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DISTRICT COURT, EL PASO COUNTY, COLORADO

Court Address: 270 S. Tejon Street Colorado Springs, CO 80901

Court Phone: (719) 452-5000

▲ COURT USE ONLY ▲_______________________________

Case Number:

Division: 5

THE PEOPLE OF THE STATE OF COLORADO

v.

JUAN SANTOS SAN AGUSTIN, Defendant.

Attorneys for Defendant: Iris Eytan, #29505 Dru Nielsen, #28775 Tiffany Drahota, #42868 Eytan Nielsen LLC 3200 Cherry Creek South Drive, Suite 720 Denver, CO 80209 Telephone: (720) 440-8155 Facsimile: (720) 440-8156 Email: iris@eytan-nielsen.com dru@eytan-nielsen.com

tiffany@eytan-nielsen.com

* REDACTED *MOTION FOR PRODUCTION OF GRAND JURY COLLOQUY DUE TO

PROSECUTORIAL MISCONDUCT [D-8]

Mr. San Agustin, through counsel, moves for an order releasing the colloquy between theprosecution and the Grand Jury in this case, as a result of the prosecutor’s misconduct.

INTRODUCTION

Mr. San Agustin was indicted for kidnapping and false imprisonment on the premise that on September 12, 2013 he was in a second floor conference room at the El Paso County Sheriff’s Office (“EPSCO”) watching EPCSO Detective Kaiser’s interview of Kelli Trull1, with six other officials, including his Bureau Chief Al Harmon, his Commander Mitch Lincoln, EPCSO sergeants and deputies, and Chief Deputy District Attorney Shannon Gerhart. According to the Indictment, at the conclusion of the Trull Interview, despite these six other officials in the conference room, Mr. San Agustin followed the orders of Mr. Maketa and Ms. Presley and roguely

1 Ms. Kelli Trull, is now Ms. Kelli McMahon, but this motion refers to her as Ms. Kelli Trull.

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usurped his Bureau Chief, Commander and Chief DDA Gerhart, and ordered that Ms. Trull be arrested for Harassment and Driving Under the Influence. The Indictment alleges that Mr. San Agustin’s order to arrest Ms. Trull was made with criminal knowledge that there was no probable cause to arrest Ms. Trull, making the arrest unlawful.

There are gaping holes in the prosecution’s Indictment of Mr. San Agustin: First, there was absolutely no evidence presented to the Grand Jury (or in the discovery) that an order was delivered or that Mr. San Agustin received an order from Mr. Maketa and Ms. Presley to arrest Ms. Trull. Most importantly, Mr. San Agustin was not in the building when Chief DDA Gerhart was leading the charge with at least five other EPSCO officials to arrest Ms. Trull. The prosecution had knowledge of both of these facts but deliberately withheld this evidence from the Grand Jury in order to unlawfully indict Mr. San Agustin on salacious sounding offenses.

Mr. San Agustin is the one who has been falsely accused, wrongly indicted, and publicly humiliated, not Ms. Trull. This occurred due to the prosecutors, investigators, and witnesses’ bias and ulterior motives to malign Mr. San Agustin because he would not cooperate with prosecutors in the grand jury process and made his opinion public regarding the Tom Clements’ assassination investigation. Those who were actually responsible for ordering Ms. Trull’s arrest were fearful they would be indicted and deflected all responsibility for Ms. Trull’s arrest from themselves creating a “Who me?” finger-pointing scenario. The prosecutor’s misconduct warrants the release of the colloquy.

I. FACTUAL HISTORY

On September 12, 2013, Ms. Kelly Trull went to the El Paso County Sheriff’s Office to tell Detective Lisa Kaiser2 that she lied approximately one month earlier when she accused her boyfriend, former EPCSO Deputy Travis Garretson, of physically assaulting her.3 Upon her arrival at EPCSO, Ms. Trull was escorted to the second-floor investigation room by Detective Kaiser. (Disco. 11698-11801). Just prior to the commencement of the interview, Sergeant Jaworski called El Paso County Chief Deputy District Attorney Shannon Gerhart, and other

2 Detective Lisa Kaiser changed her name to Lisa Montville as is indicated in her grand jury testimony. However, she will be referred to as Detective Kaiser in this motion.

3 The Indictment alleges that one or both of the co-defendants directed Ms. Trull to go to EPCSO investigators on September 12, 2013 and tell the truth -- that she instigated the fight and was the aggressor. One or both of the co-defendants is alleged to have told Ms. Trull to explain to EPCSO investigators that Ms. Habert, her boss and friend, told her to lie to Detective Kaiser and say that former Deputy Garretson was the initial aggressor in order to avoid being arrested. One or both of the co-defendants are alleged to have assured Ms. Trull that she would not be arrested for telling the truth. There is no grand jury testimony that Mr. San Agustin was involved in these conversations between Mr. Maketa, Ms. Presley and Ms. Trull. In fact, there was no evidence of any communications between Mr. San Agustin and Mr. Maketa and/or Ms. Presley. The only evidence presented to the Grand Jury about communications between Mr. San Agustin and Mr. Maketa and Ms. Presley was a single, general, anecdotal comment made by Mr. Harmon’s that he believed that Mr. Maketa and Ms. Presley would go around Mr. Harmon and directly give orders to Mr. San Agustin. (Indictment, p.6)

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EPCSO command staff, to watch Ms. Trull’s interview in a nearby conference room on the second floor to determine whether there was probable cause to arrest Ms. Trull.

Disco. 697). Throughout the interview, Ms. Trull admitted to driving drunk and physically assaulting former Deputy Garretson, forcing him to defend himself against her. (Disco. Audio 26-3).

At 9:49 a.m., Detective Kaiser stepped out of the interview and met with EPCSO command staff and Chief DDA Gerhart to determine whether there was probable cause to arrest Ms. Trull (hereinafter “Trull Arrest Conference”). During the Trull Arrest Conference, Chief DDA Gerhart suggested that there was probable cause to arrest Ms. Trull for Harassment and Driving Under the Influence, the very charges Ms. Trull ultimately ended up being charged with. (Disco. 697). Notably, the person alleged by the prosecution to have given the order to arrest Ms. Trull during the Trull Arrest Conference, EPCSO Inspector San Agustin, was not present at the Trull Arrest Conference. (See Exhibit 1, Disco. Report 91-4). Mr. San Agustin was not even in the building. (Id.) However, in addition to Chief DDA Gerhart, at least five members of the EPCSO were present at the Trull Arrest Conference, two of whom were Mr. San Agustin’s superiors:

1. Chief Deputy District Attorney Gerhart (Disco. Report 73-2)2. Bureau Chief Al Harmon (Exhibit 1, ) 3. Commander Mitch Lincoln (Disco. 18415; Exhibit 1)4. Sergeant Scott Deno (Disco. Supp 21-1)5. Lieutenant Robert Jaworski (Exhibit 1; 16) 6. Detective Lisa Kaiser (Exhibit 1; Disco. Audio 26-3).

The hard, irrefutable evidence, which was never disclosed to the Grand Jury, shows the following timeline of events:4

6:54 a.m. Detective Kaiser arrives on Investigations Floor (2nd Floor) 7:17 a.m. Sergeant Jaworski arrives on Investigations Floor (2nd Floor) 8:11 a.m. Inspector San Agustin arrives on Investigations Floor (2nd Floor) 8:19 a.m. Commander Lincoln arrives on Investigations Floor (2nd Floor) Pre-9:20a.m. Sergeant Jaworski calls Chief DDA Gerhart to watch the Trull interview Pre-9:20 a.m. Chief DDA Gerhart arrives to watch the interview on Investigations Floor (2nd

Floor), and watches entire interview 9:20 a.m. Detective Kaiser brings Ms. Trull onto Investigations Floor (2nd Floor) 9:22 a.m. Detective Kaiser commences Trull Interview on Investigations Floor (2nd

Floor) 9:30 a.m. Inspector San Agustin leaves the Investigations Floor (2nd Floor) 9:32 a.m. Inspector San Agustin departs building from the parking garage 9:34 a.m. Bureau Chief Harmon, who offices on the 5th floor, descends to the

Investigations Floor (2nd Floor)

4 See Exhibit 2, Demonstrative.

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9:49 a.m. Detective Kaiser tells Ms. Trull she must “talk to her boss” 9:49 a.m. Trull Arrest Conference: Six officials including: Chief DDA Gerhart, Chief

Harmon, Commander Lincoln, Sergeant Deno, Sergeant Jaworski, and Detective Kaiser discussed and determined whether probable cause exists to arrest Ms. Trull, and recommend Ms. Trull be arrested for Harassment and DUI.

9:57 a.m. Sheriff Maketa and Undersheriff Presley arrive to EPCSO through the 3rd floor 9:58 a.m. Detective Kaiser notifies Ms. Trull she is being arrested for Harassment and

DUI 9:59 a.m. Sheriff Maketa and Undersheriff Presley ascend to their offices on the 5th floor 10:14 a.m. Bureau Chief Harmon returns to his office on the 5th floor

II. THE PROSECUTION’S FAILURE TO PRESENT COMPLETE, TRUTHFULTESTIMONY TO THE GRAND JURY PROVIDES MUCH MORE THAN ASPECULATIVE BASIS FOR PRODUCTION OF THE COLLOQUY INORDER TO CHALLENGE MR. SAN AGUSTIN’S INDICTMENT.

1. In contrast to the prosecution’s representation to the Court, case law makes it clearthat a Motion for Colloquy is timely filed prior to the court’s review of whether there is probable cause to indict a defendant, which is prior to trial. People v. District Court for the Second Judicial District, 610 P.2d 490, 493-494 (Colo. 1980).

2. Additionally, Colorado Revised Statutes Section 16-5-204(4)(n) provides:“[M]otions testing the validity of the indictment may be heard by the court based only on the record and argument of counsel, unless there is cause shown for the need for additional evidence.” “Record,” as construed in C.R.S. §16-5-204(4)(n), does not “include a transcript of the portions of the grand jury proceedings that involved colloquy between the district attorney and the grand jury.” People v. District Court for the Second Judicial District, 610 P.2d 490, 493 (Colo. 1980).

3. However, when the defense makes a showing of materiality to the preparation ofits defense before the trial, the court may disclose colloquy to the Defendant. Id.

4. Additionally, the colloquy is material to overturning the Indictment when theprosecution commits misconduct during Grand Jury proceedings. “Prosecutorial misconduct during grand jury proceedings can result in dismissal if actual prejudice accrues to the defendant or the misconduct compromises the structural integrity of the grand jury proceedings to such a degree as to allow for the presumption of prejudice.” People v. Bergen, 883 P.2d 532, 543 (Colo. App. 1994);5 People v. Rickard, 761 P.2d 188 (Colo.1988).

5 Mr. San Agustin’s case is distinguishable from Bergen because although the District Attorney’s in Bergen engaged in improper conduct, that improper conduct was far outweighed by “the strength of the evidence which was properly presented” to the Grand Jury. In other words, there was overwhelming evidence to indict Mr. Bergen. However, in Mr. San Agustin’s case, the Grand Jury testimony is devoid of any evidence that Mr. San Agustin committed any crime or was complicit to any crimes. See Bergen at 543. (“The trial court reviewed the materials submitted in support

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5. People v. Dist. Court is clear that “only in those cases where clear examples ofinappropriate conduct by the district attorney may affect the validity of the defendant’s indictment or the determination of probable cause, should the trial court sacrifice the confidentiality of the grand jury proceedings and release a transcript of the grand jury colloquy to defense counsel.” Id. at 493-94. In other words, “the rule to show cause is made absolute.” Id. at 494.

6. The Courts have delineated two primary actions where, if taken by the prosecution,could result in the dismissal of an Indictment: Where the prosecution invades the Grand Jury’s independent deliberative process, and where the prosecution improperly summarizes or presents untruthful evidence. See, e.g., United States v. Bertolotti, 529 F.2d 149, 159 (2nd Cir. 1975); United States v. McDowell, 888 F.2d 285, 289 (3rd Cir. 1989).

7. Because the “presentation of evidence is under prosecutorial control,” the GrandJury “generally agrees to the actions of the Prosecutor.” Losavio v. Kikel, 529 P.2d 306, 308 (Colo. 1974). A Grand Jury cannot perform its job of “weighing any accusation of criminal activity to determine whether it [is] true or false” when presented with incomplete or untruthful evidence by the District Attorney. “The Grand Jury’s independent judgment is compromised when the prosecutor’s misconduct invades the Grand Jury’s independent deliberative process and substantially affects its decision to indict.” United States v. Hillman, 642 F.3d 929, 934 (10th Cir. 2011) (citing United States v. Sigma Int’l, Inc., 244 F.3d 841, 856 (11th Cir 2001) (“So, too, would we dismiss an Indictment that was issued by a ‘kangaroo Grand Jury’ – one whose deliberations were so overborne by a prosecutor or judge that the Indictment was, in effect, the prosecutor or judge’s handiwork, and not the result of a considered judgment by an independently functioning Grand Jury.”); c.f. United States v. Williams, 504 U.S. 36, 49 (1992) (“[T]he Fifth Amendment’s constitutional guarantee presupposes an investigative body acting independently of either the prosecuting attorney of judge.”); United States v. Hogan, 712 F.2d 757, 759 (2d Cir. 1983) (Finding the prosecutor “has ethical obligation strictly to observe the status of the Grand Jury as an independent legal body” and, “as an officer of the court is sworn to ensure that justice is done, not simply to obtain an Indictment”).

8. Additionally, since the accused is unable to defend himself in a Grand Juryproceeding, the prosecutor has a duty “to refrain from improper methods calculated to produce a wrong conviction . . . .”. Wilson v. People, 743 P.2d 415, 418 (Colo. 1987) (quoting Berger v. United States, 295 U.S. 78, 88 (1935)). The prosecutor, “while free to strike hard blows, ‘is not at liberty to strike foul ones.’” Id.

of, and in opposition to, defendant's motion to dismiss the Indictment for prosecutorial misconduct and found that, no matter what the prosecuting attorneys had done during the unrecorded proceedings or the off the record meetings, no reasonable Grand Jury could have failed to return an Indictment based upon the evidence which was presented during the recorded proceedings.”) Where, as in this case, there is prosecutorial misconduct coupled with a lack of evidence to support an Indictment, the Indictment should be dismissed.

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9. Therefore, the “State may not knowingly use false evidence, including falsetestimony, to obtain a tainted conviction . . . .” Napue v. People, 360 U.S. 264, 269 (1959). “[A] conviction obtained through false testimony violates due process where [the] prosecutor . . . allows it to go uncorrected when it appears.” People v. Terry, 720 P.2d 125, 130 (Colo. 1986) (citing Napue v. People, 360 U.S. 264, 269 (1959)). If errors are more significant than technical or procedural, and in fact, threaten a defendant’s right to fundamental fairness in the criminal process, the Court may dismiss an Indictment. United States v. Kilpatrick, 821 F.2d 1456 (10th Cir. 1987).

10. The colloquy will further substantiate the argument herein that Mr. San Agustin’sIndictment should be dismissed as the Indictment was obtained unfairly, with the use of false evidence.

A. Mr. San Agustin Was Falsely Indicted Even Though the Prosecution Knew, andWithheld Evidence, That He Was Not Present at the Trull Interview or Trull ArrestConference.

11. Similar to every single EPCSO employee, Mr. San Agustin’s ID badge containedan electronic card reader, which tracked his whereabouts in the EPCSO building and parking garage. (Exhibit 1). The electronic card reader data obtained by the prosecution shows that Mr. San Agustin left the second floor of the EPCSO (location of Trull interview and Arrest Conference) at 9:30 a.m., just eight minutes into Ms. Trull’s interview, and exited the parking garage at 9:32 a.m. (Id.) Mr. San Agustin did not return to the EPCSO that day. (Id.) Detective Kaiserinterviewed Ms. Trull until 9:49 a.m. (Disco. Audio 26-3). At 9:49 a.m., Detective Kaiser left theinterview room and joined the Bureau Chief, DDA, Commander, Sergeants and Deputies in theConference room, until 9:58 a.m. wherein some or all of them determined Ms. Trull should bearrested. (Id.) At 9:58 a.m., Detective Kaiser went back to the interview room and informed Ms.Trull she was being arrested for Harassment and Driving Under the Influence. (Id.).

12. There is no evidence that the prosecution presented the Grand Jury with testimonyor exhibits that contained the card reader documentation. Rather, it appears that the prosecution intentionally waited to obtain the card reader data with respect to EPCSO employees involved in the Trull Arrest Conference, despite obtaining the card reader data on October 3, 2014, when the investigators were in the thick of this investigation, for other charges related to the Maketa/Presley Indictments (the Elder File allegations). (Disco. Report 91-5). In fact, the prosecution waited until May 19, 2016, the day after the last day the Grand Jury was presented testimony, to physically obtain the electronic card readers data of some of the EPCSO employees involved in the September 12, 2012 Trull Arrest Conference. (Exhibit 1).

13. Despite the prosecution having these electronic card readers in its constructivepossession since the inception of their investigation which commenced in 2014, and in its actual possession six (6) days prior to the Grand Jury signing the True Bill on May 25, 2016, the

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prosecution did nothing to provide the Grand Jury the irrefutable evidence of Mr. San Agustin’s card reader data (that it relied on for other charges) that proved that Mr. San Agustin was not present in the building during the Trull Arrest Conference.

14. Intentionally withholding this information from the Grand Jury, and failing toapprise the Grand Jury of the information it learned vis-à-vis the electronic card readers is only one of many grounds evidencing inappropriate conduct by the prosecution causing Mr. San Agustin’s unlawful Indictment for felonious Kidnapping and False Imprisonment. This conduct supports the defense’s request for the colloquy between the prosecution and the Grand Jury in this case.

B. The Prosecution Strategically Called Biased Witnesses and Limited Their Testimony toIncomplete or False Facts in Order to Obtain a Tainted Indictment of Mr. San Agustin

15. During the , the prosecution only called six officials who were in the Trull Arrest Conference: Detective Lisa (Kaiser) Montville, , Sergeant Jaworski and Chief Harmon. (Indictment, p.6).

a. Detective Kaiser:

i. Detective Kaiser testified on . (Indictment, p. 6).

ii.

iii. with the statement she provided to CBI investigators on September 15, 2014, in where she stated that her direct supervisor in 2012, Sergeant Jaworski, came to her cube early in the morning and told her Ms. Trull was coming in for a second interview. (Disco. 18156, Disco. Audio 24-2). And, “the decision to arrest Trull came from her chain of command to include Chief District Attorney Shannon Gerhart from the 4th Judicial District Attorney’s Officer (the wife of EPCSO Sergeant Emory Gerhart) was

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present and observed the interview from the conference room.” (Disco. 18156-18157).

iv. When asked by CBI agents if “[Chief DDA] Shannon Gerhart is callingthe shots,” Detective Kaiser agreed. According to Detective Kaiser,Chief DDA Gerhart was giving legal advice and when it was determinedto charge Ms. Trull with Harassment and DUI, Chief DDA Gerhartresponded, “Okay, sounds good.” (Disco. Audio 24-2).

v. Detective Kaiser stated “I know she [Chief DDA Gerhart] observed myinterview, and was in the conference room discussing what she [Trull]would be charged with.” “Shannon Gerhart, Jaworski was there, butother supervisors were there, there’s always, there’s gawkers, couldhave been anyone in there.” (Id. at approximately 1:18 p.m.). In theSeptember 15, 2014 two-hour and twelve-minute interview, DetectiveKaiser says absolutely nothing about Mr. San Agustin participating inthe decision to arrest Ms. Trull.

b. DDA Gerhart:

i.

ii. Conspicuously absent fromof her prior statements in her tape-recorded

interview with CBI Agent Martinez, on March 17, 2016, when ChiefDDA Gerhart told CBI Agent Martinez that she advised the individualsin the Trull Arrest Conference that she believed EPCSO had probablecause to arrest Ms. Trull for Harassment and DUI. (Disco. Report 73-2, p. 22-24).

iii. Although the prosecution had this tape-recorded interview prior to

of Chief DDA Gerhart’s earlier professional determination that there was

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probable cause to arrest Ms. Trull. (Disco. 697). c. Robert Jaworski:

i. Jaworski6 testified on . (Indictment, p. 6). He stated that Inspector San Agustin was in the Trull Arrest Conference and made the decision to arrest her. (Indictment, p. 6; ).

ii. Again, the prosecution failed to correct testimony they knew was untrue.

In addition to the card readers, the prosecution had Jaworski’s March 10, 2016 recorded interview with CBI Agents Shierkolk and Martinez wherein Jaworski stated numerous times that he did not remember anything about Ms. Trull’s interview or the Trull Arrest Conference on September 12, 2013. (Disco. 19347). In fact, Jaworski told CBI Agents Shierkolk and Martinez that it was too long ago, and he did not even remember being there, let alone who else was watching the interview (Disco. 18347-18349). Yet, just two months later, the prosecution called Jaworski to testify under oath on the basis of this “I don’t remember interview,” which completely lacks any evidentiary value. But, miraculously, and with no interceding interview with law enforcement, by the time the Grand Jury is convened Jaworski has a clear detailed memory about what happened during the Trull Arrest Conference. In front of the Grand Jury, Mr. Jaworski testified that not only was he at the Trull Arrest Conference,

and that Mr. San Agustin gave the order to arrest. (Indictment, p. 6). The prosecution knowingly used Jaworski’s false and misleading testimony to wrongly indict Mr. San Agustin.

. iii. The prosecution also that just six (6) days

prior to testifying before the Grand Jury, Jaworski “retired” from EPCSO in order to avoid facing disciplinary proceedings for publicly calling the President of the United States the “N” word. (See Exhibit 3, The Gazette, El Paso County Sheriff: Racial Slur Led to Lieutenant’s Retirement, May 23, 2016).

6 Mr. Jaworski’s rank changed from Sergeant to Lieutenant between 2012 and 2016, and he retired from the EPSCO on or around May 6, 2016. For purpose of this paragraph the motion will refer to him as Jaworski.

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(Id. at p.25).

iv. that Jaworski was not fond of Mr. San Agustin, and had previously called Mr. San Agustin many racially biased slurs including “Gook.”

d. Bureau Chief Al Harmon:

i. Chief Harmon testified on . (Indictment, p. 6). ChiefHarmon was the Bureau Chief for the EPCSO and was Mr. SanAgustin’s Bureau Chief.

ii.

The card reader data proves that Chief Harmon watched the Trull interview and was present for the entire Trull Arrest Conference,

(and other official’s memory) that he was present at the Trull Arrest Conference. (See Exhibit 1).

16.

Commander Lincoln, who was Mr. San Agustin’s direct supervisor, was interviewed on March 24,

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2016, and recalled being present during Trull interview and Trull Arrest Conference. (Disco. 18413-178416). Notably, Commander Lincoln did not recall Mr. San Agustin being present at the Trull Arrest Conference. Commander Lincoln’s presence at the Trull interview and Trull Arrest Conference is confirmed by the card reader data. Similarly, the truthfulness of Commander Lincoln’s statements that Mr. San Agustin was not present during the interview or arrest is also confirmed by the card reader data.

17. Sergeant Deno previously admitted to being present during the Trull interview andTrull Arrest Conference, an admission which is supported by the card reader data. Sergeant Deno gave prior witness interviews stating that he did not remember Mr. San Agustin being at the interview or arrest,

(Disco. Supp 21-1).

18. On May 12, 2016, Mr. San Agustin was subpoenaed to testify before the GrandJury on May 18, 2016. (Disco. 25138-25140). After served with the subpoena and prior to May 18, 2016, Mr. San Agustin’s lawyer, , notified the prosecution that Mr. San Agustin was not present at the Trull interview or Trull Arrest Conference.7 Mr. San Agustin’s lawyer also informed the prosecution that Mr. San Agustin never received, or knew of, any order to arrest Ms. Trull. Realizing that Mr. San Agustin’s testimony would damage the prosecution’s presentation of false information, and with the intent to indict at least Mr. Maketa and Ms. Presley, the prosecution called off Mr. San Agustin’s grand jury subpoena at the last minute.

C. The Prosecution Presented False Evidence that Ms. Trull Was Arrested WithoutProbable Cause

19.

Ms. Trull has been all over the board providing different versions of an incident she experienced with Mr. Garretson to various officials. And, almost every version she claims she changed the prior version due to being coerced by either her boss, Ms. Habert, or by Undersheriff Paula Presley. However, her very first version, provided to Chief Briester was given before she spoke with Ms. Habert or Ms. Presley, and provided probable cause to arrest her.

20. Ms. Trull gave three interviews regarding the domestic dispute between her andformer Deputy Garretson:

a. First, Bureau Chief Joe Briester interviewed Ms. Trull on August 13, 2013.Chief Briester was the Chief of the Detentions Bureau (boss of the El PasoCounty Detention Center) where Ms. Trull was employed. Chief Briester was

7 See Exhibit 4, .

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also Mr. San Agustin’s superior. During Ms. Trull’s first interview with Chief Briester, with Ms. Wendy Habert (Ms. Trull’s supervisor and friend) observing, regarding the August 12, 2013 incident, Ms. Trull admitted to being “equally responsible for initiating arguments and fights with Deputy Garretson…which always occurred after their excessive consumption of alcohol.” (Disco. 11755).

b. Later that same day, Ms. Habert drove Ms. Trull to the EPCSO where she wouldprovide her second interview to Detective Lisa Kaiser. While driving to theEPCSO, Ms. Habert told Ms. Trull to leave out important parts of theinvestigation when being formally interviewed. (Disco. 11790). Ms. Trullreports that Ms. Habert advised Ms. Trull to avoid admitting to being theinstigator, or that she ever hit Mr. Garretson or struck him. As a result, whenDetective Kaiser interviewed Ms. Trull at the EPCSO for her second interview,Ms. Trull denied being the initial aggressor during her fights with formerDeputy Garretson, which was in direct contrast to what Ms. Trull told ChiefBriester earlier in the day.

c. Then, on September 12, 2013, Ms. Trull gave a third interview. At thatinterview, Ms. Trull once again reiterated what she told Chief Briester, that shewas the physical aggressor, and this time Ms. Trull said it was Ms. Habert whoadvised her to avoid taking responsibility in her prior interview with DetectiveKaiser in order to avoid arrest.

d. And, on September 10, 2014, in an interview with CBI Agents Slater and Watts,Ms. Trull claims for the first time that she was lying when she said that Ms.Habert told her to lie, and that it was Undersheriff Presley that coerced her intoclaiming Ms. Habert told her to lie. (Disco. 18199).

21. , the two conflicting interviews that Detective Kaiser conducted, one on August 13, 2013 and one on September 12, 2013. with Ms. Trull where she admitted criminal culpability prior to speaking with Ms. Habert or allegedly any of the co-defendants in this case.

22.

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.

23. that Ms. Trull’s third version

was very similar to her first version where she admitted to physically assaulting her boyfriend more than a month prior to allegedly speaking with the co-defendants in this case. (Disco. 11755).

24. The prosecution knew that Ms. Trull, prior to speaking to anyone indicted in thiscase and on her own volition, admitted to committing crimes that would cause any other person to be arrested. On May 25, 2016, just after Mr. San Agustin and the co-defendants were indicted, CBI Agent Gagliardi spoke with Ms. Presley and recorded the conversation. (Disc. 18712-18933). During Agent Gagliardi’s conversation with Ms. Presley, Agent Gagliardi admits to Ms. Presley that Ms. Trull’s initial statement to Chief Briester, where she takes responsibility for her criminal acts, was similar to the third Trull interview. According to Agent Gagliardi:

. . . I reviewed both Kellie’s [Trull’s] statements---or three of them. She interviewed with Chief Joe Briester then. And then she went down and talked to---here at the Office of the Sheriff. That is when Travis was arrested . . .Her story didn’t change much from that to what she told Joe Briester. She was trying to take some responsibility like—in other words, indicating she was kind of the instigator or she might have instigated it, that kind of thing. And, that held true to the ---last interview when she was arrested---said the same thing, except now she’s talking heavily about Wendy [Habert] because you told her to talk about Wendy. That’s the information we have. (Disc. 18813, p. 12:16-13:4)

25.

26. Not only was Ms. Trull arrested with the authority of a Chief Deputy DistrictAttorney and with probable cause,

Yet,

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somehow Mr. San Agustin, who was not present when the command staff agreed to arrest Ms. Trull, was indicted for a complicitious act of Kidnapping and False Imprisonment.

27. The colloquy may clear up how this preposterous Indictment against Mr. SanAgustin occurred.

D. The Prosecution Was Motivated to Falsely Implicate Mr. San Agustin to Impair HisCredibility Regarding the Clements Investigation

28. Initially, Mr. San Agustin was not the subject or target of CBI’s 2014 investigationinto Mr. Maketa and Ms. Presley. During the time that Mr. Maketa and Ms. Presley were being investigated, Mr. San Agustin supervised the investigation of the assassination of Tom Clements, the Executive Director of Colorado Department of Corrections. Multiple agencies, including CBI, Arapahoe County District Attorney’s Office, specifically Assistant DA Mark Hurlbert, FBI (Assistant-Agent-in-Charge Mike Rankin), Dan May, District Attorney for El Paso County, were involved and assisted in the Clements assassination investigation.

29. The US Attorney, FBI, CBI, and current prosecutors became at odds with Mr. SanAgustin when Mr. San Agustin’s investigation revealed that Mr. Clements’ murder was not the result of one man acting alone, but instead a conspiracy by the 211 Crew, a very dangerous gang. As a result of Mr. San Agustin’s investigation, multiple individuals linked to the assassination were sought to be arrested sometime in late 2013 and early 2014. However, without reason, DA Dan May refused to pursue charges of the individuals involved in the Clements Assassination.8 Frustrated that the truth was being covered up, Mr. San Agustin voluntarily left EPCSO in October of 2014.

30. In mid-2014, when Mr. Maketa was the Elected El Paso County Sheriff, DA DanMay, requested the assistance of CBI to investigate into Mr. Maketa’s alleged criminal conduct. As a result, CBI worked to push out Mr. Maketa and Ms. Presley, who supported and believed Mr. San Agustin’s analysis that more than one individual was involved in the Clements assassination. The Clements investigation was put on hold until a new Sheriff could be instated. Currently, the investigation is overseen by EPCSO Sheriff Bill Elder.

31. In March of 2016, The Denver Post began reporting on the status of the Clementsinvestigation and quoted Mr. San Agustin and his opinion that Mr. Clements was not killed by one man, but that the murder was the result of a conspiracy involving a gang called the 211 crew. (See Exhibit 5, March 16, 2016, Denver Post, “New Details Emerge Three Years After Murder of Colorado Prisons Chief.”). Mr. San Agustin’s opinion, which contradicted CBI and local

8 May 2013, Texas Ranger’s James Holland 77-page report, documenting what Colorado officials have not acknowledged ““The murder of the Colorado Department of Corrections director was ordered by hierarchy of the 211 prison crew.”

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prosecutor’s steadfast opinions that the Clements murder was a one-man job, called CBI’s investigation (or lack thereof) into question. Over the next two months, The Post published additional articles and editorials questioning the failure to investigate the Clements murder and questioning CBI and law enforcement’s theory that Mr. Clements’ murder was the result of one man.

32. Recently, Sheriff Elder has called to close the investigation giving no credence toMr. San Agustin’s investigation.

33. Sheriff Elder, CBI and local prosecutors wanted Mr. San Agustin to be discreditedand silenced so that the case can be closed on the theory that this was a one-man murder.

III. CONCLUSION

The Grand Jury was not informed of the truth about Mr. San Agustin’s lack of involvement throughout the investigation and arrest of Ms. Trull, as demonstrated by the electronic card readers, and the fact that probable cause existed to arrest Ms. Trull as determined by a Chief Deputy Attorney at the El Paso County District Attorney’s Office. Keeping this material evidence from the Grand Jury, in order to have an innocent man wrongly indicted, gives rise and justifiable reason to order the prosecution to produce the colloquy between the prosecution and the Grand Jury to determine how and what the prosecution advised the Grand Jury when there was absolutely no evidence presented to them that Mr. San Agustin was given an order by Mr. Maketa or Ms. Presley to commit the crimes of Kidnapping and False Imprisonment, and when he was not present at the Arrest Conference where Ms. Trull was ordered to be arrested. The prosecutor’s failure to present the truth may constitute prosecutorial misconduct or inappropriate conduct. Based on the already noted instances of inappropriate conduct, Mr. San Agustin requests that the colloquy between the prosecution and the Grand Jury be produced to Mr. San Agustin, and as alternative, that it be produced in camera for the court’s review and disclosure.

Respectfully submitted this 8th day of September, 2016.

EYTAN NIELSEN LLC

/s/ Iris EytanIris Eytan, #29505

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CERTIFICATE OF SERVICE

I hereby certify that on this 8th day of September, 2016, a true and correct copy of the foregoing MOTION FOR PRODUCTION OF GRAND JURY COLLOQUY DUE TO PROSECUTORIAL MISCONDUCT [D-8] was served via ICCESS, addressed as follows:

Mark Hurlbert: mhurlbert@da18.state.co.us Grant Fevurly: gfevurly@da18.state.co.us 18th Judicial District Attorney’s Office 6450 S. Revere Parkway Centennial, CO 80111

/s/ Tonya Holliday Tonya L. Holliday