Free Motion to Dismiss Counts (Less Than All) - 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 MOTION TO DISMISS INDICTMENT OR ALTERNATIVELY, MOTION TO PRECLUDE USE OF DNA EVIDENCE AT TRIAL (EVIDENTIARY HEARING REQUESTED)

Plaintiff, vs. KEVIN J. AUGUSTINIAK Defendant.

Defendant, through counsel, moves to dismiss the indictment against Mr. Augustiniak or alternatively, preclude the government from presenting any DNA evidence at trial for the reason that it knowingly destroyed critical DNA evidence preventing Defendant from independently examining and testing said evidence in violation of the Fifth Amendment to the Untied States Constitution. This motion is supported by the attached memorandum of points and authorities. Defendant requests an evidentiary hearing on the issue of whether the government destroyed the evidence knowing of exculpatory value before it was destroyed and whether the government acted in bad faith in failing to preserve the potentially useful evidence. I. STATEMENT OF FACTS Defendant provides the following facts to establish that the federal government, the state government and DPS, an agency of both the state and federal government, worked together and were well aware of the critical significance of any DNA evidence in this case from as early as December, 2001 particularly since their chief witness ­paid informant Michael Kramer participated in the murder and is the only available witness to the murder.

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On or about October 31, 2001 Maricopa County Sheriff's office located the body of Cynthia Garcia in the area of Bush Highway, Maricopa County, Arizona. Detective Brad Dunn is the case agent for this investigation. Detective Dunn along with other MSCO officers, collected physical evidence from the location as well as the body of Cynthia Garcia. On or about November 26, 2001 ATF agents Ciccone and Hamilton conducted an interview of CI78400-376, Michael Kramer. According to ROI 1, Case number 784015-02-006 (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 but he testified that he alerted Agent Ciccone about a hypothetical murder that took place in Arizona. On or about November 30,2001, Detective Dunn submitted evidentiary items 24-36 to the Arizona Department of Public Safety (DPS) crime lab for "inspect[ion] [of] items for trace and foreign specimens and collect for possible comparisons with future suspects." On March 15, 2002, according to ROI 9, Kramer and ATF SA Ciccone met at the CI's residence in Glendale, Arizona 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 recorded a meeting between Paul Eischeid and the CI on video (ES8) and audio. On March 16, 2002, ATF conducted surveillance of a meeting between Mr. Augustiniak, Kramer, and Gary Dunham, a Mesa HAMC member. This meeting was audio taped by the ATF through two audio recording devices. On March 16, 2002, ATF conducted surveillance of a meeting between Richard Hyder and Kramer. The ATF provided two recording devices (ES6 and ES7) to Kramer. On March 16, 2002, Kramer provided the ATF with names of all HAMC members involved in the murder including Kevin Augustiniak, Paul Eischeid, and Richard Hyder. He did not name himself as a participant and the report does not disclose whether Kramer told ATF that he participated in the murder.

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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.1 The members are: Kevin Augustiniak, Paul Eischeid, Richard Hyder, Dennis Gilliard, and David LeMoine. He did not identify himself as a participant in this murder. On or about May 5, 2002, Richard Hyder was killed in a motorcycle accident in Stockton, California. The driver of the other vehicle involved in the "accident" was Michael Kramer. On July 11, 2002, Item #24 (sexual assault kit from Garcia) was tested for sperm and the results were negative. 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 March 15 and 16, 2002. On February 3, 2003 Detective Dunn told the DPS crime lab that he was "[w]orking w/ Tempe PD & informant." Hold off for now but will want DNA on [victim's] nails when get "s" [suspects]. RNA clothing for now." Will issue sero report" On or about February 6, 2003, DPS's scientific examination report indicated that "preliminary tests of items #25 (right fingernail fragments of Garcia and item #26 (left fingernail fragments of Garcia) were "positive for blood." DPS also indicted that it needed a "blood sample from the suspect." 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) 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

ROI 18, 784015092-006, Operation Dequiallo, Los Angeles Division
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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.2 From March through August, 2003 Kramer continued to be a paid informant for the ATF. On November 10, 2003 Informant Michael 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 five years probation in exchange for his cooperation with law enforcement and the Maricopa County Attorney's Office. On that same day (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 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 Kevin Augustiniak was indicted in Count 3, a death eligible offense for Violent Crime in Aid of Racketeering: Murder of Cynthia Garcia. The relevant paragraph provides: On or about October 27, 2001, in the District of Arizona, for the purpose of gaining entrance to and maintaining and increasing position in the HAMC, an enterprise engaged in racketeering activity, the defendants, Paul Eischeid and Kevin Augustiniak knowing that his conduct would cause death or serious physical injury, caused the death of another person, namely Cynthia Garcia, in violation of Ariz. Revised Stat. §§13-1104 (second degree murder).3

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. 3 A.R.S. § 13-1104, second degree murder; provides in part: A. A person commits second degree murder if without premeditation:
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1. The person intentionally causes the death of another person, including an unborn child or, as a result of intentionally causing the death of another person, causes the death of an unborn child; or 2. Knowing that the person's conduct will cause death or serious physical injury, the person causes the death of another person, including an unborn child or, as a result of knowingly causing the death of another person, causes the death of an unborn child; or 3. Under circumstances manifesting extreme indifference to human life, the person recklessly engages in conduct that creates a grave risk of death and thereby causes the death of another person, including an unborn child or, as a result of recklessly causing the death of another person, causes the death of an unborn child.
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In violation of 18 USC §1959(a) (1) and 18 USC §2. On January 5, 2004 pursuant to a federal search warrant for Paul Eischeid's vehicle obtained trace evidence from that vehicle (Items 818 -833) as well as DNA swabs from various areas of the vehicle (Items 834-847). MSCO also conducted chemical tests for bloodstains and reported that the "stains testing positive were items 848-852, items taken from various locations in the vehicle. In May, 2004, Detective Dunn requested DPS to examine items 813A (carpet swatch from club house) and other items from Eischeid's vehicle (items 840,848,849,850,851,852 and 818-833 (trace tape) "for DNA and Hair and compare to victim" On June 9, 2004 DPS reported to Detective Dunn that its testing revealed "no blood detected" in items 813A, 840, 848, 849, 850-852. On September 30, 2004 a superseding indictment was filed alleged the same charge against Mr. Augustiniak in Count 3 as stated above. On January 14, 2005 Detective Dunn requested DPS to "located hair from Items 818-833, Compare like samples (Items 16-19). If comparisons are found, Test for DNA match. He submitted items 818-33 (and items 16-19 (known hair samples from the victim). On January 6, 2005 Ms. Gitre, Mr. Kemp, and Detective Dunn met to go over the evidence that had been disclosed and not disclosed. At that time, a discussion was held about the destruction of evidence particularly in a death penalty case. At that time, Mr. Kemp had not known that the larger portion of the carpet seized from the Mesa HAMC clubhouse had been destroyed (per ATF instruction). However, he assured that no other evidence in this case would be destroyed pending this litigation. On January 19, 2005, a second superseding indictment was filed. The government added additional charges including RICO, RICO conspiracy, Violent Crime in Aid of Racketeering: Kidnapping of Cynthia Garcia in violation of A.R.S. §1301304(3)4and elevated the charge of murder of Garcia from second degree murder to premeditated murder even though Mr. Kramer was only charged with second degree murder and pled to manslaughter in the state court.5

A.R.S. § 13-1304(3) provides: A. A person commits kidnapping by knowingly restraining another person with the intent to: 3. Inflict death, physical injury or a sexual offense on the victim, or to otherwise aid in the commission of a felony; or
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A. A person commits first degree murder if:
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On February 8, 2005 the government filed its notice of intent not to seek the death penalty against Mr. Augustiniak. In February, 2005 the government requested and the defense agreed to provide DNA swabs from the defendant Kevin Augustiniak. The defense requested and the government agreed to maintain samples of all DNA collected for independent testing by the defense. On March 7, 2005 AUSA Vercauteran called the DPS crime lab and requested DNA analysis for this case. On March 8, 2005 Detective Dunn spoke to criminalist Warnock about the hair comparisons. He was told that because the tape lifts from [Eischeid's] vehicle were done over 1 year after the incident and the vehicle changed ownership during that time" without exclusionary hairs from all the people who had ridden in the vehicle, hair comparisons could not be performed. Detective Dunn requested and received a written explanation from the crime lab to give to government. On March 28, 2005 defense counsel wrote to the government about disclosure of evidence in this case including any DNA evidence. She specifically notes that she requested disclosure of DNA evidence for independent testing. On April 4, 2005 Detective Dunn called the DPS crime lab and told them he needs DNA on the [Garcia's] fingernails. He was told "we would need to consume ­also need to get victim std here." That very same day, Detective Dunn called DPS again and told them "per CA Bob Schulz, OK to consume fingernails.6 On April12, 2005 Criminalist Warnock called Detective Dunn and told him there were problems with the DNA testing. She stated that he was not to package items (#900-#905 ­buccal swabs of Augustiniak and Kramer] in plastic. "Will call to let him know if need new stds. [From Augustiniak]." On April 14, 2005 Criminalist Dawn Warnock called Detective Dunn and "told him getting predominately Female DNA from fingernails, not enough male DNA for comparison ­could go for YSTRS

1. Intending or knowing that the person's conduct will cause death, the person causes the death of another person, including an unborn child, with premeditation or, as a result of causing the death of another person with premeditation, causes the death of an unborn child. 2. Acting either alone or with one or more other persons the person commits or attempts to commit ....kidnapping under § 13-1304......, 6 Bob Schutz is an Assistant Maricopa County Attorney, Homicide Division. He handled the complaint and plea of Michael Kramer to the murder of Cynthia Garcia.
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(he will check w/atty on that); suspect stds. Not suitable ­moot for now-would need new stds if YSTR testing requested; #36 [blood sample from victim] not suitable-asked him to resubmit #24 (SCEK) [sexual assault kit from victim] so can use swabs from there as victim's std--he will do so. On April 25, 2005 Ms. Warnock left a message for Detective Dunn regarding submitting item #24. On that same day, Detective Dunn left a message for Warnock that it should be here on Friday. On April 28, 2005 DPS examined items #16 (paper envelope containing a large mass of hair and plant debris), #818 (three clear plastic sheet of tape lifts from Eischeid's vehicle trunk interior) and #832 (three clear plastic sheets of tape lifts from Eischeid's vehicle trunk interior). On April 29, 2005 Detective Dunn submitted to DPS the following items for testing: #24 #25 #26 #27 #28 #900 #901 #902 #903 #904 #905 Sexual assault kit form victim Finger nail clippings from right hand (victim) Finger nail clipping from left hand (victim) Trace from right wrist hand (victim) Trace from Left Wrist/hand (victim) Buccal swab ­ left cheek (Augustiniak) Buccal swab ­ right cheek (Augustiniak Buccal swab- left cheek (Kramer) Buccal swab ­ right cheek (Kramer) Buccal swab ­upper lip (Kramer) Buccal swab ­ lower lip (Kramer)

In early May, 2005, the government requested that the defense agree to a second buccal swabbing of the defendant because the first swabs were no good for testing. The defense agreed and again requested that independent samples of all DNA collected by maintained for independent testing by the defense. The government agreed. On May 3, 2005, DPS concluded its examination of items #16 (paper envelope containing a large mass of hair and plant debris), #818 (three clear plastic sheet of tape lifts from Eischeid's vehicle trunk interior) and #832 (three clear plastic sheets of tape lifts from Eischeid's vehicle trunk interior). On May 5, 2005 Detective Dunn met counsel at CCA to conduct a second DNA swabbing of the defendant. At that time, she again reiterated her request that any DNA samples taken be preserved for the

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defense for independent testing. Detective Dunn agreed and even took a second DNA swabbing of Mr. Augustiniak. On May 6, 2005 Detective Dunn submitted #900A buccal swab (presumably Augustiniak's) to DPS for DNA testing and comparison to victim's fingernail clippings... On June 10, 2005 Detective Dunn submitted #902A buccal swabs from Michael Kramer to DPS for comparison with "sample from autopsy." On May 17, 2005, DPS reported to MSCO that #818 was "not similar to those found in item #16" (paper envelope containing a large mass of hair and plant debris) and examination of items #819-831 (three clear plastic sheet of tape lifts from Eischeid's vehicle trunk interior) without "known and/or control hair samples from individuals with legitimate access to the vehicle precludes meaningful analysis of these items." On June 7, 2005 DPS reported that it had analyzed items: #24.2A (two oral swabs from Garcia, #24.9A (two vaginal swabs from Garcia), #25 (right fingernail fragments from Garcia #26 (left fingernail fragments from Garcia) #36 (Bloodstain from Garcia) #900 #902 #903 #904 #905 (Two buccal swab (Kevin Augustiniak) (Two Buccal swabs from Kramer) not analyzed (two buccal swabs from Kramer) not analyzed (one buccal swab from Kramer) not analyzed (one buccal swab from Kramer)

DPS reported that no human DNA was reported on Item #36 (Garcia bloodstain). The major of the DNA profile from Item #26 (left fingernail fragments) is a mixture. The major component matches the DNA profile from Item #24.9A (Cynthia Garcia, vaginal swabs). [I]nconclusive results or no results were obtains from Item 24.9A (Garcia vaginal swabs) for the remaining 8STR loci. On June 10, 2005 Detective Dunn delivered items #900-905 (new swabs buccal swabs) from Kevin Augustiniak and presumably additional buccal swabs from Michael Kramer.

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On June 21, 2005 DPS performed another DNA test using items: 24.9A (DNA extract from vaginal swabs from Garcia), #26 (DNA extract from left fingernails fragments), #900A (two buccal swabs from Augustiniak and #902 (DNA extract from buccal swabs from Kramer). On June 28, 2005 it reported that the minor component of the male DNA profile obtained from Item #26 matches the DNA profile from Augustiniak at 14 loci. The results for the minor component are inconclusive at DYS385 and DYS439. DPS concluded that Kramer is excluded as a contributor to the mixture. DPS retained portions of items #900A and #902A but not any evidence from which DNA could be extracted relating to Garcia. On July 14, 2005 Detective Dunn called DPS and told them" a new buccal swab on its way, discovery req. US attorney Keith Vercauteran (602-514-7621)." On July 14, 2005 Criminalist Lorraine Heath called Detective Dunn. Her notes indicate "new buccal swab from witness for Y comparison to unknown major. Defense req. discovery, Prosecutor req discovery via Dunn. ..........Prefer release of current report ­wrote subsequent report for new buccal sw which will arrive 7/15/05. In August 2005, the government disclosed a portion of the DPS file but did not include a report relating to the "new buccal swab" obtain from a "witness." To date no further request for scientific examination or results have been disclosed to the defense other than what has been listed in this motion. The defense again requests that the government be ordered to provide all requests for analysis for DNA comparison, the names of the individuals that provided the DNA samples, testing, results, and chain of custody as set forth in the Defense letter to the government dated 12/1/05. See Exhibit 1. 7

The defense has not received all the requested information from the government as of this date in order to identify, review, and challenge the actual tests used, testing techniques, protocols, contamination issues, and so forth. Thus the motion to continue that was filed on 12/13/05.
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II.

LAW AND ARGUMENT

Although the government has not confirmed or denied at this point whether there is any evidence remaining from items #25 and #26 ( Garcia fingernail fragments)or any other victim evidence suitable for DNA comparison, it appears that there it no longer exists. Therefore, it is presumed that the defense despite numerous requests and promises from the government has been and is deprived of its right to independently extract DNA from known Garcia evidence and perform independent testing.

In United States v Cooper, 983 F.2d 928, 931 (9th Cir. 2001), the court identified the three prong test for this court to evaluate the value of lost or destroyed evidence. Two Supreme Court cases set out the test we apply to determine when the government's failure to preserve evidence rises to the level of a due process violation. In California v. Trombetta, 467 U.S. 479, 489, 104 S.Ct. 2528, 2534, 81 L.Ed.2d 413 (1984), the Court held that the government violates the defendant's right to due process if the unavailable evidence possessed "exculpatory value that was apparent before the evidence was destroyed, and [is] of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means." In Arizona v. Youngblood, 488 U.S. 51, 58, 109 S.Ct. 333, 337, 102 L.Ed.2d 281 (1988), the Court added the additional requirement that the defendant demonstrate that the police acted in bad faith in failing to preserve the potentially useful evidence. See also Paradis 954 F.2d at 1488 (explaining Trombetta and Youngblood test). Youngblood 's bad faith requirement dovetails with the first part of the Trombetta test: that the exculpatory value of the evidence be apparent before its destruction. Trombetta, 467 U.S. at 489, 104 S.Ct. at 2534. The presence or absence of bad faith turns on the government's knowledge of the apparent exculpatory value of the evidence at the time it was lost or destroyed. Youngblood, 488 U.S. at 56-57 n., 109 S.Ct. at 336-337 n." From the very beginning of this prosecution, the defense informed the prosecution of its request to preserve all evidence in this case for future independent testing by the defense. The prosecution assured the defense that all efforts would be made to preserve any collected evidence. In this case, the state and federal government worked hand in hand to protect their informant Michael Kramer and knew that without forensic evidence to support Kramer's version of murder, it would be difficult to prove that other individuals, including Augustiniak participated in this murder upon only the self-serving statements of a paid informant murderer particularly in the circumstances that Kramer did not tell and ATF did not ask if Kramer participated in the "hypothetical murder" for approximately 15 months after Kramer became a paid ATF informant which make was his version of the murder inherently suspect. Based on the length of this case and the time that each agency had to conduct its investigation, the allegation of a death eligible offense, requests by the defense to preserve evidence and the intertwined investigation on both the state and
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federal levels, it cannot be denied that each agency involved knew of the potentially exculpatory value of the DNA evidence before it was destroyed. Each agency also knew (because of the intentional indictment delay for their own self-serving reasons) that the defense would not be able to obtain comparable evidence by other reasonably available means. The government may argue that Detective Dunn through the state destroyed the evidence and therefore, it had nothing to do with that decision. First, the federal government initiated this investigation and knew that Michael Kramer participated in Garcia murder. DPS was aware of the pending federal case based on its telephone calls with AUSA Vercauteran. Detective Dunn was aware of Michael Kramer's involvement from at least February, 2003 and had contact with AUSA Kemp and Vercauteran during this pending proceeding. Not only was the state involved from the beginning with the federal government, ATF it also involved many state agencies including ­Tempe, Mesa, MSCO and DPS police departments knew of Kramer's undercover operation for the ATF. Second, from the above facts, Detective Dunn was working for both the federal and state governments and he knew that Bob Schutz as a state prosecutor was only working with the federal prosecutors as to Michael Kramer for the simple reason there was no pending indictment in state court against Augustiniak or Eischeid. Despite his undeniable involvement and participation in the federal prosecution, Detective Dunn sought "permission" from State attorney Schutz to destroy the only Garcia evidence available for defense DNA testing. Whether he also obtained permission from the federal government remains to be seen from an evidentiary hearing. Detective Dunn told DPS it was okay to destroy the only Garcia evidence available for DNA testing knowing full well that: 1) there was no state prosecution pending; 2) the federal prosecution had been pending for over 30 months; 3) he was personally informed by the defense counsel and presumably the government in January, 2005 not to destroy any evidence in this case 4) he knew since at least February, 2003 that Michael Kramer was involved in this murder and 5) based on his repeated requests for testing, he knew the evidentiary value of DNA forensic testing in this case. III. CONCLUSION Based on the above, Defendant moves to dismiss the indictment or alternatively moves to preclude the government from presenting any DNA evidence at trial. If necessary to determine the government's knowledge and well as participation in the destruction of critical DNA evidence, Defendant further requests that this court schedule an evidentiary hearing. RESPECTFULLY SUBMITTED on December 14, 2005.
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PATRICIA A. GITRE PLC /s/Patricia A. Gitre Attorney for Defendant Kevin Augustiniak ORIGINAL filed electronically and copies of the foregoing Delivered via electronically or by email on 12/14/2005 Clerk of the Court Judge David G. Campbell Judge of the U.S. District Court Sandra Day O'Connor United States Courthouse 401 West Washington Street Phoenix, Arizona 85003 Tim Duax Keith Vercauteran 2 Renaissance Square 40 N. Central, Suite 1200 Phoenix AZ 85004-4408 Facsimile: 602-773-7043 All Defense Counsel /s/ Patricia A. Gitre

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