Feds asked to produce all information on fruit bat poaching activities on Rota

THE requested discovery is material and critical to the defense in the Mariana fruit bat poaching case involving a former Fish and Wildlife staffer and a Customs officer.

In his reply to the government’s opposition to specific discovery requests he made, co-defendant Albert Taitno, through his counsel Bruce Berline, asked the federal court to order the government to provide all information in its possession, custody or control regarding Mariana fruit bat poaching activities on Rota.

The production of such information, the defense believes, is material as it will allow the defense to effectively rebut the expert testimony and to effectively cross-examine the government’s experts on the procedures and methodology of the tests conducted.

Taitano earlier filed a motion for discovery asking full disclosure of all information available to the government that show taking of the Mariana fruit bat by persons other than Taitano and his co-defendant David Santos.

Taitano asked the government to disclose (a) any reports of scientific tests or experiments, and results in the government’s possession, custody or control; (b) a written summary of any testimony that the government intends to use under Rules 702, 703, or 705 of the Federal Rules of Evidence during its case-in-chief at trial; (c) un-redacted copies of all books, papers, documents, data, photographs, tangible objects or portions of any of these items that was in any way relied upon by any expert witness that the government intends to use in its case-in-chief; (d) un-redacted copies of the laboratory case file for any scientific test or experiment that is material to preparing the defense of that the government intends to use; (e) all relevant laboratory protocols for any scientific test or experiment that is material to preparing the defense or that the government intends to use; (f) results of any relevant proficiency testing performed by any analyst who performed any scientific test or experiment that is material to preparing the defense or that the government intends to use; and (g) un-redacted copies of any audits, external or internal, for any laboratory that performed any scientific test or experiment material to preparing the defense or that the government intends to use.

Taitano’s motion for discovery was prompted by the release of a list of 108 suspected fruit bat poachers compiled in 1998 and updated in 2008. The defense noted that the list had been redacted showing only three names: Adrian Mendiola, David A. Santos and Albert Taitano.

For the defense, there is ample evidence indicating the possibility that people other than the defendants poached fruit bats on Rota. As there were no witnesses, the government’s case is based upon circumstantial evidence.

Berline said the government objected to discovery request contained in (c), (e), (f) and (g) because defendant failed to show that the requested evidence was material under Rule 16.

He said information is material if it “consists of, or would lead directly to, evidence admissible at trial.”

Berline argued that the requested information is directly material to the defense.

He said what Taitano is requesting is documentation behind any testing that the government will use in its case-in-chief.

“Defendant believes that such requests would apply to any expert testing done to identify the genuses of the bats, and the testing done to match the shotgun shells with the firearms,” said Berline.

He said that no one saw anyone shoot bats and the government’s case depends upon expert testimony to prove that the bats allegedly taken were Pteropus Mariannus (Mariana fruit bat) and the empty shotgun shells allegedly found on Rota’s roosting site were from certain firearms.

Moreover, Berline also said that a Daubert hearing is necessary in this case citing the revision to the Association of Firearm and Toolmark examiners.

For the defense, there is a need to evaluate government expert Michael Scanlan, his methodology and his proficiency under Daubert standards as conducted under the new AFTE standard.

He also refutes the government’s claim that the law of case doctrine is applicable because “it is an entirely new matter to which the law of the case doctrine does not apply.”

He said that this new case against Taitano and Santos “has less parties, different charges, different witnesses — it is a different matter.”

Taitano, along with Santos, were indicted by a grand jury for conspiracy and taking Mariana fruit bats from the Rota roost site in 2008. The case was dismissed without prejudice due to an evidentiary issue at trial.

Four years later, a new indictment was filed under seal on Sept. 24, 2012, alleging that Santos and Taitano, along with others, hunted the Mariana fruit bats at the Sumac roost site using 12 gauge and .410 gauge shotguns, including a .410 gauge Mossberg shotgun and a .410 gauge Remington shotgun.