworthiness, equivalent to those established under the other hearsay exceptions.” Cook v. Miss. Dept of Human Serv, 108 Fed Appx. 852, 856 (5th Cir. 2004).

Makes it and Rideout keeps the offense rolling setting up another score when he calls Proof of Bias Is Not Collateral.

Rule 608(b) does not prevent the impeachment of a witness on a collateral matter. It simply prevents the impeachment of the witness on a collateral matter with extrinsic evidence.

Therefore, the records sought are not admissible and the Rule 17(c) subpoena fails.

Team Moultrie, according to Rideout, punted on the Issue of Specificity . Carothers recovers; scores again; and then goes in with a play that may very well put the ball game out of reach for Team Moultrie.

Much of Moultrie’s reply is couched in hyperbole which court’s recognize is not legal argument, obscures the real issues, and “is a sure sign of a weak argument.”
Carothers argument is variously described by Moultrie as “baseless efforts, “disingenuous in the extreme,” “defies logic,” and should be “rejected out of hand.”

Such ad hominems are uniformly dismissed with the conclusion that the fact-finder “has the common sense to discount hyperbole of an advocate, discounting the force of the argument.”

Surely, Moultrie is not suggesting that materiality is not an issue under 17(c). Clearly, immaterial evidence is not admissible and therefore the evidence has not met the Rule 17(c) requirements which includes a showing of admissibility… (emphasis mine)

…Saying that something is a fact does not ipse dixit make it a fact – even if you say it a lot. In this case Mr. Moultrie has in many different ways and many different times said to the court that the multitude of documents which he has subpoenaed are both relevant and admissible…
This is not enough to pass muster and the motion to quash should therefore be granted.

Team Carothers filed another motion today- one that suggests this Rebuttal represents only a portion of the motion they are prepared to enter. Look for an exciting fourth quarter and during the timeout, take time to read the play-by-play of the rebuttal that hit the field today.

3 thoughts on “Carothers files rebuttal to Moultrie's response and makes it a ballgame!”

  1. thanks nodowit, great reporting.

    Cant get the Atlanta newspapers to print anything. They have been dropped form 1) Walton Count PM, 2) two DTAE CM projects worth $42 million together, 3) $55 million Chatham County Detention Center and the 4) Madison County, NC Jail

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