Free Motion for Discovery - District Court of Arizona - Arizona

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PATRICIA A. GITRE, P.L.C (#011864) 331 N. 1st Avenue, Suite 150 Phoenix, Arizona 85003 Telephone: (602) 452-2918 Fax: (602) 532-7950 Attorney for Kevin J. Augustiniak IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA UNITED STATES OF AMERICA,

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CR03-1167-PHX-DGC DEFENSE MEMORANDUM RE: COURT ORDER DATED 7/11/05 DISCOVERY REQUESTS

Plaintiff, vs. KEVIN J. AUGUSTINIAK Defendant.

Defendants in the above case, through counsel for Defendant Augustiniak, submit their memorandum in accordance with this Court's order dated July 11, 2005. This memorandum incorporates all previous requests for disclosure, the revised matrix and other exhibits attached and incorporated herein by this reference. I. THE INDICTMENTS A. The Original Indictment The government filed its first indictment in this matter on November 18, 2003. There were only 6 counts. Count 1 was RICO enterprise and Defendants Johnston, Smith, Dam, Walters, Murphy, Schaefer, Denbesten, Jamie, and Ward were specifically charged. Defendants Kelly, Watkins, Reinstra, Toth, and McKay were listed as associates. Count 1 further alleged 16 racketeering acts. The racketeering acts alleged were: act 1 -- attempted murder of the Mongols (Smith, Walters, and Schaefer); act 2 -- conspiracy to murder a Mongol (Walters); act 3 -- witness tampering (Johnston); act 4 (a) and (b) -- conspiracy to distribute methamphetamine and distribution of methamphetamine (Smith, Denbesten); act 5 -- distribution of methamphetamine (Murphy); act 6 -- distribution of methamphetamine (Schaefer); act 7 -- distribution of methamphetamine (Denbesten); act 8 -- distribution of methamphetamine
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(Murphy); act 9--distribution of methamphetamine (Jamie); act 10--distribution of methamphetamine (Schaefer); act 11--distribution of methamphetamine (Dam); act 12--distribution of methamphetamine (Jaime); act 13--distribution of methamphetamine (Ward); act 14--distribution of methamphetamine (Ward); act 15--distribution of methamphetamine (Dam); and act 16--conspiracy to distribute methamphetamine and marijuana (Johnston). Count 2 alleged a RICO conspiracy (Johnston, Smith, Dam, Walters, Murphy, Schaefer, Denbesten, Jaime, and Ward). They were charged with a conspiracy to conduct the affairs of an enterprise through a pattern of racketeering from 1999 until "the present" (November 18, 2003). Count 3 alleged that Eischeid and Augustiniak committed a VCAR (violent crime in aid of racketeering) by murdering Cynthia Garcia. Count 4 alleged that Kelly and Watkins committed a VCAR by assaulting Gutierrez with a dangerous weapon. Count 5 alleged that Walters and Reinstra committed a VCAR by conspiring to murder Mongols, members of another motorcycle club. Count 6 alleged that McKay committed a VCAR by assaulting Potter with a dangerous weapon. B. Superseding Indictment

The government filed a superseding indictment on September 30, 2004. The racketeering acts were the same, and the counts were the same as in the original indictment except for two additional counts. The new counts were 7 and 8. Count 7 alleged that McKay committed a VCAR by threatening to commit a crime of violence. Count 8 alleged that McKay threatened a federal law enforcement officer. Both of these charges stem from a meeting that McKay had with Agent Dobyns (aka "Bird") while Dobyns was working in an undercover capacity. C. Second Superseding Indictment The government filed its second superseding indictment on January 19, 2005. Instead of 16 racketeering acts as in the previous indictments, this indictment had 20. One of the new racketeering acts, Act 1, alleged that Eischeid and Augustiniak kidnapped Cynthia Garcia. Act 2 alleged that Eischeid and Augustiniak murdered Cynthia Garcia. Act 3 alleged that Augustiniak committed witness tampering by

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threatening to use physical force against a witness. Act 4 alleged that Walters committed attempted murder of Mongols. The government increased the number of counts from 8 in the superseding indictment to 43 in the second superseding indictment. Count 4, for example, is an allegation against Eischeid and Augustiniak for the murder of Cynthia Garcia. Other firearms-related counts were added to this indictment. For example, counts 12 through 15 allege that Kelly was a felon in possession of four different firearms which Dam and McPherson sold to Agent Dobyns without Kelly ever touching the firearms or being present during the transactions. Other firearms-related charges involved persons selling small quantities of drugs and happening to have a pistol on their person or nearby their person--counts 27, 30, 33, 37, 38, and 42.1 II. ELEMENTS OF THE OFFENSES A. Enterprise

The elements of RICO are: (1) conduct, (2) of an enterprise, (3) through a pattern, (4) of racketeering activity. Two predicate acts are required. See United States v. Fernandez, 388 F.3d 1199, 1221 (9th Cir. 2000). The term "enterprise" encompasses both legitimate and illegitimate enterprises. United States v. Turkette, 452 US 576, 580-593 (1981). The existence of an enterprise must be proven as an element of the case that is separate and distinct from the pattern of racketeering activity alleged in any given case. Id. at 583. The concept of the "enterprise" is of vital importance in criminal RICO actions because the various

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illegal activities enumerated in the subdivisions of 18 U.S.C. §1962 all involved some degree of interaction, or nexus, with an "enterprise" pursuant to §1962(c). This section authorizes the government to charge that

The defense has not been able to determine through discovery what new facts were "discovered" after the original indictment (other than as to Defendant McKay) which began facts in support of the RICO charge particularly as to Defendant Augustiniak. All the predicate acts alleged were known to the government well before the original indictment and certainly at the time of the first superseding indictment. There would have been no new issues requiring the addition of the new allegations of racketeering acts and allegations of RICO counts. If there were, the government would have had to present all the new facts to different grand juries who heard the evidence. The government has represented to the court during proceedings requesting grand jury information that they have done everything properly regarding grand jury presentation. The defense reserves its right to pursue this issue at a later time after disclosure of Jenks material to include testimony before the grand jury.
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the affairs of an enterprise are being conducted through a pattern of racketeering. Unlike the provisions of §§1962(a) and (b), which focus on the infusion of illicit funds into preexisting legitimate enterprises, §1962(c), and to a considerable extent §1062(d) have allowed for a broad reading of the term, "enterprise," in RICO litigation. See, e.g., United States v. Hughes, 895 F.2d 1135 (6th Cir. 1990) (association in fact enterprise); United States v. McRae, 28 F.3d 383 (3d Cir. 1994) (U.S. Congressman's office a RICO enterprise); United States v. Balzano, 916 F.2d 1273 (7th Cir. 1990) (city's fire department an enterprise); United States v. Stolfi, 889 F.2d 378 (2d Cir. 1989) (entities that are separate and distinct enterprises may justly be a RICO enterprise). In the instant case, the government has charged a series of separate, distinguishable, often spontaneous, ad hoc acts, and called them racketeering acts in an attempt to create the image of an enterprise. In a RICO prosecution, the government must establish both the existence of an enterprise and a pattern of racketeering activity. The two elements are separate and the enterprise is not, by its mere existence, proof of a pattern of racketeering activity. Turkette, supra, 452 U.S. at 583. "...In order to secure a conviction under RICO, the Government must prove both the existence of an `enterprise' and the connected `pattern of racketeering'. The enterprise is an entity, for present purposes a group of persons associated together for a common purpose of engaging in a course of conduct. The pattern of racketeering activity is, on the other hand, a series of criminal acts as defined by the statute. 18 U.S.C. § (1) (1976 ed., Supp. III). The former is proved by evidence of an on going organization, formal or informal, and by evidence that the various associates function as a continuing unit. The latter is proved by evidence of the requisite number of acts of racketeering committed by the participants in the enterprise. While the proof used to establish these separate elements may in particular cases coalesce, proof of one does not necessarily establish the other. The `enterprise' is not the `pattern of racketeering activity'; it is an entity separate and apart from the pattern of activity in which it engages. The existence of an enterprise at all times remains a separate element which must be proved by the Government." Turkette, supra, 452 U.S. at 583. Before the government can show a relationship between an enterprise and racketeering acts, it must prove the acts were related to the activities of the enterprise or that the defendants were able to commit the acts solely because of their position in the enterprise. United States v. Bruno, 383 F.3d 65, 84

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(2nd Cir. 2004). ("Relatedness between the racketeering acts and the enterprise can be proven by showing either that: (i) the offense related to the activities of the enterprise, or (ii) the defendant was able to commit the offense solely because of his position in the enterprise..."). Therefore, the defense must refute the existence of a criminal enterprise and establish that each predicate act charged is separate, unrelated, ad hoc, and spontaneous acts by individuals. In this case, there is no hierarchy­no leadership of a state-wide criminal enterprise. There are merely clubs with as few as six members (Tucson chapter). The individuals charged in this case were from different chapters without a common purpose. They acted ad hoc or in a spontaneous manner­not as a criminal enterprise. The defense submits that there is no evidence that any of the alleged acts were to enhance or to promote a defendant's position in any enterprise, or to enrich any enterprise, or were conducted as part of an ongoing pattern of racketeering related to an enterprise. B. To Conduct the Affairs of the Enterprise The phrase, "to conduct the affairs of the enterprise," relates to the performance of the acts, functions, or duties which are necessary or helpful in the operation of the enterprise. "A defendant conducts or participates in the affairs of the enterprise when that defendant participates, in some degree, in the operation, direction, or management of the enterprise through a pattern of racketeering activity." Participation means more than merely aiding and abetting. United States v. Shryock, 342 F.3d 948, 985, 986 (9th Cir. 2003). In Reves v. Ernst & Young, 507 U.S. 170, 185 (1993) the Supreme Court held `to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs' one must participate in the operation or management of the enterprise itself.' (citation omitted). The Court concluded that the word `conduct' indicated some degree of direction over the affairs of the enterprise. Id. at 178. The Court concluded also that the term `participate' meant `to take part in' and not to `aid and abet.' Id. at 178-79'.

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C.

Pattern of Racketeering Activity

None of the actions alleged by the government indicate a pattern of racketeering activity as envisioned by the RICO statute. Shyrock, supra, discussed "pattern of racketeering activity". The District Court gave the following instruction with respect to the `pattern' element: `A person engages in a pattern of racketeering activity if he commits at least two related acts of racketeering within ten years. The two racketeering acts may not be isolated or disconnected, but must be related to each other by a common scheme, plan, or motive. The two racketeering acts must also amount to, or pose a threat of, continued criminal activity."' Shyrock, 342 F.3d at 986 (Emphasis added). In order for the crimes of violence to rise to the status of VCAR (violent crime in aid of racketeering), the elements must first be met. If the elements of RICO are not met, as in the instant case, there can be no VCAR. "We have also held that the government needs to prove the following elements to establish a VCAR violation when proceeding under the "status crime" theory of the statute: `(1) that the criminal organization exists; (2) that the organization is a racketeering enterprise; (3) that the defendants committed a violent crime; and (4) that they acted for the purpose of promoting their position in the racketeering enterprise.' United States v. Bracy, 67 F.3d 1421, 1429 (9th Cir. 1995) (citing United States v. Vasquez-Velasco, 15 F.3d 833, 842 (9th Cir. 1994). [FN 10]. United States v. Fernandez, 388 F.3d 1199, 1120 (9th Cir. 2004). (Emphasis added). The defense must establish that none of the unconnected alleged activities occurred on behalf or in furtherance of promotion of the HAMC. Simply put, just because members of the Hells Angels are accused of crimes does not equate to each individual committed the alleged criminal act for the HAMC. The defense contends that each of the requested items is material to each individual defendant's defense to RICO and VCAR charges as alleged in the second superseding indictment.

D. The investigations
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The ATF began at least four investigations documented in the following reports:2 Phoenix California Laughlin Fabricant III. ATF 7805040-02-0049 LA ATF 784015-02-0006 ATF 784015-03-0054 case number unknown3

SECTION 4: RULE (16) (A) (1) (E) (I) MATERIAL The Court granted the Defense an opportunity to establish materiality of four main categories that the

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government is either refusing to disclose or will not disclose until six/two weeks before trial:
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(1) items relating to confidential informants informant files, plea agreements, transcripts of plea
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agreement, contracts, benefits [items 14-40] for three main informants ­CI376, CI790 and CI 604.
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(2) Undisclosed reports, surveillance logs and recordings and from ATF investigation LA ATF 78401513

02-0006 "Operation Dequiallo [Matrix Items #50,52,56,59-64,66-68.70,72, 75-76,78-76,78-85,8714

92,97-119,121,125 and 127-182.]. The government claims the defense has not shown materiality
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and that there is an ongoing investigation in another district.
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(3) Electronic recordings made by informant Michael Kramer in Operation Dequiallo [items
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187,188,189-192,194-213, 221-252, 255, 257-269). As to items 190-199, 203, 207, 221, 222, 244,
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the government has agreed to produce only certain sessions of these recordings and the defense
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is unable to determine whether the corresponding ROI's, drug analyses and surveillance logs will
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be produced by the government.
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(4) Search warrants from ATF investigation ATF 784015-02-0006 [item 460]. The government
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disclosed search warrant affidavits, search warrants, and related material for approximately 42
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search warrants in the States of Arizona, California, Washington, and Alaska. The affidavits for the
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42 warrants based probable cause in a large part on Michael Kramer's claims and activities. The
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government refuses to disclose approximately 5-11 additional search warrants that resulted solely
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The government has agreed to release another investigation including wiretaps referenced in Agent Slatalla's CV. This may be another "separate" HAMC investigation report. 3 There is a separate report entitled "Daniel Fabricant" which the government has not disclosed. There are at least three reports within this investigation. The defense will ask again for disclosure. See Matrix Item #458.
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from Michael Kramer's informant activities claiming that these warrants are sealed, there is an "ongoing investigation," and the defense failed to show "materiality."4 See Revised Matrix attached as Exhibit 1 with Defense comments. A. CI-790 RUDY KRAMER

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From on or about March 6, 2002 through the beginning of April 2002, CI-790, Rudy Kramer, participated in an interview/debriefing with special agents of the ATF wherein he advised them that he could introduce law enforcement agents into the HAMC. (PHOENIX ATF 7805040-02-0049). Rudy Kramer was well known in the drug world as "the pharmacist" because he could cook the best methamphetamine on the market. CI-790 discussed with the ATF specific members of the HAMC and claimed personal knowledge of specific facts concerning these individuals. It should be noted in ROI 7 at page 3, "Rudy Kramer claims that Robert Johnston is married to Shirley who owns a motorcycle shop in Mesa called Shirley's V-Twin." Johnston has never been and is not married to anyone named Shirley. In fact, he has only been married once, is still married, his wife's name is not Shirley and she does not work at a motorcycle shop.

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Rudy Kramer also informed ATF that HAMC had secret motorcycle runs that involve the distribution of narcotics to those who attend HAMC parties. In addition, various operational matters were discussed with Rudy Kramer regarding his cooperation including controlled purchases of narcotics and firearms. Also, it is believed that the scope of his participation was outlined along with what was expected of him and what he was prohibited from doing. He was then instructed on the introduction of federal agents into the HAMC. On Monday May 6, 2002 Rudy Kramer spoke with Robert Johnston on the telephone at Johnston's place of employment and informed him that he wanted to conduct business. According to ATF ROI 9 at page 1 of 3, this interaction was a conversation concerning Rudy Kramer's request to sell narcotics in

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There are at least two search warrants in this case that the defense knows are unsealed including the search warrant for Daniel Fabricant's home, discussed infra. The first warrant sought for Fabricant's home was denied by

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Arizona. Rudy Kramer took detailed notes of his discussions contemporaneously with the conversations and provided these handwritten notes and photographs to Agent Slatalla detailing his interactions with Johnston (ROI 9 at page 3 of 3). On June 15, 2002 Rudy Kramer claims that he met with HAMC "World" officer Dwayne a.k.a. "Shifter." It should be noted that there is no such thing in the HAMC as a "World" officer. However, if Rudy Kramer took detailed notes and photographs of his interactions with this person and others, as is claimed by ATF agents, it would be easy to conduct an investigation of those individuals to either corroborate or rebut Rudy Kramer's version of events. Put simply, the defense should be able to investigate these people and ask them who they are, did they meet with Rudy Kramer, and what their conversations were with him. On June 23, 2002 (ROI 15 at page 3 of 4), Rudy Kramer claims that HAMC Nomads identified only as Butch and Nathan and who were wearing "Enforcer" patches confronted him and informed him that they were assigned to check up on him. He claims that this was done on behalf of Robert Johnston. Rudy Kramer also claims that Nathan telephoned Johnston and allowed Kramer to speak with Johnston on his phone. Again, notes and photographs of these interactions would allow the defense to investigate and conduct witness preparation. It should be noted that there are no members of the HAMC Nomads named Butch or Nathan and there is no such thing as an "Enforcer" patch. On June 25, 2002 Rudy Kramer claims that he was confronted by an individual in a brown-colored pickup who again telephoned Bob Johnston concerning previous conversations with Butch and Nathan. Neither a general description of the man in the brown colored truck, nor the license plate number is given in ROI 15 at page 4. This contradicts the ATF's assertion that Rudy Kramer kept copious detailed handwritten notes and photographs of his interactions. In any event, the man in the brown truck is important in uncovering admissible evidence concerning the alleged incident.

United States District Court Judge Robert N. Block on 12/3/03. The government claims that the remaining warrants are `sealed.' Even if true, the government may move to unseal these warrants at any time.
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On July 13, 2002 Rudy Kramer met with Bob Johnston concerning "club politics." Rudy Kramer was wearing a body wire, but due to operator malfunction a recording was not completed. However, his handwritten notes made contemporaneous with his interactions would be material to uncovering specifically what topics were covered and about whom the conversation involved.5 On July 30, 2002 Rudy Kramer was provided a recording device and met with Bob Johnston at his place of employment. Again, due to operator error, no recording was made. ROI 17 at page 3 of 4 claims that Rudy and Bob discussed firearms and explosives purchases. On August 1, 2002 Rudy introduced members of ATF to HAMC Mesa charter. ROI 18 at page 3 of 3 claims that Johnston advised Rudy Kramer that Solo Angels were welcome to traffic narcotics in Arizona. On August 13, 2002, Rudy Kramer telephoned HAMC member "Alex" and advised him that it was important to meet with Johnston or a person designated by Johnston as a representative. That same day, Rudy Kramer extended a thank you to the HAMC for allowing the Solo Angels to operate in the state of Arizona. No notes or photographs are provided to indicate the individuals representing the HAMC organization with whom Rudy Kramer claims to have met. On November 2, 2002, CI-790, Rudy Kramer was arrested by the Arizona Department of Public Safety and was found to be in possession of two ounces of methamphetamine while he was participating as an ATF confidential informant. He was subsequently charged and detained as a flight risk and as a result of his methamphetamine addiction. ATF files and reports concerning his drug use while being a paid confidential informant will certainly lead to material information necessary to the preparation of defendant's case. It is also material to the defense preparation to know whether and when Rudy Kramer was placed in isolation or segregation while at CCA, and/or punished in proximity to failing to sign an affidavit which he

ROI 17 at page 3 of 4.
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claims is false. It is necessary for the defense to know which officers at CCA wrote reports concerning Rudy Kramer and his actions at CCA. Upon information and belief, Rudy Kramer was prescribed medications. This information leads to the discovery of his treating physician and the reasons why theses medications were prescribed. The presence of any medical or psychological disorders is something that will lead to useful and admissible information and is necessary to the preparation of the defendant's case. B. POPS AKA JAMES BLANKENSHIP CI -604

James Daniel Blankenship: AKA "Pops"; AKA "Bad Company"; ATF CI 785000-604 (Paid Informant), has been working in a "proactive" role for ATF for many years. Blankenship poses as a freewheeling, drug using associate of ATF Special Agent Jay Dobyns in the business of debt collection, drug purchasing, gun dealing, bounty hunting, and contract murder for the Phoenix HAMC ATF investigation, 7805040-02-0049. Blankenship's role was to locate and contact possible targets and attempt to involve these targets in criminal activity. Blankenship most often let it be known that he was seeking personal use drugs and he would purchase small quantities for his own use usually recording the transaction on a recording device. These personal use purchases in the present case form the factual basis for many of the predicate Racketeering Acts and drug related counts in this indictment. Blankenship's method of operation is illustrated in his own words on a body wire recording made on 2/11/03: Blankenship: "2/11/03 the time is 6:50 hours. I'm "Pops." I'm going to the Inferno Bar in Bullhead City where H.A. Dennis is, Hang around Bob is, hang around Billy is supposed to be coming, H.A. Smithy (sic), and H.A. Steve, all Nomads from Flagstaff. We are having a little get together for my birthday, gonna try and broker some guns from Smithy (sic) and some crystal methamphetamine from Dennis. I'll also try [to] get another bag of weed from Steve..." Blankenship: (on phone, probably to ATF SA Dobyns): "...You know I got Steve done so. Oh fucking outstanding, outstanding. Right. We're going to make, we're going to make our quota, between the three of us, we'll make it. Right. Yeah we're looking good, yeah..." from E-95 CD (Emphasis added). CI Blankenship is clearly a material witness to many of the Racketeering Acts charged in this indictment. The following is merely a sample of Blankenship's critical role in this investigation:
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Racketeering Act 6: Robert Johnson is being charged with threatening to use physical force against Rudolph Kramer in violation of 18 USC § 1512(b) (3). CI Blankenship is the only person reported to have heard such a threat. No such threats have been captured on any recording device although CI Blankenship was wired for recording during his reported contact. See ATF report 56 paragraph 6.

Racketeering Act 7: Donald Smith and Dennis Denbesten are charged in this Act with selling and/or conspiring to sell methamphetamine to Blankenship on or about Feb. 1, 2003. Blankenship, it is alleged in ROI 62, paragraph 11, purchased approximately 1.75 grams of methamphetamine from Denbesten and that Smith, standing some distance away from that exchange, was a conspirator in that sale. Recordings of the event fail to confirm any details of the alleged sale or any conspiratorial agreement. See ATF ROI 62 paragraph 11.

Racketeering Act 10: Dennis Denbesten is charged with the sale of less than 2 grams of methamphetamine to Blankenship or about Feb. 15, 2003. Blankenship sought the personal use quantity claiming he had no source in Phoenix. Blankenship, it is reported, provided Debensten with $100 for the methamphetamine. See ATF ROI 63, paragraph 12.

Racketeering Act 12: Rudy Jaime is charged with the distribution of methamphetamine on February15, 2003. Blankenship, it is reported, arranged to obtain a personal use quantity of the drug from Jaime. It is charged that, later Jaime provided Blankenship with less than .2 grams of methamphetamine without charge for his use. See ATF ROI 63, paragraph 16.

Racketeering Act 14: Douglas Dam is charged with the distribution of methamphetamine on April 1, 2003. It is alleged that Blankenship was led to a trailer by Dam. Blankenship claims to have observed lines of methamphetamine laid out for personal use. Blankenship ingested a small quantity of that methamphetamine. See ROI 66, paragraph 54.

Racketeering Act 15: Elton Ward is charged with distributing methamphetamine on April 28, 2003. Reports indicate that SA Dobyns and Blankenship were present at the exchange that
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involved about 1/8 of an ounce (a personal use amount) for $150.00. Reports indicate that Ward provided Blankenship with an additional 1/8th ounce free of charge. See ROI #68, paragraph 17, 18, 19.

Racketeering Act 18: George Walters and Theodore Toth are charged with conspiring to murder members of the rival Banditos Motorcycle Club on or about June 12, 2003. ATF's characterization of this alleged event has little relationship to the facts. Blankenship, along with SA Dobyns and TFA Long, by then prospective members of the Skull Valley Charter of the Hells Angels, were dispatched to Las Vegas to be part of a security detail for a meeting of the Nevada Confederation of Motorcycle Clubs. The Banditos are not the rivals of the Hells Angels and no confrontation was expected. There was no plan or direction to murder anyone. Transcripts of undercover recordings do not support the ATF's characterization of this activity. Security was provided for the event, nothing took place that required security, and all members returned to Arizona after the Confederation meeting concluded. Blankenship was part of this security detail and a material percipient witness to all conversations and activities relevant to this event. See ROI #7, paragraphs 32-37; also Transcripts of E-167 A&B.

Racketeering Act 20: Robert Johnston is charged with conspiring to distribute methamphetamine from about August 2002 until July 8, 2003. Blankenship was an integral and material participant in many of the activities that the government intends to present in support of this Act. See ATF ROI's. Blankenship's role as a paid ATF informer and "operative" is the key to this entire investigation and now the prosecution of this matter. It is essential that the defense in this case by given a fair opportunity to investigate the background of Blankenship, uncover witnesses and admissible evidence prior to him being called as a witness at trial. C. CI 376 ­ MICHAEL KRAMER

CI 376 Michael Kramer, a two time convicted felon, is the chief informant for the ATF Operation Dequiallo, ATF 784015-02-006. This investigation was initiated on or about November when Kramer signed up to be a confidential informant for the ATF. Kramer wore ATF recording devices to record all HAMC contacts and Kramer's activities in California, Arizona, Alaska, Nevada, and perhaps other locations.
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Some of his contacts are recorded in different investigations but most are in the OD investigation. There are at least 168 reports from November 26, 2001 to sometime in 2004, in which agents documented Kramer's activities, documented surveillance of Kramer's activities, summarized the audio and video obtained from Kramer, impounded and tested drugs bought and sold by Kramer. All reports so far released by the government regarding the Garcia murder (that Augustiniak is charged with and Kramer pled to) are contained in "Operation Dequiallo" (ROI's 1, 9, 18, 66 AND 91). Over the last year, defense counsel has repeatedly sought all reports from Operation Dequiallo, the investigation in which Kramer was the critical ATF confidential informant, which will reveal all Kramer's activities from November, 2001 through August, 2003 including his own criminal conduct. Along with the 168 reports are corresponding audio and video made by Kramer and the agents, surveillance reports, logs, drug analysis, and results. The government is withholding approximately 100 reports (and tapes) from the OD investigation claiming that the defense has not shown materiality and to protect an "ongoing investigation." Kramer made unauthorized drug buys, used illegal drugs, committed violent acts some of which were captured on the wire worn by Kramer. As of July 1, 2005 the government hand-picked certain reports and audio tapes from Operation Dequiallo for disclosure and refused to disclose the rest claiming "an ongoing investigation." The government disclosed the following from Operation Dequiallo: Total reports and corresponding audio/video tapes: Total reports disclosed as of July 8, 2005:6 Disclosed but heavily redacted: Total reports (with corresponding audios, videos, surv. logs) not disclosed: Partial Audio recording sessions withheld: See Exhibit 2. Search warrants from Operation Dequiallo based on Michael Kramer: Total: Disclosed: approximately 57 42 168 42 15 110 117

Not disclosed: Approximately 14

This is an estimate as the defense has not had the opportunity to review all the reports and tapes that have been disclosed. It appears that the government disclosed some OD reports that it stated it will not disclose and did not disclose some reports that it said it would disclose. The defense has provided a "defective" recording list to the government for review. 7 See Matrix items 190, 192,194,197-199, 203 207,221, 222, 224.
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The relevant background facts surrounding Michael Kramer's admission to the murder of Garcia well after he became an ATF informant, establish the materiality of the defense requests for disclosure and also establish that the government's claim of an ongoing investigation does not trump the defendant's right to a fair trial. On or about October 31, 2001 the body of Cynthia Garcia was found near Bush Highway and Usery Pass Road outside of Mesa, Arizona. The autopsy determined that she died from multiple stab wounds of the neck and torso.8 On or about November 26, 2001 ATF agents Ciccone and Hamilton conducted an interview of CI78400-376, believed to be Michael Kramer. According to OD ROI 1 dated 12-13-01 (redacted and disclosed to the defense by the government), Kramer stated he would be willing to cooperate with the ATF in an investigation of the Hells Angels Motorcycle Club (HAMC) and various chapters in Arizona, California, as well as nationwide HAMC Chapters. According to the report, Kramer did not discuss his involvement or participation in the murder of Cynthia Garcia. Kramer confirmed during his testimony in USA v. Fabricant that he began working as an informant for the ATF in November 2001. On March 15, 2002, according to OD ROI 9 (redacted and dated 3/21/02), Kramer and ATF SA Ciccone met at the CI's residence for the purpose of planning to record meetings between the CI and Paul Eischeid, Kevin Augustiniak and Richard Hyder. On March 15, 2002, ATF conducted surveillance of CI's residence and monitored a meeting between Paul Eischeid and the CI on video (ES8) (OD ROI 9). On March 16, 2002, ATF conducted surveillance of a meeting between Augustiniak, the CI and Gary Dunham, a Mesa HAMC member. This meeting was audio taped by the ATF through two audio recording devices, (ES6 just disclosed to the defense and ES7) (OD ROI 9). On March 16, 2002, ATF conducted surveillance of a meeting between Richard Hyder and the CI.

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The ATF provided two recording devices (ES6 and ES7) to Kramer (OD ROI 9). On March 16, 2002, Kramer provided the ATF with names of all HAMC members he claimed were involved in the murder including Kevin Augustiniak, Paul Eischeid, and Richard Hyder. The report does not disclose whether Kramer told ATF at that time that he participated in the murder. (ROI 9).

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On April 17, 2002, Kramer identified for ATF, through photographs, three HAMC members, and two HAMC prospects who were allegedly involved in the murder of Cynthia Garcia (OD ROI 18). The members are: Kevin Augustiniak, Paul Eischeid, Richard Hyder, Dennis Gilliard, and David LeMoine. Notably, Michael Kramer apparently did not disclose that he participated in this murder. (OD ROI 18 dated April 18, 2002) On or about May 5, 2002, Richard Hyder was killed in a motorcycle accident in Stockton, California. The driver of the truck which killed Hyder was Michael Kramer and the circumstances of the "accident" are suspicious.

10 11 12 13 14 15 16 17 18 19 20

On October 3, 2002, Kramer confessed to Agent Ciccone that he used methamphetamine on this date while working for the ATF. Agent Ciccone notes in his report "The CI has never used methamphetamine in the past while working on behalf of the ATF, does not have a drug history and has never been convicted of a drug offense."9 On October 26, 2002, ATF documented the presence of HAMC members at the HAMC Five Year Anniversary Party at the Mesa Clubhouse in Mesa, Arizona. Michael Kramer, Gary Dunham, and Dennis Gilliard were at the party.10 On November 25, 2002 ATF Agents Ciccone and Hamilton reviewed the audio and video conversations between Michael Kramer and Paul Eischeid, Kevin Augustiniak and Richard Hyder from

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March 15 and 16, 2002. (OD ROI 66 dated November 25, 2002) On February 28, 2003, Michael Kramer met with ATF Agent Ciccone, AUSA Kemp, AUSA Schneider and others for a debriefing on the murder of Cynthia Garcia.( OD ROI 91 dated March 6, 2003)

Autopsy reports 12/14/2001. Case number 01-03421. This is not a true statement. Kramer's PSR report from his Arizona State convictions reveals that he had a drug problem when he was approximately 17 years old. His mother committed him to a drug rehabilitation center. While it is true that Kramer has not been convicted of a drug offense, most if not all his arrests and convictions had to do with alcohol. Further, many witnesses will testify that Michael Kramer is a long time methamphetamine user and during this ATF investigation he used methamphetamine as well as other drugs on a consistent basis sometimes for days at a time. 10 ROI 37, PHOENIX HELLS-002622.
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AUSA Schneider told Kramer that in consideration of his testimony, Kramer would not be charged with any involvement in a gun deal in March 1998. This is allegedly the first time Kramer provided ATF with details about the murder of Cynthia Garcia including his own involvement and participation. (OD ROI 91). According to Kramer, this is the first time that he provided the government with details about the murder which included that three people were present during the murder ­Kramer, Eischeid and Augustiniak. Kramer admitted that he was the first to assault the victim at the clubhouse and that he was the one who ordered a car to be brought around to transport her to the desert. Kramer further admitted that he slashed the victim across the throat with his knife, that he ordered the car that had been used to be taken to his house where he had the carpet torn out of the trunk (where the victim had been) and had the car cleaned to remove evidence. Kramer further admitted that it was he who disposed of the murder weapons.11 On April 6, 2003, Kramer again confessed to Agent Ciccone, that he used methamphetamine "because he was expected to use the drug as an HAMC member." Again, Agent Ciccone noted in his report that Kramer "does not have a drug history and has never been convicted of a drug offense." The real question is how many other times did Kramer commit violent acts, use methamphetamine or other illegal drugs alone or combined with alcohol, during this ATF operation using the excuse that "he was expected" to do these things as an HAMC member.
12

On October 27, 2003 upon information and belief (the matter is sealed from the public), a complaint and then indictment were filed in Maricopa County Superior Court charging Michael Kramer with the murder of Cynthia Garcia. On November 10, 2003 Kramer pled guilty to manslaughter for the death of Cynthia Garcia pursuant to a plea agreement with Maricopa County Attorney's office. Pursuant to the plea agreement, Kramer will be granted probation in exchange for his cooperation with law enforcement and the Maricopa County Attorney's Office. On November 10, 2003 Kramer again pled guilty in the District of Arizona to an Information charging him with violating 18 USC §1959(a)(1), violent crime in aid of racketeering pursuant to a plea agreement with the United States Attorney. The plea agreement binds Kramer and the United States

It is important to note that Kramer was the senior member of the HAMC present during the commission of the offense and also his subsequent attempts to destroy evidence of the crimes. 12 This certainly undermines ATF's claim of it did not know of Kramer's unauthorized drug use during the investigation. According to many witnesses, during this time period, Kramer was a consistent user of methamphetamine and/or cocaine combined with excessive use of alcohol.
11

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Attorney's Office to a "sentence of five years probation so as long as the CI cooperates." On information and belief, Kramer remains out of custody and in a government witness protection program. On November 18, 2003 a grand jury indicted Kevin Augustiniak and Paul Eischeid for the murder of Cynthia Garcia in violation of 18 USC §1959, a death eligible offense. The government subsequently decided it would not seek the death penalty against Augustiniak which was withdrawn on or about February 8, 2005. On December 2, 2003 a complaint and then an indictment was filed against Daniel Joseph Fabricant in violation of 21USC 841(a) and 846 in the Federal District Court of California, CR 03-1257-RL. All of the evidence was a result of Kramer's activities and recordings of contacts with Fabricant. On December 3, 2003, two years after the murder took place and at least 9 months after ATF knew that Kramer committed this murder, the City of Tempe Police Department, Maricopa County Sheriff's Office and AFT executed federal search warrants allegedly to finally collect evidence regarding the murder at the following locations:13 3310 North Saint Elisa, Mesa, Arizona ­ residence of Paul Eischeid Vehicle belonging to Paul Eisched 153 S. Lebaron, Mesa, Arizona ­ the HAMC Mesa Chapter clubhouse Agent Ciccone signed the affidavit in support of the search warrants. The affidavit also sought general HAMC club items, financial records and other records, clearly items that had nothing to do with an alleged murder. In late February, 2004, the government provided defense counsel with Maricopa County Sheriff's report, DR 2001-30095, ATF reports of investigations from the LA Division ROIS 1, 9, 18, 66 and 91. It also provided partial transcripts of the recorded conversations allegedly between CI Kramer and Eischeid, Augustiniak and Hyder. In late March or April 2004 the government disclosed to the defense the video recording of Kramer and Eischeid (ES8) and the audio recordings of Kramer, Dunham, Eischeid, and Augustiniak (ES7). After numerous requests, it finally disclosed ES6 on July 5, 2005. It has not disclosed any of the other recordings, surveillance logs or any other recordings utilized on March 15 and 16, 2002.

13

PHOENIX, ROI 76, 785040-02-0049.
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On July 13, 2004 ATF Agent Ciccone took the stand as government witness in USA v. Daniel Fabricant in Los Angeles, California, Agent Ciccone testified among other things: Michael Kramer is a paid ATF informant and was working for the ATF for approximately 2½ years (from December 2001 to August, 2003) He met Michael Kramer in later November 2001 and signed him up about three weeks later (December 2001). There is a report regarding his agreement and there is an agreement that Kramer signed. There were also limited immunity agreements. Kramer was his responsibility. When he determined that Kramer participated in the murders (November, 2002), a decision was made by ATF and the United States Attorneys in California and Arizona to continue to use Kramer as an informant. He became aware (but does not say when) that Kramer was violating the rules of his informant agreement including but not limited to Kramer's constant use of methamphetamine, his providing of drugs to others, his excessive overuse of alcohol and participation in crimes of violence (during the ATF contract period). In January 2003, the United State government gave Kramer a "document" giving Kramer any protection regarding his complicity in the murder. In February 2003, the United States Government gave Kramer a "letter" during a debriefing. This is the first time that Kramer told the full story of his participation in the murder of Cynthia Garcia. The investigation and informant contract were completed before Kramer took the plea agreements (in the State of and District of Arizona). After the plea agreements, Kramer did not work in any ATF investigations. He had hundreds of "debriefings" with Kramer over the course of the investigation. Kramer was paid over $100,000 for operating expenses and $35,000 -$30,000 for subsistence. Michael Kramer, the informant in the Fabricant case, pled guilty to manslaughter in the State of Arizona and in Arizona Federal court of committing an act of violence in aid of racketeering. On July 14 and 15, 2004, Michael Kramer took the stand as a government witness in USA v. Daniel Fabricant in Los Angeles, California federal district court. Mr. Michael Kemp from the Arizona United

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States Attorney's office was present for this testimony as well as Lloyd Tate and Tonya McMath, attorneys for Paul Eischeid in the subject indictment. Michael Kramer's testimony under oath included:14 In October 2001, he participated in a murder in Arizona and he was a full-fledged HAMC member at that time. A few weeks later he became an informant for the ATF. In November 2001 at the time he became an ATF informant, he was a member of the HAMC Mesa charter. He did not "come clean" about his participation in the murder until February 2003. In February, 2003 the government promised him that he would not be prosecuted for "felon in possession of a gun" that Kramer sold to an undercover cop in 1997 or 1998. He didn't tell ATF about his participation in the murder prior to February, 2003 because he "didn't have any blocks up or cushions, you know"----"something to cover me." As he went along "he got more comfortable [with lying] as [he] went" [working for the ATF]. He worked for the ATF as an informant until August 2003. He used methamphetamine throughout the time he was an informant but did not tell the ATF about his methamphetamine use until after the investigation was over in August 2003. He violated the ATF informant agreement by participating in fights, beating a man with a baseball bat (simply because he "disrespected" him,) buying and selling illegal drugs because he decided "the rules (of the ATF agreement) did not apply to him." Kramer admitted that on one occasion a guy was disrespectful so he was dragged outside a bar where Kramer participated in kicking him while the guy was begging and pleading for his life. Kramer admitted laughing about it saying that "he [the victim] was screaming like a little bitch." 15 In August, 2003 he got involved in another fight because a guy "insulted him." The Hells Angels did not have a requirement that a member must commit a felony to be in the club The Garcia murder was not first degree premeditated murder.

The court granted the government's motion in limine that prevented the defense from cross-examining Kramer about the facts of the murder. 15This was recorded by Kramer on March 29, 2002. Kramer said after the beating, "You [the victim] better not have bled on my boots." Kramer also stated that he "only got one kick in" (referring to the victim) and "I went to kick him once and I missed him. The second time, I might have got a rib shot." A person with Kramer commented that Kramer looked drunk.
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He knew that specifically Ciccone was interested in [HAMC members] of the San Fernando Valley Charter and California Chapters and "he [Kramer] did what he could [as an informant] to make John [Ciccone] happy." He had "daily" contact with Agent Ciccone but admits that "he learned by trial and error" on at least one occasion, he could get away with committing criminal acts because Agent Ciccone didn't follow him every day. He did not tell ATF of his criminal conduct while he was an informant but "brought it out" after he was done with his informant contract in August, 2003 and after "everything went sideways" [after August 2003]. He doesn't remember if he told ATF about his own illegal activities before or after his plea agreements were reached.
16

He pled guilty in November 2003 in Arizona to a federal murder in aid of racketeering pursuant to a plea agreement and a state charge manslaughter arising from the same conduct but has not been sentenced in either case (as of the date of his testimony). The government agreed to recommend a five-year sentence of probation and concurrent sentences. As of this date, there is little physical evidence that links Augustiniak to the murder of Cynthia Garcia. As for the availability of other witnesses, Rick Hyder is deceased (May, 2002) because of a suspicious car/motorcycle accident involving Michael Kramer. Eischeid has absconded from federal custody. It is unknown whether Dave Lemoine, Gary Dunham, or others have been offered deals by the government. Thus, the only remaining percipient witness to the murder is Michael Kramer and his story is crucial to the government's case. IV. THE REQUESTED DOCUMENTS ARE MATERIAL TO THE DEFENSE Consistent with established principles of due process, the Government may not suppress evidence

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favorable to an accused that is "material either to guilt or punishment." Brady v. Maryland, 373 U.S. 83, 87(1963); Rovario v. United States, 353 U.S. 53, 60-61(1957). Evidence, whether documentary or testimonial, is material if it would tend to exculpate a defendant or reduce the penalty he potentially faces; Brady Id. at 88, create a reasonable doubt as to the defendant's guilt, see United States v. Agurs, 427 U.S.

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972 (1976), or undermine confidence in the outcome of the trial if suppressed, see United States v. Bagley, 473 U.S. 667, 679 (1985). When analyzing materiality, a court should focus first on the indictment which sets out the issues to which the defendant's theory of the case must respond. See United States v. Poindexter, 727 F.Supp. 1470, 1473 (D.D.C.1989), rev'd on other grounds, 951 F.2d 369 (D.C.Cir.1991). A document is material if it is "relevant to the development of a possible defense." United States v. Mandel, 914 F.2d 1215, 1219 (9th Cir.1990); United States v. Olano, 62 F.3d 1180, 1203 (9th Cir.1995), or if it will enable the accused to "substantially alter the quantum of proof in his favor," United States v. Marshall, 532 F.2d 1279, 1285 (9th Cir.1976) (citations omitted). As noted in United States v. Liquid Sugars, Inc., 158 F.R.D. 466, 471 (E.D. Cal 1994): This court defines "material information" for Rule 16(a)(1)(C) purposes as that information, not otherwise provided for or precluded by discovery rules, which is significantly helpful to an understanding of important inculpatory or exculpatory evidence. "`The materiality requirement typically 'is not a heavy burden,' rather, evidence is material as long as there is a strong indication that ... [the evidence] will 'play an important role in uncovering admissible evidence, aiding witness preparation, corroborating testimony, or assisting impeachment or rebuttal.' " United States v. Jackson, 850 F.Supp. 1481, 1503 (D.Kan.1994) quoting United States v. Lloyd, 992 F.2d 348, 351 (D.C.Cir.1993) (emphasis added). [FN4] For example, if the government plans to use the results of scientific tests as evidence, data and reports which directly underlie those results are generally important to an understanding of the evidence. FN4. The court has included both inculpatory and exculpatory information in its definition. There is no justifiable reason to withhold otherwise producible information or evidence simply because it is inculpatory--such information may be as "material" to the defense as exculpatory information. Defendants have a right to analyze and prepare for facially damning evidence. Although safety and burden considerations, at times, justify the withholding of discovery information, there is entirely too much "hide-the-ball" in criminal discovery with respect to easily producible documents. (Emphasis added). All the items sought will aid the defense in discovering facts whether inculpatory or exculpatory relating to the charges, discover additional witnesses, uncovering admissible evidence, and corroborating testimony of witnesses. One of the informants in this case is the same Michael Kramer who testified under oath in USA V. Fabricant as to his participation in the murder that is the subject of this indictment, therefore the government has waived any privilege of non-disclosure as there is no general interest in maintaining the informant's confidentiality. Alternatively, if the privilege still exists or there is an "ongoing investigation,"
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each must give way to the defendant's right to fair trial because: 1) the informants were active participants in the alleged murder or events; 2) Michael Kramer is the only available witness to the murder; 3) the informant's motive, criminal activity, drug use, alcohol use and other violent conduct before during and after the investigation is relevant to his credibility, reliability and veracity; 4) Michael Kramer's account of the murder is material to defendant's ability to fully explore all available defenses prior to trial and to preserve his right to a fair trial; 5) the government's stipulation that Michael Kramer will received five years probation as "long as he cooperates" against the Hells Angels is material to his incentive to provide the ATF with information about the HAMC's alleged racketeering activities.17 For example, Michael Kramer's activities were allegedly monitored on almost a daily basis by the ATF. The government's selective disclosure of OD reports is telling about what it seeks to hide from the defense, particularly since Michael Kramer used methamphetamine and drank excessively during this entire investigation. So far, the government has disclosed the following reports (some are heavily redacted):18

Agent Ciccone statements from the Search Warrant Affidavit of the Mesa HAMC clubhouse in December, 2003 The defense is requesting unredacted copies of disclosed reports (mostly related to Fabricant) that have been disclosed by the government. The government stated that the Agent Ciccone provided these reports that have been heavily redacted. Since the Fabricant trial is over, there is no need for redacted reports.
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MONTH OF KRAMER' ATF ACTIVITIES 11/01 12/01 1/02 2/02 3/02 4/02 5/02 6/02 7/8/02 8/02 9/02 10/02 11/02 12/02 1/03 2/03 3/03 4/03 5/03 6/03 7/03 8/03 9/03 10/03 11/03 12/03

OD ROI DISCLOSED BY GOVERNMENT 1 2 4,6,7,8 9,11,66 12,18,20,21,23,24 26, 27,129 28,30,32 34,35 39 38,130 48,55,5719 58,20,66 76 78,82 84,86,87, 91 88,89, 90,93,96,97 98, 99,102, 104 108 114,115 120,121, 123 129,130 142,147,150,154 155-168 not disclosed

OD ROI NOT DISCLOSED

3 5 10 13,14,15,16,17,19,22,25 29, 31,33 36-37, NONE 40,41-47 49,50-54,56 59-65 67-75, 77 79-81,83 85 92,94,95 100-101,103,105-107, 109-113 116-119 122 124-128 131-141 143-146,148-149,151-153

The government has selectively disclosed reports and audio recordings that it believes will support the RICO and VCAR charges and will not disclose additional reports and recordings that: 1) disclose Kramer's or other informants' criminal activities; 2) establish a lack of nexus between alleged criminal acts captured by these informants for the RICO charge; 3) establish a lack of continuity of criminal activity by HAMC members; 4) reveal informants' ongoing activities during this multi-state HAMC investigation that presumably are the subjects of "the subject of an ongoing investigation." First the government has disclosed reports regarding other HAMC members not indicted in any state. Second, many of these reports

19 20

This ROI has to do with the SFV HAMC chapter. It is heavily redacted. These ROIS refers to CI conversations with SFV members on 11/5/02 and 11/6/02.
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that it initially refused to disclose or just disclosed in July 2005 have to do with the Phoenix Charter members that are part of this indictment. The disclosure of certain reports and the withholding of other reports by month of Kramer's ATF "activities" establishes that the government and/or the ATF is simply withholding evidence from the defense that could lead to admissible evidence or witnesses that support its theory that the HAMC is not a criminal enterprise, the alleged predicate or substantive acts even if true, were not done for or on behalf of or in furtherance of a criminal enterprise. In this case, the ATF claims it did not ask about the murder and Kramer did not reveal that he was a participant in the murder until February 28, 2003 16 months after the murder. What Kramer did for the ATF within that time frame and after his deal was struck with the federal government is relevant and material to the defense. The question is whether the government really has an "ongoing investigation" that merits the non-disclosure of relevant activities of Mr. Kramer that are directly tied to his "cooperation ATF contract" which promises him five years probation for a murder in both state and federal court. Further, Agent Ciccone testified that Kramer's contract and/or usefulness as an ATF informant were terminated by ATF by August 2003 and he has already testified in open court about his informant activities. Although it is well established that the government has a qualified privilege to prevent public disclosure of investigative files and related material prepared in the course of an ongoing criminal investigation, to invoke the privilege, however, it must be established that the materials at issue relate to a bona fide, ongoing, law enforcement investigation. In Scanner v. United States, 406 F.2d 716, 719 (5th Cir. 1969), the Fifth Circuit has noted that "while tendency of a criminal investigation is a reason for denying a discovery of investigation reports, this privilege would not apply indefinitely . . . ." For example, if the government claims that HAMC SFV is the target of an ongoing investigation it must inform this Court that: 1) a search warrant was executed in December 2003 as to all targeted SFV members including Tomas Erickson and; 2) although the search warrant affidavit has not been disclosed, it appears that one of the "facts" alleged as probable cause for this warrant was that Kramer told Ciccone that Mike Cardenas was kidnapped by the SUV HAMC and his bike

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stolen. Mike Cardenas denies that this ever happened. See Exhibit 2 and 3. Upon information and belief, for that reason alone, the government has not filed any charges arising out of the many search warrants executed against members of the SFV HAMC. Again, the government is withholding certain search warrant affidavits and warrants that contain probable cause statements based on "credible and factual" information provided by Kramer. This is one example coupled with Michael Kramer's admissions of his own criminal conduct while acting as an ATF agent that is directly relevant to Kramer's ability to be truthful as well as his competency. It cannot be seriously disputed that the informant's version of the murder provided to the government 16 months after he became an ATF informant is not relevant and helpful to the defense. It is the government's theory that Eischeid and Augustiniak participated in the murder with Michael Kramer in furtherance and on behalf of the HAMC. It is the defense theory that Kramer is protecting certain other individuals who actually participated in the murder. Without any significant forensic evidence so far, its entire case depends on Kramer's version of the events which directly calls into question his competency, credibility and reliability in order for the government to convict Augustiniak for the murder of Garcia. A recent 9th circuit case Silva v Brown, 2005 WL 1732765 (9th Cir. 2005) is strikingly similar to this case. In that case, the government failed to disclose a deal with the main witness to a murder that the witness not undergo a psychiatric evaluation before testifying against the defendant. The court reversed the conviction citing the well known Kyles rule regarding the suppression of material evidence focusing on the role of the government's main witness (Thomas) in the murder trial: Impeachment evidence is especially likely to be material when it impugns the testimony of a witness who is critical to the prosecution's case. See, e.g., Banks, 540 U.S. at 700 (holding that impeachment evidence was material where it pertained to a witness whose testimony was "crucial to the prosecution" and was in the prosecution's own judgment "of the utmost significance"); Carriger v. Stewart, 132 F.3d 463, 480 (9th Cir.1997) (en banc) (holding that impeachment evidence was material where it pertained to "the prosecution's star witness"); see also East v. Johnson, 123 F.3d 235, 239 (5th Cir.1997) ( "[W]hen the withheld evidence would seriously undermine the testimony of a key witness on an essential issue or there is no strong corroboration, the withheld evidence has been found to be material." (Emphasis added) (Citation and internal quotation marks omitted)). *****'
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As we have previously recognized, evidence that calls into question a witness's competence to testify is powerful impeachment material. See, e.g., Benn v. Lambert, 283 F.3d 1040, 1054, 1056 (9th Cir.2002) (holding that undisclosed evidence of a crucial government witness's drug use during the defendant's trial was material because it would "reflect on [that witness's] competence and credibility as a witness"); United States v. Service Deli, Inc., 151 F.3d 938, 942-44 (9th Cir.1998) (holding that a set of handwritten notes taken by a government attorney during an interview with the government's key witness was material "most significantly" because the notes included a statement by the witness that he had sustained a stroke that affected his memory). Further, these reports, audios and videos will provide material evidence for the defense as to whether the HAMC was acting as a criminal enterprise versus individuals committed independent criminal offenses during the informant's contact with them. The government must prove an enterprise and a pattern of racketeering independently from each other for each RICO and VCAR offense. It appears that the government is hiding at least 100 different contacts with HAMC members that could refute its theory that the HAMC is a criminal enterprise or establish that Michael Kramer, Rudy Kramer, or Pops were involved in their own independent criminal activity. Its refusal to provide the known ad