Free Response - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona Timothy T. Duax Assistant U.S. Attorney Arizona State Bar No. 012694 Two Renaissance Squ are 40 North Central Avenue Phoenix, Arizona 85004-4408 Telephone: (602) 514-7500 [email protected]

UNITED STATES DISTRICT COURT 7 DISTRICT OF ARIZONA 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The United States, through counsel undersigned, hereby responds to the Defense Memorandum Re: Court Order Dated 7/11/05 Discovery Requests. The United States believes discovery of the bulk of material deemed "material" by the defense, in particular the investigative reports and surveillance logs from Operation Dequiallo, is outside the ambit of Rule 16(a)(1)(E)(1) of the Federal Rules of Criminal Procedure, being otherwise precluded by Rule 16(a)(2) of the Federal Rules of Criminal Procedure. Similarly, another large portion of the information deemed "material" by the defense, the statements of Michael Kramer, is outside the scope of Rule 16(a)(1)(E)(1), being otherwise precluded (until Kramer has testified on direct examination) by operation of 18 U.S.C. Section 3500 et seq. The United States does not dispute the materiality of plea agreements, contracts, and documents that set forth benefits provided to informants that will be called as witnesses by the government, and has already agreed to produce such items to the defense. However, the United United States of America, CR 03-1167-PHX-DGC Plaintiff, v. Kevin J. Augustiniak Defendant RESPONSE TO DEFENSE MEMORANDUM RE: COURT ORDER DATED 7/11/05 DISCOVERY REQUESTS

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States considers the defense request for "informant files' too general and consequently, not material. With respect to any electronic recordings made by Michael Kramer, the portions of the recordings that constitute Kramer's statements are outside the scope of Rule 16(a)(1)(E)(1), and discovery of such statements is governed by the Jencks Act. The defense has only sought such recordings for the purpose of obtaining Kramer's statements, and has not made a showing that the statements of the other persons in such recordings are material. Finally, with respect to the search warrants from Operation Dequiallo, again the stated purpose of the defense in obtaining the search warrants is to evaluate the truthfulness of the representations made by Michael Kramer in support of the search warrant affidavits. No other particularized statement of materiality is provided by the defense. As the discovery of the statements of Kramer is governed by the Jencks Act, and there has been no showing of materiality as to any other content, the defense has not shown the search warrants are discoverable. The position of the United States is set forth more completely in the attached Memorandum of Points and Authorities. Respectfully submitted this 2nd day of September, 2005. PAUL K. CHARLTON United States Attorney District of Arizona /S/ Timothy T. Duax TIMOTHY T. DUAX Assistant United States Attorney

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MEMO RANDUM OF POINTS AND AUTHORITIES In keeping with this Court's request that the government's response be organized by the specific numbered items addressed in the defense submission, the government has organized its response to address the defense items as listed on pages 7 and 8 of the defense memorandum. I. Items Relating to Confidential Informants Items 14-40 On the Discovery Matrix A. Informant files. The government believes this request is overbroad. A general description of the information sought will not suffice to establish materiality. United States v.Bergonzi, 216 F.R.D. 487, 501 (N.D.Cal.2003). In addition, "requests which are designed to generally cast for impeachment material...are not material." United States v. Liquid Sugars, Inc., 158 F.R.D.466, 472 (E.D.Cal.1994). "...the discovery rules do not require "open file" discovery with the defendant being allowed to browse at will through the prosecution files." Id. at 471. B. Plea agreements. The government agrees that the plea agreements for testifying government informants CI 376 CI 790 and CI 604 are material, and has agreed to provide such to the defense. However, the timing of such disclosure remains in dispute, and is the subject of other briefings submitted to this Court. C. Transcripts of Plea Agreements To the extent the government has transcripts of plea agreements for testifying government informants CI 376 CI 790 and CI 604, the government agrees to produce the same. However, the timing of said disclosure remains in dispute. D. Contract for Informants CI 376 CI 790 and CI 604. To the extent contracts between the aforem entioned informants and the government exist, the government agrees they are material and will produce them. However, the timing of said disclosure remains in dispute. E. Benefits for Informants CI 376 CI 790 and CI 604. To the extent documents exist, in the possession of the government, that evidence 3

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benefits received by CI 376 CI 790 and CI 604, the government agrees such evidence is material, and will disclose such evidence. However, the timing of the disclosure is still in dispute. II.Undisclosed Reports, Surveillance Logs and Recordings From Operation Dequiallo, Matrix Items 50, 52, 56, 59-64, 66-68, 70, 72, 75, 76, 78-85, 87-92, 97-119, 121, 125 and 127182. A. Reports The definition of materiality, material information for Rule 16(a)(1)(E)(1) purposes, is that information, not otherwise provided for or precluded by discovery rules, which is significantly helpful to an understanding of important inculpatory or exculpatory evidence. Id. at 471. The phrase "not otherwise provided for or precluded by discovery rules" is an important one with respect to the defense request, because the discovery of agent's reports is precluded by Rule 16(a)(2). To read Rule 16(a)(1)(E)(1) so as to include investigative reports would render Rule 16(a)(2) a nullity, a result inconsistent with the purpose of the Federal Rules of Criminal Procedure. Another case that supports the definition of materiality set for in Liquid Sugars is Palermo v. United States, 360 U.S. 343 (1959). The purpose of the Act, its fair reading and its overwhelming legislative history compel us to hold that statements of a government witness made to an agent of the Government which cannot be produced under the terms of 18 U.S.C. § 3500, 18 U.S.C.A. § 3500, cannot be produced at all. Palermo, 360 U.S. at 351. We think it consistent with this legislative history, [FN9] and with the generally restrictive terms of the statutory provision, to require that summaries of an oral statement which evidence substantial selection of material, or which were prepared after the interview without the aid of complete notes, and hence rest on the memory of the agent, are not to be produced. Neither, of course, are statements which contain the agent's interpretations or impressions. Palermo, 360 U.S. at 352-353. The United States Supreme Court continued and stated, "Thus the Government will not produce documents clearly beyond the reach of the statute," meaning 18 U.S.C. § 3500. Palermo, 360 U.S. at 354. The Act's major concern is with limiting and regulating defense access to government papers, and it is designed to deny such access to those statements which do not satisfy the requirements of (e), or do not relate to the subject matter of the witness' testimony. Palermo, 360 U.S. at 354. 4

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The suggestion that the detailed statutory procedures restrict only the production of the type of statem ent described in subsection (e), leaving all other statements, e.g., nonverbatim, non-contemporaneous records of oral statements, to be produced under preexisting rules of procedure as if the statute had not been passed at all, flouts the whole history and purpose of the enactment. It would mock Congress to attribute to it an intention to surround the production of the carefully restricted and most trustworthy class of statements with detailed procedural safeguards, while allowing more dubious and less reliable documents a more favored legal status, free from safeguards in the tournament of trials. Palermo, 360 U.S. at 349-350. Clearly, the United States Supreme Court has held in Palermo that reports of agents that are not considered Jencks Act "statements" are not to be discoverable to the defense. B. Surveillance Logs The United States takes the same position with respect to surveillance logs as it does with reports. C. Recordings Other than the statements of Michael Kramer, which the defendant seeks to use for impeachment, the defense has not specifically identified how the statements of other individuals on the recordings would be helpful to the defense. Consequently with respect to those portions of the recordings involving individuals other than Michael Kramer, the defense has failed to show materiality. To the extent the other individuals on the recordings are defendants in the present case, the government agrees it must produce said statements to their makers. To the extent such recordings are the statements of Michael Kramer, the United States submits discovery of such statements is governed by the Jencks Act. III. Electronic Recordings M ade by Informant M ichael Kramer in Operation Dequaillo Matrix Items 187,188,189-192,194-213,221-252,257-269. Again, to the extent the recordings are of Michael Kramer's statements, they are discoverable in accord with the Jencks Act. To the extent the statements recorded are of defendants in this case, they will be produced, and to the extent they are of other individuals, the defense has not made the requisite showing of materiality. They have not shown how such statements of other individuals would aid the defense, or shed light on any issue in the present

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case, save perhaps for impeachment of Michael Kramer. Requests which generally cast for impeachment material are not material. Liquid Sugars, 158 F.R.D .at 472. There has been no particularized showing of how Kramer's statements would be impeached by the statements of any other person who was recorded. Consequently, and consistent with the holding in United States v. Santiago, 46 F.3d. 885, 894-895 (9 th Cir. 1995), the defense has failed to show materiality of non-Kramer, non-defendant recorded statements. IV.Search Warrants From Operation Dequaillo. Matrix Item 460. The only purpose specifically stated by the defense with respect to the above requested warrants is to impeach Michael Kramer, and pursuant to Palermo, Michael Kramer's statements are discoverable by operation of the Jencks Act, and not Rule 16(a)(1)(E)(1). V. The Non-Impeachment Purposes Listed By the Defense Are Too Vague. The defense states, at page 24 of its memorandum, that it believes disclosure of reports and recordings from Operation Dequaillo, an investigation focused primarily on California Hells Angels, will help establish a lack of nexus between the criminal acts of the defendants and the RICO charge in this case. It will establish a lack of continuity of criminal activity by HAMC members, and reveal informants' ongoing activities. Nowhere does the defense set forth how the reports and recordings would achieve that end. And that is a fatal flaw in the defense attempt to show the reports and recordings are material to those purposes. "These assertions, although not implausible, do not satisfy the requirement of specific facts beyond allegations, relating to materiality." United States v Santiago, citing United States v. Mandel, 914 F.2d 1215, 1219. (9 th Cir. 2000). VI. Conclusion The vast majority of the items requested by the defense are subject to other discovery rules and statutes, namely the Jencks Act and Rule 16(a)(2), and consequently, are not subject to discovery by means of Rule 16(a)(1)(E)(1) as the defense has attempted to do. Other than the specific allegations regarding the impeachment of Michael Kramer, the defense has failed to set forth with sufficient specificity how the items requested will serve a specific defense purpose. 6

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Therefore, such items are not discoverable either. The court will certainly notice that the government intends to produce some material that it believes is not discoverable. By doing so, the government is acting in an abundance of caution, and does not mean to waive its arguments as set forth herein. Respectfully submitted this 2nd day of September, 2005. PAUL K. CHARLTON United States Attorney District of Arizona /S/ Timothy T. Duax TIMOTHY T. DUAX Assistant United States Attorney

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CERTIFICATE OF SERVICE

: I hereby certify that on September 2, 2005, I electronically transmitted the attached
document to the Clerk's Office using the CM /ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected];[email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]

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