Free Memorandum - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona TIMOTHY T. DUAX KEITH E. VERCAUTEREN Assistant U.S. Attorneys Arizona State Bar No. 012694 & 013439 Two Renaissance Square 40 North Central Avenue, Suite 1200 Phoenix, Arizona 85004 Telephone (602) 514-7500 [email protected] [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America, Plaintiff, v. Kevin Augustiniak, Defendant. GOVERNMENT'S MEMORANDUM IN SUPPORT OF ITS MOTION TO DISMISS COUNTS No. CR-03-1167-011-PHX-DGC

The United States of America, by and through counsel undersigned, per this Court's request,

16 submits its Memorandum in support of the government's Motion to Dismiss Counts filed on 17 February 24, 2006. At present, the only party objecting to the government's motion is defendant 18 KEVIN AUGUSTINIAK. 19 I. Charging background 20 Defendant AUGUSTINIAK was indicted by a Federal Grand Jury in the District of Arizona 21 on November 18, 2003, for a violation of 18 U.S.C. § 1959(a)(1), Violent Crime In Aid of 22 Racketeering (VCAR) for the murder of Cynthia Garcia. AUGUSTINIAK was indicted in 23 Count 3 of a six-count indictment, which included RICO and § 1959 charges, against 16 24 members of the Arizona Hells Angels Motorcycle Club (HAMC). A superseding indictment was 25 returned on September 30, 2004. The superseding indictment added two counts for threats 26 against one of the undercover agents involved in the investigation. Count 3 of the original 27 indictment, pertaining to AUGUSTINIAK, remained unchanged in the first superseding 28 indictment. On January 19, 2005, a second superseding indictment was returned that added

Case 2:03-cr-01167-DGC

Document 1292

Filed 02/27/2006

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1 defendant AUGUSTINIAK to Counts 1 and 2 (RICO and RICO conspiracy), charged the 2 defendant with the kidnaping of Cynthia Garcia as Count 3 (VCAR), and the murder of Cynthia 3 Garcia in Count 4 (VCAR). On February 24, 2006, the United States filed a motion to dismiss 4 all pending counts without prejudice against defendant AUGUSTINIAK. It is the intent of the 5 United States at this time to dismiss the counts against defendant AUGUSTINIAK with 6 prejudice (Counts 1, 2, 3 and 4). 7 II. Defendant's Speculations as to Government's Reasons for Dismissal are Incorrect 8 The defendant engages in a great deal of speculation as to the motives behind the

9 government's actions in this case. Unfortunately, as has been consistently true of such 10 speculations, they are incorrect. Defendant accuses the government of engaging in intensive 11 litigation for the last six months with no intent of following through with the trial of this matter. 12 That accusation is entirely false. This case was litigated with every expectation of going to trial 13 and seeing defendant AUGUSTINIAK convicted for kidnaping and brutally killing Cynthia 14 Garcia. It was at the request of the undersigned prosecutors that DNA analysis of the biological 15 material under the victim's fingernails was conducted. When that analysis resulted in additional 16 evidence against defendant AUGUSTINIAK, the United States' case became stronger, not 17 weaker. Consequently, defendant's opinion that the government had problems with its RICO 18 and VCAR counts against the defendant in April of 2005 is simply incorrect. 19 Equally off the mark is defendant's accusation that the government is withholding

20 exculpatory evidence. The evidence in the government's possession leads inexorably to the 21 conclusion that defendant AUGUSTINIAK is a cold blooded killer. And, contrary to the 22 repeated misstatements of the defendant, the evidence against defendant AUGUSTINIAK 23 extends far beyond the testimony of Michael Kramer (testimony denigrated ad nauseum by the 24 defendant, but corroborated by the DNA evidence). It is with bitter regret that undersigned 25 counsel have submitted the Motion to Dismiss. However, events subsequent to January 3, 2006, 26 made certain portions of the government's indictment untenable, and resulted in an amended 27 course of prosecution. 28 The United States has freely admitted that it does not want to disclose the names and
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1 locating information of its informants to a violent organization such as the Hells Angels. The 2 Hells Angels history of violent intimidation of witnesses has been well documented in the 3 government's requests for protective orders, and in the Motion to Introduce 404(b) Evidence 4 regarding defendant AUGUSTINIAK and the Government's Reply. The government's desires 5 in that regard are well-founded, and constitute evidence of its concern for the safety of numerous 6 individuals, including law enforcement agents, as opposed to any desire to prejudice the 7 defendant. 8 The defendant's arguments regarding maintaining current counsel and the waste of

9 government resources are specious and ignore a basic legal reality: The State of Arizona has 10 always had the ability to indict the defendant for first degree murder. It would have that power 11 regardless of the outcome of the present case. The State of Arizona could have indicted 12 defendant AUGUSTINIAK before the federal case was indicted, while it was pending, or after 13 it was completed. 14 III. Government's Reasons for Dismissing Counts Against Defendant AUGUSTINIAK 15 Subsequent to the events of January 3, 2006, the United States needed to review additional

16 discovery to determine its nature and relevance to this case. Upon completion of that task, 17 additional decisions needed to be made regarding the treatment of this new material. 18 Additionally, a dispute arose between the case agent and the United States regarding the 19 potential discovery. After reevaluation of the case, the United States made new plea offers to 20 most of the defendants in this case. A substantial number of defendants accepted plea offers and 21 pled guilty. The United States then evaluated its case against the remaining defendants, and 22 decided to dismiss counts against five of those defendants. If this Court feels it needs additional 23 reasons why the United States dismissed counts against defendant AUGUSTINIAK, the United 24 States respectfully requests that it be allowed to submit such reasons in camera to avoid 25 prejudice to the government and to preserve witness safety. This procedure was approved by 26 a case cited by the defendant. See United States v. Ammidown, 497 F.2d 615, 621 (D.C. Cir. 27 1973), citing United States v. Shanahan, 168 F. Supp. 225-229 (S.D. Ind. 1958), and United 28 States v. Doe, 101 F. Supp. 609, 611 (D. Conn. 1951).
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1 IV. Legal Argument 2 3 4 A. The United States' Motion to Dismiss should be granted pursuant to the language of Rule 48, and controlling case law. This Court should grant the United States' Motion to Dismiss Counts, as such dismissal has

5 not been requested in bad faith, nor has the history of this case revealed a pattern of harassment 6 against defendant AUGUSTINIAK. In the absence of such findings, pursuant to the holding in 7 Rinaldi v. United States, 434 U.S. 22, 29 (1977), this Court should grant the government's 8 motion. It seems any allegations that the government intends to harass defendant

9 AUGUSTINIAK in the fashion contemplated in Rinaldi (i.e. charging, dismissing and 10 recharging) are foreclosed by the government's accession to a dismissal with prejudice. 11 It is anticipated the defendant will argue that the indictment recently returned against

12 defendant AUGUSTINIAK in Maricopa County Superior Court constitutes evidence of 13 harassment. However, this argument is untenable for two reasons. First, as this Court is aware, 14 the existence of dual sovereigns, state and federal, would allow the State of Arizona to prosecute 15 defendant AUGUSTINIAK even if defendant AUGUSTINIAK was acquitted after a trial in the 16 pending case. Second, the charges pending against defendant in the present case are different 17 than those pending in Maricopa County Superior Court, with different elements, further 18 foreclosing any Fifth Amendment arguments based upon double jeopardy concerns. 19 20 21 22 23 24 Rinaldi, 434 U.S. at 28. 25 The prevailing case law provides guidance to this Court in its evaluation of dismissals The Constitution does not deny the State and Federal Governments the power to prosecute for the same act. As these decisions recognize, in our federal system the State and Federal Governments have legitimate, but not necessarily identical, interests in the prosecution of a person for acts made criminal under the laws of both. These cases reflect the concern that if the Double Jeopardy Clause were applied when the sovereign with the greater interest is not the first to proceed, the administration of criminal justice may suffer.

26 pursuant to Rule 48 of the Fed. R. Crim. P. Rule 48(a), provides: 27 28 The government may, with leave of court, dismiss an indictment, information or complaint. The government may not dismiss the prosecution during trial without the defendant's consent.
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1 Before the promulgation of this Rule, the common law provided prosecutors unfettered 2 discretion, before empaneling the jury, to enter a nolle prosequi, a decision not to prosecute, 3 without first obtaining the court's consent. See United States v. Salinas, 693 F.2d 348, 350 (5th 4 Cir.1982). Because of the concern that prosecutors were abusing this discretion and harassing 5 defendants by indicting, dismissing, and reindicting without triggering the protections of the 6 double jeopardy clause, Rule 48(a) was enacted to provide a check on prosecutorial behavior. 7 See Rinaldi v. United States, 434 U.S. 22, 29, n. 15 (1977); Salinas, 693 F.2d at 351. Thus, 8 federal prosecutors now must seek "leave of court" to dismiss without prejudice. While the 9 judiciary has been authorized to supervise prosecutorial decisions to dismiss, Rule 48(a) was not 10 enacted for the purpose of usurping the traditional role of the prosecutor to determine whether 11 to terminate a pending prosecution. See United States v. Cowan, 524 F.2d 504, 513 (5th 12 Cir.1975) ("The Executive remains the absolute judge of whether a prosecution should be 13 initiated and the first and presumptively the best judge of whether a pending prosecution should 14 be terminated."), cert. denied sub nom., Woodruff v. United States, 425 U.S. 971 (1976); see also 15 United States v. Wallace, 848 F.2d 1464, 1468 (9th Cir.1988). 16 Therefore, under Rule 48(a), courts must grant leave to the government to dismiss an

17 indictment, information or complaint unless dismissal is clearly contrary to manifest public 18 interest. Rinaldi, 434 U.S. at 30. "The decision to dismiss an indictment implicates concerns that 19 the Executive is uniquely suited to evaluate, and a district court should be reluctant to deny its 20 request." United States v. Gonzalez, 58 F.3d 459, 462 (9th Cir. 1995). The United States submits 21 that the foregoing is particularly true when the request to dismiss contemplates a dismissal with 22 prejudice. 23 In United States v. Hayden, 860 F.2d 1483 (9th Cir. 1988), the defendant argued that the

24 district judge could have invoked his "inherent power" to dismiss portions of the indictment with 25 prejudice. Rule 48(b), however, is a mere restatement of the court's "inherent power" to dismiss 26 an indictment for failure to prosecute. Fed.R.Crim.P. 48(b) advisory committee's note. As such, 27 the district court's "inherent power" to dismiss for "unnecessary delay" would seem to be 28 coextensive with, and not greater than, its power under Rule 48(b). Consequently, any
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1 invocation of this Court's inherent authority is subject to the same limitations placed on the court 2 by Rule 48(a) and the above-cited case law. 3 In determining whether to grant the government's motion to dismiss, concerns regarding 4 separation of powers are highly important. When the government moves to dismiss counts in 5 an indictment, the district court has limited discretion to deny the motion. The limitation on its 6 discretion is based on separation of powers. "[U]nder our system of separation of powers, the 7 decision whether to prosecute, and the decision as to the charge to be filed, rests in the discretion 8 of the Attorney General or his delegates, the United States Attorneys." United States v. th 9 Edmonson, 792 F.2d 1492, 1497 (9 Cir.1986). "The Attorney General and United States 10 Attorneys retain broad discretion to enforce the Nation's criminal laws.... As a result, the 11 presumption of regularity supports their prosecutorial decisions...." United States v. Armstrong, 12 517 U.S. 456, 464 (1996) (internal quotation marks omitted). The government often charges multiple counts in its indictment, only to add or subtract 13 14 counts during the course of the prosecution. Because "[t]he decision to dismiss an indictment 15 implicates concerns that the Executive is uniquely suited to evaluate," Gonzalez, 58 F.3d at 462, 16 a district court is limited in its ability to second-guess the government's decisions on whether 17 and what to prosecute. The case at bar has been litigated intensely and over a long period of 18 time, and at times has been frustrating to the court and counsel, but such frustrations do not 19 change the language of Rule 48(a), nor negate the controlling case law. 20 The United States Court of Appeals for the Seventh Circuit recently discussed Rule 48(a).
th 21 See, In re United States, 345 F.3d 450 (7 Cir. 2003). "We are mindful of speculations in some 22 judicial opinions that a district judge could properly deny a motion to dismiss a criminal charge

23 even though the defendant had agreed to it. These opinions say that such a motion should be 24 denied if it is in bad faith or contrary to the public interest, as where `the prosecutor appears 25 motivated by bribery, animus towards the victim, or a desire to attend a social event rather than 26 trial.'" In re United States, 345 F.3d at 453. "We are unaware, however, of any appellate 27 decision that actually upholds a denial of a motion to dismiss a charge on such a basis. That is 28 not surprising. The Constitution's "take Care" clause (art. II, § 3) places the power to prosecute
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1 in the executive branch, just as Article I places the power to legislate in Congress. A judge could 2 not properly refuse to enforce a statute because he thought the legislators were acting in bad faith 3 or that the statute disserved the public interest; it is hard to see, therefore, how he could properly 4 refuse to dismiss a prosecution merely because he was convinced that the prosecutor was acting 5 in bad faith or contrary to the public interest." Id. Custom, limited prosecutorial resources that compel prioritizing prosecutions, federal 6 7 criminal statutes that overlap with each other and with state criminal statutes, plea bargaining, 8 and the federal sentencing guidelines themselves combine to lodge enormous charging discretion 9 in the Justice Department, to the occasional frustration of judges--yet without giving rise to any 10 judicial remedy." In re United States, 345 F.3d at 453-454, citing, United States v. Batchelder, 11 442 U.S. 114, 123-24, 99 S.Ct. 2198, 60 L.Ed.2d 755 (1979); The Confiscation Cases, 74 U.S. 12 (7 Wall.) 454, 457, 19 L.Ed. 196 (1868). 13 The consent of the defendant is required by Rule 48(a) only after trial has begun. See United
th 14 States v. Valencia, 492 F.2d 1071, 1074 (9 Cir.1974) ("Consent of appellant was not necessary 15 since trial had not yet commenced.").

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B. Discovery requests are moot after the case is dismissed. Article III of the Constitution requires that there be a live case or controversy at the time that

18 a federal court decides a case. See Burke v. Barnes, 479 U.S. 361, 363 (1987), and City of El 19 Paso v. S.E. Reynolds, 887 F.2d 1103, 1106 (D.C. Cir. 1989). If this Court grants the United 20 States' Motion to Dismiss, whether with or without prejudice, there no longer would be any duty 21 to provide disclosure because there would not be a live case pending. 22 The United States was unable to find any criminal cases on point about any continued 23 obligation to provide discovery after a case has been dismissed. However, the United States did 24 locate some analogous civil cases. Discovery requests are moot after a complaint is dismissed 25 because there is no longer a pending trial in which the discovery can be used. Neubronner v. th 26 Milken, 6 F.3d 666, 671 (9 Cir. 1993); and City of El Paso v. S.E. Reynolds, 887 F.2d 1103, 27 1106 (D.C. Cir. 1989). The United States District Court, D. Arizona, found a discovery order 28 moot based on a default judgment. See 9969 Industries, Inc. v. Sikktoys, LLC, 2006 WL 335845
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1 (D. Ariz. 2006). Respectfully submitted this 27th day of February, 2006. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 I hereby certify that on February 27, 2006, I electronically transmitted the attached 23 document to the Clerk's Office using the CM/ECF system for filing and 24 transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: 25 Patricia Ann Gitre, [email protected], [email protected] 26 27 s/ Timothy T. Duax 28 TIMOTHY T.DUAX
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PAUL K. CHARLTON United States Attorney District of Arizona

s/ Timothy T. Duax TIMOTHY T.DUAX Assistant U.S. Attorney