Case 2:15-cr-00091-HGB-SS Document 81 Filed 08/03/15 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF LOUISIANA
NEW ORLEANS, LOUISIANA
THE UNITED STATES OF AMERICA
VS.
ROBERT DURST

NO. 15-CR-91

DURSTS RESPONSE TO THE GOVERNMENTS

MOTION FOR RECONSIDERATION (DOC. 75) OF COURTS ORDER DENYING
GOVERNMENTS MOTION TO STRIKE EXPERT TESTIMONY NOTICE (DOC. 73)
TO THE HONORABLE HELEN G. BERRIGAN:
Introduction.
The Defense gave notice of intent to call Don DeGabrielle as an expert witness in this
case on May 6, 2015. 1 The Government filed its motion to strike Mr. DeGabrielles proposed
testimony on May 15, 2015. 2 The Court denied the motion to strike on July 23, 2015. 3 Later
that same day, the Government filed a motion to reconsider the Courts denial. 4

The

Governments motion to reconsider did not argue that the Courts reasoning was somehow
mistaken; the Government presented a new argument instead. The Governments new position is
that Mr. DeGabrielle has a conflict of interest that should preclude his testimony. 5

Doc. 48.
Doc. 51.
3
Doc. 73.
4
Doc. 75.
5
The Government was aware of Mr. DeGabrielles alleged conflict well before filing its motion to strike. In fact,
the newspaper articles attached to the Governments motion for reconsideration were provided to the Defense by the
Government in discovery. In the civil context, motions for reconsideration cannot be used to raise arguments
which could, and should, have been made before the judgment issued. Rosenweig v. Azurix Corp., 332 F.3d 854,
836 (5th Cir. 2003); see also, e.g., Lively v. Diamond OffShore Drilling, Inc., No. Civ. A. C3-1989, 2004 WL
2194408, at *1 (E.D. La. Sept. 24, 2004). There is no reason to treat the Governments motion to reconsider
differently in this case. Because the Government could have raised Mr. DeGabrielles alleged conflict in its motion
to strike, but chose not to do so, its motion for reconsideration based on that argument should be summarily denied.
2

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While the Defense disagrees with the Governments view that a conflict exists, the
Defense nevertheless attempted to remedy the Governments concerns by agreement.

The

Defense offered to substitute Mr. DeGabrielle with Ronald Gene Woods, a former FBI agent and
former United States Attorney. 6 The Government refused.
Background Regarding the Claimed Conflict.
Durst was acquitted of murder in Galveston, Texas on November 11, 2003. Unhappy
with this acquittal, the lead detective on the Galveston case, Galveston Police Detective Cody
Cazales, contacted multiple law enforcement agencies across the country in an effort to have
Durst charged with some other offense, any offense. Eventually, Durst was charged with two
weapons offenses in the Eastern District of Pennsylvania on October 4, 2004. 7
During the same time period that Detective Cazales was soliciting assistance in other
jurisdictions, the Defense learned that Detective Cazales had approached the United States
Attorneys Office for Southern District of Texas encouraging the office to prosecute Durst for a
separate weapons offense. Mr. DeGuerin engaged in talks with AUSA Robert Stabe as a result. 8
AUSA Stabe informed Mr. DeGuerin that his office rejected the prosecution that Detective
Cazales proposed. Mr. DeGabrielle was not the United States Attorney for the Southern District
of Texas at the time.
Mr. DeGabrielle was sworn in as United States Attorney in March 2006. On June 6,
2006, The Galveston Daily news published two articles that quoted Mr. DeGabrielles remarks

The Defense provided the Government Mr. Woods curriculum vitae on July 27, 2015. Along with providing Mr.
Woods qualifications, the Defense proposed the following to AUSA Ranier: Agree that Mr. Woods is equally
qualified to opine on federal law enforcement procedures relative to arrest, inventory and search without waving
your objection to the propriety of the expert opinions. Mr. Woods qualifications are detailed in his curriculum vitae
attached as Exhibit A.
7
Durst pled guilty to Possessing a Firearm While Under Indictment and Possessing a Firearm While a Fugitive on
October 25, 2004, and he was sentenced to nine months incarceration on December 22, 2004.
8
AUSA Stabe was the Chief of the Gun Violence Division, responsible for prosecuting federal weapons offenses.

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regarding Durst. 9 Mr. DeGabrielle made it clear that, in 2004, a veteran prosecutor had declined
to file new weapons charges against Durst. To Mr. DeGabrielle, that was the end of the matter.
Conclusion.
AUSA Stabes decision not to prosecute Durst in the Southern District of Texas in 2004
does not somehow disqualify Mr. DeGabrielle, who became the United States Attorney in 2006,
from providing expert testimony in this case. Even so, Durst will replace Mr. DeGabrielle with
an equally qualified expert, Mr. Woods.
Durst respectfully requests this Courts permission to call Mr. Woods as an expert at the
suppression hearing on September 16, 2015, to testify regarding the same subject matters set out
in the Defenses prior notice for Mr. DeGabrielle. The Governments Motion to Reconsider
should be denied as moot.
Respectfully submitted,
Dick DeGuerin
Admitted Pro Hac Vice
DEGUERIN, DICKSON,
HENNESSY & WARD
1018 Preston, 7th Floor
Houston, Texas 77002
Telephone: (713) 223-5959
Facsimile: (713) 223-9231
dick@deguerin.com

/s/ William P. Gibbens

William P. Gibbens, 27225
Ian Atkinson, 31605
SCHONEKAS, EVANS, McGOEY &
McEACHIN, L.L.C.
909 Poydras Street, Suite 1600
New Orleans, Louisiana 70112
Facsimile: (504) 680-6051
billy@semmlaw.com
ian@semmlaw.com

FBI agents found copies of these articles in Dursts hotel room when they searched it on March 14, 2015. As noted
above, the articles, which bear Government bates numbers, were provided to the Defense in discovery.

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Chip B. Lewis
Admitted Pro Hac Vice
LAW OFFICES OF CHIP B. LEWIS
1207 S. Shepherd
Houston, Texas 77019
Telephone: (713) 523-7878
Facsimile: (713) 523-7887
chipblewis@aol.com

David Z. Chesnoff
Admitted Pro Hac Vice
CHESNOFF & SCHONFELD
520 S. Fourth St.
Las Vegas, NV 89101
Telephone: (702) 384-5563
Facsimile: (702) 598-1425
dzchesnoff@cslawoffice.net

Attorneys for Robert Durst

CERTIFICATE OF SERVICE
I hereby certify that on August 3, 2015, I electronically filed the foregoing pleading with
the Clerk of Court by using the CM/ECF system which will send a notice of electronic filing to
all counsel of record.
/s/ William P. Gibbens
WILLIAM P. GIBBENS

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