This is the background image for an Adobe Acrobat Capture page with image plus hidden text. IN THE UNlTED STATES DISTRICT COURT (-” - 9 1 FOR THE DISTRICT OF COLUMBIA _ _ j ‘ ) / : :: ELOUISE PEPION COBELL, gt &, 1 1 PI aint i f k , 1 V. 1 Case No. 1:96CVO1285 ) (Judge Laniberth) GALE A. NORTON, Secretary of the Interior, a&,) ) Defendants. INTERIOR DEFENDANTS’ MOTION IN LIMINE TO PRECLUDE THE TESTIMONY OF hTLE SAMPSON Pursuant to Rule 104(a) of the Federal Rules of Evidence, Rule 7(b) of the Federal Rules of Civil Procedure, and Local Civil Rule 7.1, Interior Defendants respectfully move this Court for an order in limine prohibiting Plaintiffs from calling Kyle Sampson, Associate Counsel to the President, as a witness in the “Phase 1.5” trial.’ Because the Phase 1.5 trial concerns the January 6,2003 plans proposed by the Department of the Interior (“Interior”) and by Plaintiffs, and because Mr. Sampson had no involvement whatsoever in the preparation of those plans, his testimony would be wholly irrelevant to the issues before the Court. Plaintiffs’ witness list for the Phase 1.5 trial identifies Mr. Sampson as one of Plaintiffs’ witnesses, and describes his expected testimony as follows: “Matters concerning defendants’ failure and inability to bring themselves into compliance with their trust duties and defendants’ witness intimidationhetaliation.” Plaintiffs’ Witness List at 3. Mr. Sampson, an attorney in the I h accordance with Local Civil Rule 7.1(m), counsel for Interior Defendants attempted to reach counsel for Plaintiffs to confer regarding this motion. Counsel for Plaintiffs has not responded, and Interior Defendants presume Plaintiffs will oppose this motion. - 1 - This is the background image for an Adobe Acrobat Capture page with image plus hidden text. White House Office of Counsel, is not involved in or responsible for Defendants’ efforts to bring themselves into compliance with their trust duties. Accordingly, his testimony on this issue would be of no assistance to the trier of fact, Indeed, i n a September 27, 2002 Report and Recomiiiendatioii, which the Court adopted, see Order (Oct. 18, 2002), the Special Master- Monitor stated that Mr. Sampson was not a “proper subject[] for deposition for [anly purposes which this Court has authorized discovery” for the Phase 1.5 trial because he has “little or no knowledge of or responsibility for trust reform at the Department of the Interior.” Report and Reconimeiidation of the Special Master Monitor On Defendants’ Motion For Protective Order And To Quash Deposition Subpoenas, at G (September 27,2002) (“September 27,2002 Report and Recommendation’)). Plaintiffs’ attempt to present Mr. Sampson’s testimony regarding “defendants’ witness intimidatiodretaliation” can only be another improper attempt to relitigate issues already settled by the Court. In August, 2002, Plaintiffs served subpoenas for the depositions of Mr. Sampson and other government officials for the apparent purpose of obtaining discovery about two matters that the Constitution entrusts exclusively to the Executive Branch: the removal of the Special Trustee for American Indians, a purely executive official who serves at the pleasure of the President, and the Executive Branch’s internal review and Clearance of prepared testimony the Special Trustee would provide to a congressional committee. Defendants moved to quash the deposition subpoenas and sought a protective order precluding Plaintiffs from conducting the depositions. Defendants’ Motion For Protective Order And To Quash Deposition Subpoenas (Aug. 2 1,2002). - 2 - This is the background image for an Adobe Acrobat Capture page with image plus hidden text. On October 18, 2002, this Court granted Defendants’ motion as to MI-.Sampson “for the reasons stated in the Special Master-Monitor’s [September 27, 2002 Report and Recoiiii7ieiidatioii].” Order, at 1 (Oct. 18. 2002). The September 27, 2002 Report and Recommendation reasoned that Plaintiffs should not be pcmiitted to depose Mr. Sampson “concerning the Special Trustee’s dismissal” because “the President has unbridled authority to dismiss [the Special Trustee] for any reason not subject to review by this Court or inquiry by litigants in this case.” September 27,2002 Report and Recommendation at 4. Similarly, the Report and Recommendation reasoned that Plaintiffs should not be permitted to seek discovery from Mr. Sanipson about the “alleged suppression of the Special Trustee’s planned written testimony before Congress about the status of the historical accounting project” because “if Congress had wanted the Special Trustee to be entirely independent of the Secretary, if not the President, to be able to report candidly to Congress, without interference by Secretary Norton or her key subordinates, Congress could have done so but did not.” Id.at 5. Inasmuch as the Court has already determined that any testimony Mr. Sampson could provide is irrelevant to the issues before the Court in the Phase 1.5 trial, and beyond the scope of proper judicial inquiry in any event, the Court should preclude Plaintiffs from calling Mr. Sampson to testify as a witness in the Phase 1.5 trial. - 3 - This is the background image for an Adobe Acrobat Capture page with image plus hidden text. CONCLUSION For the foregoing reasons, Intcrior Defendants respectfully move this Court for an order -___ in liniine barring plaintiffs from calling MI-. Kyle Sampson as a witness at the Phase 1.5 trial. Respectful1y submitted, ROBERT McCALLUM, JR. Assistant Attorney General STUART E. SCHIFFER Deputy Assistant Attorney General J. CHRISTOPHER KOHN Director &..\,@r-Lc Qc- SANDY P. SPOONER (D.C. gar No. 261495) Deputy Director JOHN T. STEMPLEWICZ Senior Trial Attorney CYNTHIA L. ALEXANDER Trial Attorney Commercial Litigation Branch Civil Division P.O. Box 875 Ben Franklin Station Washington, D.C. 20044-0875 (202) 5 14-7194 April 28,2003 - 4 - This is the background image for an Adobe Acrobat Capture page with image plus hidden text. IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ELOUTSE PEPION COBELL, &, 1 1 PI ainti ffs, 1 ) V . ) Case No. 1:96CV01285 1 (Judge Lamberth) al., ) GALE NORTON, Secretary of the Interior, g 1 Defendants. 1 ORDER Upon consideration of Interior Defendants’ Motion In Limine To Preclude The Testimony of Kyle Sampson (“Interior Defendants Motion”), any responses thereto, and the record of the case, it is hereby ORDERED that Interior Defendants’ Motion is GRANTED. It is further ORDERED, that Plaintiffs will not be permitted to call Kyle Sampson to testify as a witness in the Phase 1.5 trial. SO ORDERED this day of ,2003. __ ROYCE C. LAMBERTH United States District Judge This is the background image for an Adobe Acrobat Capture page with image plus hidden text. cc: J. Christoplicr Kohn Sandra P. Spooner Comnierc i a1 Litigation Branch Civil Division P.O. Box 875 Ben Franklin Station Washington, D.C. 20044-0875 Fax (202) 514-9163 Dennis M Gingold, Esq. Mark Brown, Esq. 1275 Pennsylvania Avenue, N.W. Ninth Floor Washington, D.C. 20004 Fax (202) 3 18-2372 Keith Harper, Esq. Native American Rights Fund 1712 N Street, NW Washington, D.C. 20036-2976 Fax (202) 822-0068 Elliott Levitas, Esq. 1 100 Peachtree Street, Suite 2800 Atlanta, GA 30309-4530 Alan L. Balaran, Esq. Special Master 1717 Pennsylvania Avenue, N. W. 13th Floor Washington, D.C. 20006 (202) 986-8477 Earl Old Person (Pro se) BI ackfeet Tribe P.O. Box 850 Browning, MT 59417 (406) 338-7530 This is the background image for an Adobe Acrobat Capture page with image plus hidden text. CERTIFICATE OF SERVICE I declare under penalty of perjury that, on April 28,2003 I senred the foregoing Irrterior. &fetidants’ Motiori in Liiiiiiie to Prccluck the Testinroriv of Kj-leSunpon by facsimile in accordance with their written request of October 3I , 2001 upon: Keith Harper, Esq. Nativc American Rights Fund 1712 N Street, N.W. Washington, D.C. 20036-2976 (202) 822-0068 Per the Court’s Order of April 17,2003 By Facsimile and U.S. Mail upon: My Earl Old Person (Prose) Blackfeet Tribe P.O. Box 850 Browning, MT 59417 (406) 338-7530 By facsimile and U.S. Mail upon: Alan L. Balaran, Esq. Special Master 1717 Pennsylvania Avenue, N.W. 13th Floor Washington, D.C. 20006 (202) 986-8477 Dennis M Gingold, Esy. Mark Kester Brown, Esq. 1275 Pennsylvania Airenue, N.W Ninth Floor Washington, D.C. 20004 (202) 318-2372 By U.S. Mail upon: Elliott Levitas, Esq 1100 Peachtree Street, Suite 2800 Atlanta, GA 30309-4530 s r b/O Sean P. Schmergel