Free Other Notice - 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 [email protected] 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 DEFENDANT'S OBJECTION TO EX PARTE PROCEEDING; REQUEST FOR PUBLIC HEARING AND FINDINGS OF FACTS AND CONCLUSIONS OF LAW

Plaintiff, vs. KEVIN J. AUGUSTINIAK Defendant.

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Defendant Kevin Augustiniak, through counsel, objects to the procedure of granting the government an ex parte proceeding to present their reasons for moving to dismiss the indictment with prejudice. Defendant incorporates the transcript from the February 28, 2006 hearing by this reference. Defendant also requests other relief as

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set forth below. I. ARGUMENT The government has moved to dismiss the indictment with prejudice. The defendant objects to the dismissal with prejudice and asserts the government is acting in bad faith in order to avoid disclosure of relevant discovery to the actual prejudice of Augustiniak. 1 The government simply argues that once the government files a motion

Defendant did not initially object to the government concession to dismiss this case with prejudice. Defendant still agrees that this case should be dismissed with prejudice. However, it appears if defendant agrees simply to the dismissal with prejudice, he gives up his right to the
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to dismiss, the court's authority ends with granting or denying the motion and it is powerless to enter impose and conditions in connection with the dismissal. TR 2/28/06, p.30, l. 25, p.31, ll.1-6. That is not the law. The court has the duty and discretion to

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deny the motion to dismiss with prejudice or grant the motion to dismiss with prejudice conditioned upon the government's compliance with this court's discovery orders. Rule 48(a) "leave of the court" has consistently been interpreted to allow the court to examine the prosecutor's motives behind a request for dismissal and to prevent the prosecution

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from "harassing defendants by indicting, dismissing, and reindicting without triggering the protections of the double jeopardy clause." In short, Rule 48(a) was enacted to provide a check on prosecutorial behavior. See Rinaldi v. United States, 434 U.S. 22, 29 n. 15(1977). The court must determine by making specific findings as to whether the government is acting in good faith. "If this court finds that the [government] is acting in

good faith in making its Rule 48(a) motion, it should grant the motion; conversely, Rule 48(a) empowers the district court to exercise its discretion in denying the motion when it specifically determines that the government is operating in bad faith." United States v. Hayden, 860 F.2d 1483, 1487 (9th Cir.1988) Evidence of prosecutorial harassment or

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that the motion is contrary to the public interest will suffice for a finding of bad faith. United States v. Salinas, 693 F.2d 348, 350, 351(5th Cir.1982).("The key factor in a determination of prosecutorial harassment is the propriety or impropriety of the Government's efforts to terminate the prosecution--the good faith or lack of good faith of

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the Government in moving to dismiss.")

non-disclosed discovery. As stated at the hearing, Defendant believes that he must object to the dismissal with prejudice in order to preserve his claim to the discovery. Transcript 2/28/06, p.41, ll.17-25.
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It is also the duty of this court to address the serious misconduct of the government in this case that and undeniably results in the undisputed prejudice to the defendant. In United States v Horn, 811, F. Supp 739, 752 (D. NH 1992) (reversed in

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part), the Court found that the government had trespassed on the constitutional rights of the defendants including their right to effective assistance of counsel and a fair trial by instructing its paralegal to make an additional copy of any discovery that the defense requested for the prosecution, not being candid with the court and failing to abide by

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the court's orders. The Court sanctioned the government concluding The misconduct of the government's lead counsel in this case was serious and resulted in prejudice to the defendants. In accordance with the principles set down in United States v. Morrison, 449 U.S. 361, 364, 101 S.Ct. 665, 667, 66 L.Ed.2d 564 (1981), it was the duty of the court to "identify and then neutralize the taint by tailoring relief appropriate in the circumstances to assure the defendant the effective assistance of counsel and a fair trial." The court considered the prejudice suffered by the defendants, the rights and interests of the government and the defendants, and the damage to the integrity of the judicial process. The court took care to craft remedies which in its opinion abate the prejudice and render the playing field level again. It was not the duty of the court under the circumstances either to penalize the government or to give the defendants an inappropriate advantage but rather to restore the relative balance between the parties and the integrity of the judicial process. In addressing the circumstances that exist, the government asks for remedies that do too little and the defendants ask for a remedy that does too much. The court is satisfied that it has struck an appropriate balance, abated the prejudice, and restored the integrity of the judicial process. 2 Much more is at stake in this case ­the defendant's right to fairly defend against the State seeking and obtaining the death penalty at the behest of the federal government without all the discovery that he would have been entitled to if the federal

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trial proceeded as planned. There is no justifiable reason to withhold this discovery from this defendant who faces the same murder charge in a state trial court as opposed to the federal district court. In this case, the playing field must be leveled in favor of the

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defendant Augustiniak and that can be accomplished by ordering that the non-disclosed material that is admittedly Brady, Giglio and Jencks material must be given to Augustiniak to prepare his defense.

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A. AN EX PARTE PROCEEDING DENIES THE DEFENDANT THE RIGHT TO EXAMINE OR REFUTE THE GOVERNMENT'S MOTIVATIONS FOR SEEKING A DISMISSAL WITH PREJUDICE The defendant objects to the government's ex parte presentation of its reasons for moving to dismiss the superseding indictment against Augustiniak. If this procedure

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is utilized, defendant is deprived of any opportunity to rebut or dispute any factual presentation made the government to this court in an ex parte proceeding because the government refuses to inform defendant of its reasons. Despite ample opportunity and Court orders to respond to the defense's assertions that the dismissal was made in bad

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faith, the government refuses to provide its reasons on the public record. Instead, the government requested an in camera hearing so they could present their reasons to this court to prevent the defense from examining their motives. Despite its complete and utter failure to provide any reasonable justification for the dismissal in its pleadings or

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during oral arguments in two separate hearings, the court granted the government's request. The United States and court cited to United States v Ammidown, 497 F.2d 615 (DC. 1974) (footnotes 10 and 15) as approving this procedure. However, it should be noted that the defendant concurred in the dismissal in Ammidown and the record does not reflect whether the defendant objected to the in camera proceedings. Likewise, in United States v Shanahan, 168 F. Supp 225 (S.D. Indiana), cited by Ammidown, it is

The award of attorney fees and costs against the government was reversed on appeal. However, the remaining sanctions were not disturbed.
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unclear whether the defendant agreed or objected to the in camera proceedings or whether the court held an in camera ex parte proceeding with the government and/or the defense. The only issue that was addressed by the court was the sufficiency of the

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underlying reasons for the dismissal proffered by the government. Further in United States v. Doe, 101 F. Supp. 609, 611(D.C. 1951), the court address an "exparte Hearing" in the context of a conditional dismissal ­the defendant was to plea guilty to lesser charges. The Court stated: "If the Department deems it unwise to disclose any

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weaknesses in its case before the defendant has pleaded guilty, it can always submit its information in writing and request that the disclosure be sealed at least until sentence has been imposed." Id. at 611. These cases do not solidly support the use of an ex parte in camera proceeding when the defendant objects and requests to be heard as to the government's motivations. The government has utilized ex parte proceedings to defer disclosure of discovery in this matter pursuant to Rule 16. However, its use of an ex parte proceeding to prevent the defendant from exploring the government's motives for dismissal (particularly when the motion to dismiss is filed on the same day that

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disclosure was ordered), violates the Defendant's due process rights. An ex parte proceeding completely denies the defendant the right to refute the government's motives for dismissing this matter it most certainly prejudices his due process rights to a fair proceedings and right to fair trial in the state forum. It cannot be

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overlooked that pursuant to this Court's prior orders, the material that the government now seeks to never disclose, was always subject to disclosure. The government knowing that the defense had an absolute right to this discovery (by court order) , sought three protective orders for deferment of disclosure, not the right to never

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disclose it. Now, the government despite its admission that this material encompasses Brady, Giglio and Jencks material subject to disclosure will go to any length to prevent disclosure. It is absolutely clear from the government' s statements made at that 2/28/06

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hearing in response to this court's questions, that it does not intend to release each and every piece of protected material, to any party in any forum despite its acknowledgement that the material is Brady, Giglio and Jencks material. On February 28, 2006, when the court asked the government if the protected material had been

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disclose to the State of Arizona prosecutors, the government responded that a portion of the material had been provided to the state authorities but the it did not know how many of them [of the documents or recordings] have been disclosed. TR. 2/28/06 p.27, ll. l 8-9. It went so far as to say, it is "inappropriate" for this court to inquire or take into consideration what "may or may not happen at the state court level" in this court. TR 2/28/06, p. 24, ll.2-123. The government's motive is even more apparent when it commented "that the "ATF may have an interest in opposing [defense discovery] requests that are made in a state court and they may want their own counsel to address those issues in state court." TR 2/28/06, p. 26, ll.7-10. Finally the government

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reluctantly admitted that "anything is possible" in response to the Court's inquiry that Mr. Augustiniak may not have access to information at the state level that was available at the federal level. TR. 2/28/06, p. 29-30, ll.1-9. There should be absolutely no question in this Court's mind based on the government's own statements that the federal

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government will never disclose the protected material in its entirety to any defendant in any forum and any request for disclosure will be vigorously contested by federal agencies and the United States government. Despite the government's weak assertion that "we don't if this will be a death penalty case", it

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cannot deny that it knows the state intends to seek the death penalty. Trying to steer the court away from the issue of the non-disclosed discovery, the government asserted at the hearing that

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"the state has had the power to prosecute this case from the beginning. And because they are separate and independent from this proceeding and from the United States Attorney's office, they should be allowed to handle their own discovery and their own issues in there own way.. TR. P. 25, ll.7- 12. This may be a reasonable position if it was true The United States government was working in concert with the state government throughout this entire proceeding. The state never sought to prosecute Augustiniak because in working in concert with the federal government, MSCO, Tempe Police Department, Mesa Department for at least

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four if not almost five years.

The government argues that this court has no power or

should exercise its power to force the federal government to disclose discovery "to benefit the state prosecution." TR 2/28/06, p.28, l.6. In other words, it is telling the court "do not assist Augustiniak with his defense in state court by ordering disclosure of

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known Brady, Giglio or Jencks material ­ let him figure how to get it." The federal government is and has been working side by side with the state government to preclude the defendant from a fair trial in a death penalty case. Its obvious attempt to separate itself from the state is disingenuous at best. 3 The state will attempt to execute Mr. Augustiniak for the same murder that the Federal government indicted him for in November, 2003 and persisted in until February, 2006. The government considered the death penalty in this forum and based on their strategic plans to secure an indictment against Augustiniak prior to its voluntary

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The governments made it appear as if Detective Dunn is the only law enforcement official that "crosses" over into the state case. Detective Hoffman, ATF Agent Ciccone (Kramer's handler), ATF Agent David Hamilton are just a few of the law enforcement officers that are essential the state's prosecution.
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dismissal of this case; the death penalty will be sought in the State Court. As the government initiated the dismissal proceedings and refuses to states its motivations, it should be required to publicly explain its motives for dismissing this case after two years

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of intense litigation and its assistance in seeking a state court indictment against Mr. Augustiniak prior to its motion to dismiss in this case. By providing the government an unchallenged opportunity to sway this court as to their "good faith motives" without allowing the defendant the right to contest those

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motives is patently prejudicial and violates Defendant's due process rights. Defendant Augustiniak respectfully request that the government's proffers of good faith be made in open court at an evidentiary hearing so that the defendant is afforded the right to contest and rebut the same. B. THE GOVERNMENT IS NOT ENTITLED TO THE PRESUMPTION OF GOOD FAITH

Based on the record created thus far and the government's absolute refusal to factually justify its position in open court, the government is not entitled to a good faith presumption in this case. United States v. Welborn, 849 F.2d 980, 983 (5th Cir.1988).

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As noted in United States v. James, 861 F.Supp. 151, 156 (D.C. 1994): Furthermore, both Welborn and Salinas recognize the prosecutor's obligation to explain that dismissal would be in the public interest. Welborn, 849 F.2d at 983; Salinas, 693 F.2d at 352. Thus, even under the cases cited by the Government, and even if the "Dismissal" were a motion, the pleading filed by the Government fails to explain its basis to the Court or the Defendant, and is therefore deficient. The record in this case is completely devoid of any facts that support any presumption because the government refuses to explain its position. In fact, the public record negates any good faith basis as the government unequivocally states that it

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"expected to go to trial and get a conviction against Kevin Augustiniak" (Govt's memorandum #1292,p.2, ll.8-9), it "had the expectation of going to trial" (#1292 p.2, ll.12-13), its case against Augustiniak "became stronger not weaker" ( #1292, p.2, ll.16-

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17), the government is not withholding exculpatory evidence (#1291 p.2, ll.19-20) and it "[i]t is with bitter regret that the undersigned counsel have submitted this motion to dismiss." (#1292, p. 2, ll.24-25). Obviously, if the government boldly makes these statements, its motion to dismiss the superseding indictment cannot be in "the interests

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of justice" and therefore, cannot be made in good faith. Even more telling is not what the government states on the record and its pleadings but what it will not say on the record. The government has strategically avoided providing any facts to this court in response to this court's repetitive questioning and the defendants' assertions regarding its motivations. Such silence in the face of simple inquiries leads to only one conclusion: The government is hiding something that is of such critical importance that if disclosed, will be the downfall of the government or the ATF. Such self-protection is clearly not in the public interests. Based on the government's own representations and admissions, there is no

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good faith motivation justifying its 11th hour dismissal and it known complicity with the state prosecution and constitutes prosecutorial harassment at its finest. This court has the authority to fashion and impose the appropriate remedy for such conduct. In United States v. Horn 811 F.Supp. 739, 753 (D.N.H. 1992) (rev in part on other grounds) the

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court noted: Although defendants are generally not entitled to witness summaries, in this case disclosure of the information is necessary and appropriate to eliminate the advantage gained through government misconduct. The court under its inherent

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supervisory power may formulate procedural rules not specifically required by the Constitution or Congress when such rules are needed to implement a remedy for violation of recognized rights or to deter illegal conduct. United States v. Hasting, 461 U.S. 499, 505, 103 S.Ct. 1974, 1978, 76 L.Ed.2d 96 (1983). The prescribed remedies are properly within the court's inherent supervisory powers and will successfully eliminate the taint in the prosecution and level the playing field. To do less would result in continuing prejudice. To do more and dismiss would be inappropriate under the circumstances.

Kevin Augustiniak has the constitutional right to present a complete and fair defense particularly in a death penalty case and the government is hiding material

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essential to his defense. Because he will be undoubtedly facing the death penalty and as the Supreme Court repeated reminds us that "death cases are different" than ordinary cases, any violation of his due processes rights will be greatly scrutinized by higher courts. This court has the power to order an appropriate remedy for the government's bad faith in this case, particularly in light of the prior discovery abuses and the timing of the motion to dismiss. III. CONCLUSION

Regardless of the procedure to determine the government's motives for seeking a dismissal with prejudice, Defendant requests that this court make specific factual findings as to the government's good faith or lack of good faith in moving to dismiss the indictment and/or refusing to comply with this Court's discovery orders. Defendant requests the following relief in whole or part, depending on how the Court intends to proceed in this case:

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1. 2.

Grant the motion to dismiss with prejudice will full disclosure to the defense; Deny the government's motion to dismiss with prejudice and order that this matter proceed to trial and enforce all disclosure orders;

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Deny the government's request for an in camera proceeding and if necessary, grant the defendant a public evidentiary hearing. If the ex parte in camera

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proceeding is held, the Defendant requests that the proceeding be on the record and sealed for appellate review; 4. Order that any dismissal be conditioned up full disclosure to the defense or the state prosecution or;

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5.

Order that any dismissal with prejudice be conditioned upon a filed written avowal by the federal government that all the protected material (as set forth below) will or has been provided to the state prosecution in the matter of State v Kevin Augustiniak for the same murder charge. The defendant also

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requests that a deadline of March 8, 2006 be imposed upon the government for the order of disclosure and; 6. Order the government to disclose with specificity, a list of documents or materials provided to the State of Arizona Maricopa County Attorney's Office

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or any of its agents including but not limited to local police agencies. 7. If the court grants the government's motion to dismiss with prejudice without disclosure to any party or entity, the defendant requests that the Court enter an order requiring the government to produce to the court in its entirety, all

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protected material as well as the other material requested by the defendant

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so that it is part of the court record and available for defendant's appeal including but not limited to: 4 All discovery withheld pursuant to this Court's protective orders as listed in

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the revised Matrix (Exhibit #1) and the Government's list of deferred items ( Exhibit #2); All discovery titled "January 6, 2006" discovery; Michael Kramer's ATF informant file (federal and local agencies) however

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titled by the government ("Main file", "sub file," etc.); All "Payment Receipts for Investigative, information payments or sustenance by the ATF or any other governmental agencies to Michael Kramer (form "ATF F 3251.1"); All personnel file information relating to ATF or other agents (federal or local) ; All scientific analysis and reports conducted by any agency on behalf of the federal government relating to the Garcia murder (Matrix Item #10). Lastly, Defendant requests an opportunity to be heard and make a record as it

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pertains to the Court's findings or orders. RESPECTFULLY SUBMITTED on March 2, 2006.

PATRICIA A. GITRE PLC /s/Patricia A. Gitre Attorney for Defendant Kevin Augustiniak

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Under these unique circumstances and because Defendant Augustiniak will be facing the death penalty for the same murder again, there is a possibility that this material that the government so adamantly desires to hide from the public will be lost or destroyed particularly any recordings.
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ORIGINAL filed electronically and copies of the foregoing Delivered via electronically or by email on 03/02/2006 Clerk of the Court Judge David G. Campbell Sandra Day O'Connor United States Courthouse 401 West Washington Street Phoenix, Arizona 85003 Tim Duax and Keith Vercauteran Government counsel All Defense Counsel /s/ Patricia A. Gitre

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