Free Response to Motion - 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 RESPONSE TO THE GOVERNMENT'S MOTION TO DISMISS WITHOUT PREJUDICE AND MOTION TO COMPEL DISCLOSURE OF ALL OUTSTANDING DISCOVERY

Plaintiff, vs. KEVIN J. AUGUSTINIAK Defendant.

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Defendant Kevin Augustiniak, through counsel moves pursuant to the Rules of Criminal Procedure, the Constitution of the United States and this Court's supervisory powers for an order dismissing the charges against him with prejudice and compelling disclosure of all materials withheld as a result of a protective order or otherwise

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wrongfully withheld from the defense by the government. Defendant requests the following disclosure from the government prior to dismissal of these proceedings: 1) All discovery withheld pursuant to this Court's protective orders as listed in the revised Matrix (Exhibit #1) and the Government's list of deferred items (Exhibit

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#2); 2) All discovery titled "January 6, 2006" discovery; 3) Michael Kramer's ATF informant file (federal and local agencies) however titled

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by the government ("Main file", "sub file");

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4) All "Payment Receipts for Investigative, information payments or sustenance by the ATF or any other governmental agency to Michael Kramer (form "ATF F 3251.1")1 5) All personnel file information relating to ATF or other agents (federal or local) 6) All scientific analysis and reports conducted by any agency on behalf of the federal government relating to the Garcia murder

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I. PROCEDURAL HISTORY This case has a long tortured history particularly as to the government's protracted non-disclosure of material and relevant discovery to the defense. In November, 2003 the government filed the first indictment in this matter and then publicly

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announced the biggest RICO case against the Hells Angels in the District of Arizona. In September, 2004 in response to this court's order directing government disclosure, the government filed its first superseding indictment. On January 19, 2005 the government unveiled its second superseding indictment adding more defendants to the RICO charges. During this entire period, Defendant Augustiniak was under the threat of the death penalty which was not lifted until the government determined it would not seek the death penalty against Augustiniak on February 8, 2005. From the beginning of this case, the parties repeatedly litigated the issue of discovery. Up through October, 2005 the government was apathetic to the defense's

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request for discovery and admitted that it made its own determinations of what was discoverable pursuant to the law. It wasn't until October, 2005 that the government

The government's list of items to be disclosed at a later date does not address disclosing the ATF informant payment vouchers and the specific informant files.
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began to fulfill its legal responsibilities and duties in this case to the court and the defense. Beginning in December, 2004, the court required the parties to prepare a matrix

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which listed all discovery items known by the parties to be in dispute. The matrix grew to over 400 categories or items that that the government refused to disclose to the defense. On July 8, 2005, the government filed a list of documents that it determined would be disclosed at a later date. (#754). After extensive litigation, the Court

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addressed each and every item listed in the matrix and ordered the parties to brief the grounds for disclosure. The court informed the Government that it must seek a protective order as any items that it sought to disclose at a later date. (Order, 7/12/05 #730). The government then sprung into action by filing an application for a protective order (#780-781) on August 12, 2005. In its public filing the government listed the Matrix items by number for which it was seeking a protective order. On September 13, 2005, the Court ordered the Chief of the Criminal Division of the United States Attorney's office to personally appear before the court and certify that the government

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has fully complied with its disclosure obligations. On October 12, 2005 the court issued a lengthy order regarding disclosure of the Matrix Items. (#884). While the court ordered disclosure of many of the matrix items, it also granted the government's request as to specific matrix items. (# 813). Additionally on October 12, 2005, the government

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chose to file its Certification of Compliance with Rule 16 under seal (#830). The court ordered the government to re-file its certification in a redacted form as part of the public record (#845). On October 20, 2005 the government filed its list of withheld discovery and proposed that it be disclosed to the defense six and two weeks before trial (# 852).

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On October 21, 2005 the government assured this court that it had or would comply with all of its disclosure obligations by November 4, 2005 and that any items not within a protective order will be disclosed to the defense on November 4, 2005. It also assured

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the court that it had reviewed its entire discovery in connection with its certification. (#870). The Court memorialized the government's representations in its order of October 25, 2005 (#868). The Court ordered "[o]n or before November 4, 2005, the Government shall produce a revised notice regarding documents the Government

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proposes to withhold until six or two weeks before trial." (#868, p.5, pp. 6). To date the government has not filed a revised list of withheld discovery. On November 4, 2005 the government filed a "Notice of Filing Supplemental Ex Parte Application to Defer Certain Discovery" (#884). Again the government listed the Matrix Items numbers as the items it sought to be protected from disclosure at a date set by the Court. On December 14, 2005 defense counsel filed a Motion for Disclosure of Personnel Files of any government agents. (#990) On December 21, 2005 the Court determined that the discovery withheld by the

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government (#851 list of withheld discovery).would be disclosed to the defense on February 24, 2006 ("six week discovery ") and March 10, 2006 ("two week discovery") and issued an order on December 22, 2005 ( #1012). On January 6, 2006, the government filed "Government's Notice of Potential

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Discovery" (#1027) regarding discovery that was not part of the Joint Discovery Matrix. The government did not identify the specific nature of the discovery or which defendants the discovery was relevant to or concerned.

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On January 17, 2006, the government filed a "Notice of Filing Second Supplemental Ex Parte Application to Defer Certain Discovery" (#1056). The government stated the application "concerns discovery not previously identified in the

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Joint Discovery Matrix but referenced in the United States January 6, 2006 Notice of Potential Discovery." (#1027). At no time did the government notify this court or defense counsel that it was seeking to permanently withhold all protected discovery from the defense.

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On January 11, 2006, the Court ordered the government to file a detailed description of the material referenced in the government's January 6, 2006 notice. (#1033) On January 17, 2006, the court granted the government's November 4, 2005 protective application. Again the order allowed the government to defer disclosure but not withhold the discovery from the defense. (#1074 and 1078). The Matrix Items covered by the Court's orders are listed in Exhibit 1 attached hereto and incorporated herein. The Court will note that the Government has identified most of the items as "Jencks, Brady, or Giglio" material and thus it is not disputed that exculpatory material is

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contained therein. On January 19, 2006 a status conference was held. As to the defense motion regarding disclosure of personnel files, the government stated it intended to comply with that request by February 24, 2006 (Transcript, p. 51, ll.23-25). The government also

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confirmed that it would disclose the withheld "six week material" by February 24, 2006 and March 10, 2006 (TR. P.56, ll.12-16). The court again requested the government to file a more detailed description of the January 6, 2006 material that it sought to defer and the government promised it would be done by January 27, 2006 (TR. p. 55).

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Counsel for Augustiniak requested that the government file a public notice listing the documents referenced in the January 6, 2006 notice of potential discovery (by bate stamp reference) for which the government was seeking an additional protective order.

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The court ordered the government to file a public notice with the bate stamp reference. (TR. P. 57-58). The court granted the government an extension until February 3, 2006. (#1158). To date the government has not complied with this court's order of filing a public notice for the defense as to the January 6, 2006 discovery material for which it

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sought deferral of disclosure. The list of deferred items subject to this court's protective orders that the government has disclosed to the defense is contained in Exhibit 2 attached hereto and incorporated herein. On February 8, 2006 a status conference was held to discuss pending issues. Undersigned again requested that the government be ordered to file a public notice regarding the January 6, 2006 material. The government was ordered to provide this to counsel within "the next week or so." (2/8/06, TR. p.42, ll. 7-12). To date the government has not complied with the court's orders. On February 10, 2006 the government mailed a letter to defense counsel. See

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Exhibit 3. While vague, it appears there was an internal dispute between the ATF and the United States Attorneys regarding when the subject January 6, 2006 discovery was provided to the AUSA. On February 13, 2006, Defendant Augustiniak filed a motion regarding Matrix Item #10, and the government's refusal to provide scientific reports and

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testing. (#1214).2 On February 14, 2006, defendant filed a Motion for an evidentiary

In February, 2006, the government refused to disclose additional DNA testing and results despite its promises made during the status conference on July 8, 2005 that "it will produce these materials [scientific analysis] to Defendants as soon as they are received." The only protective order the government sought at to #10 was to redact names. See Order #750, p.2, pp.2, ll.4-10. The government did not redact all reference to Michael Kramer.
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hearing regarding the government's disclosure violations referencing the government's letter and the history of disclosure issues. (#1218). The government did not respond to these motions. During February 2006, Ms. Gitre sent several emails discovery requests

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to the government. The government did not respond. On February 23, 2006 at approximately 5:30 p.m., the government notified undersigned that it would be dismissing against her client. The government also notified Ms. Gitre that Mr. Augustiniak would be immediately transferred to the custody

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of Maricopa County and that an indictment had been filed early that week against Mr. Augustiniak for First Degree Murder of Cynthia Garcia. The government also stated that the State also filed gang enhancements (Hells Angels) as to the murder charge. The government also stated it would not be disclosing any additional discovery to the defense and that the State Capital review committee would be determining whether the death penalty would be sought against Mr. Augustiniak. On February 24, 2006, the government filed a Motion to Dismiss without prejudice as to all remaining defendants (except Walters, Eischeid, and Jaime) in the "interests of justice." A hearing was held and the government did not explain to the

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court its reasons for the dismissal for the remaining defendants. The defense sought a dismissal with prejudice and disclosure of all promised discovery. The government objected but again, did not articulate any legal or logical basis for its position as to either issue. The court ordered the parties to brief these issues to be heard on February 28,

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2006 at 3:00 p.m. Later in the afternoon on February 24, 2006 the government offered a stipulation to the defendants: the government offered a dismissal with prejudice if the defense stipulated that it was not entitled to additional discovery. Counsel for Watkins,

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Kelly and Reinstra agreed. Counsel for Augustiniak did not accept the government's offer. II. ARGUMENT A. THE CHARGES AGAINST MR. AUGUSTINIAK MUST BE DISMISSED WITH PREJUDICE Rule 48(a) of the Federal Rules of Criminal Procedure provides the general provisions for the dismissal of indictment. The government may, with leave of the court, dismiss an indictment. The court had broad discretion on whether to dismiss, not to dismiss or dismiss with prejudice United States v. Gonzalez, 58 F.3d 459 (9 Cir. 1995).

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The Gonzalez court suggests that the purpose of the requirement that leave of court be obtained is to grant judges discretion to prevent the government from using its discretionary power to dismiss indictments for purposes of harassment. Such a statement would allow a court to decide what the motivating factor was for the dismissal. This rule represents defendants' sole source of protection against prosecutorial tactics and the court should utilize it to safeguard the defendant's rights. The court's fundamental consideration in assessing the propriety of a prosecutor's dismissal motion is whether the motion is made in "good faith." United States v. Salinas, 693 F.2d 348, 351 (5th Cir. 1982). The Salinas court noted that prosecutorial

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harassment involves charging, dismissing, and subsequently commencing another prosecution at a different time or place deemed more favorable to the prosecution (citing United States v. Ammidown, 497 F.2d 615 (D.C. Cir. 1974). The court went on to note that the key factor in a determination of prosecutorial harassment is the propriety

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or impropriety of the Government's efforts to terminate the prosecution-the good faith or lack of good faith of the Government in moving to dismiss. The Government must not be motivated by considerations "clearly contrary to the public interest." Id at 351.
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In United States v. Wallace, 848 F.2d 1464 (9th Cir. 1988) the defendant contended that the Government's dismissal was motivated by its desire to gain a tactical advantage by selecting a more favorable time to re-indict her. Further, she alleged that

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the government's proffered reason for the dismissal was a sham. The court found that if Wallace could prove such motivations, she could establish that the dismissal was sought in "bad faith." Id at 1468. Ultimately, rather than having the court guess about what the government's

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motivations might be, this court has the authority to force the government to articulate legitimate reasons for seeking dismissal at this late stage in the proceedings as the court did in Ammidown, 497 F.2d 615 (DC. Cir. 1974). The Ammidown court sternly noted that, "when the court is addressing the propriety of the government's actions, the court should not be content with a mere conclusory statement by the prosecutor that dismissal is in the public interest. Rather, a court should require the government to give a statement of reasons and underlying factual basis." The rule, the court noted, contemplates exposure of the reasons for dismissal "in order to prevent abuse of the uncontrolled power of dismissal previously enjoyed by prosecutors," and in pursuance

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of this purpose "to gain the Court's favorable discretion, it should be satisfied that the reasons advanced for the proposed dismissal are substantial." Id at 620. The Ninth Circuit has also found that dismissal with prejudice is a remedy to the government's rule 48 dismissal United States v. Hayden, 860 F.2d 1483, 1489 (9th Cir. 1988). See also United States v. Smith, 55 F.3d 157, 159 (5th Cir. 1995) (holding that a court may dismiss the indictment with prejudice under Rule 48(a), where the government acted in bad faith).

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As applied to this case, Mr. Augustiniak moves this court to dismiss his matter with prejudice as the government's motion is clearly not in "interests of justice." It was filed only for tactical reasons none which should be condoned by this court. Included in

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the list of the government's motives is avoiding various court orders relative to discovery, depriving Augustiniak of prepared counsel, Augustiniak's continued deprivation of Augustiniak's liberty and more importantly, to once again expose Mr. Augustiniak once again to the threat of the death penalty ­execution by lethal injection.

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As established by the record, the government's individual and collective conduct cannot by any stretch of the imagination be justified as in the "interests of justice." There should be no doubt in the Court's mind about the government's motives in dismissing the charges against Mr. Augustiniak. The submission of plea agreements to certain defendants, the timing of the state indictment against Augustiniak coupled with the government's motion to dismiss all charges against Augustiniak all on the same date comprise a secret and carefully orchestrated abuse of power, the offensive nature of which is compounded the complete lack of notice to either this court or the defense. The government deliberately and painfully dragged this court and counsel through

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lengthy and protracted proceedings throughout the last few years ---particularly the last six months--- all with no intention by the government of following through with trial in this matter. It is also clear from the 11th hour offer to stipulate to dismiss with prejudice against certain defendants was to avoid disclosure of the deferred discovery in this case

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particularly to Defendant Augustiniak. It does not take much to see that Defendant Augustiniak will suffer actual prejudice by the government' well thought out plan. The government must explain to this Court how the "interests of justice" are served by dismissing this matter without prejudice as to Kevin Augustiniak. In sharp

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contrast, the record thus far does not remotely suggest that justice will be served by such an order. The record does reflect however, that the government at least in the last few months has not acted in good faith. As the record reflects, the federal and state

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government have been working together to prosecute Kevin Augustiniak in Federal Court. The chief agency investigating the Garcia Murder is Maricopa County Sheriff's office and Detective Brad Dunn. The federal government and the state government worked together to secure back to back plea agreements (November, 2003) for

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Informant Michael Kramer who will receive a stipulated sentence for murder of five years probation (and no jail time) from the State and the Federal governments. Other evidence on the records reveals the concerted efforts of the federal and state government regarding the Garcia murder. For example, on April 4, 2005 Detective Dunn called the DPS crime lab and told them he needs DNA on the 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 (sic) (Maricopa County Attorney`s office) Capital Unit), OK to consume fingernails.3 On April 12, 2005 DPS wrote in its log notes re: conversation with Detective Dunn:

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"Trial currently set for April 26 [2005]. Told Dunn not very likely that it would be done by April 26. Case may also be prosecuted by MCAO (Maricopa County Attorney's Office) if federal charges do not hold up." It can be reasonably concluded that as early as April, 2005 the federal government knew it may have problems proving RICO and VCAR charges against Mr.

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Augustiniak as well as others. Instead of dismissing the charges earlier on or attempting to resolve the pending charges, the government waited until February, 2006

Bob Shutts 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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to offer pleas to certain defendants but not Mr. Augustiniak. The government's deliberate and intentional conduct deprives Mr. Augustiniak of his federal counsel who prepared over the last two years to try his case, subjects Mr. Augustiniak to years of

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additional litigation, loss of liberty and of this Court's orders regarding discovery. Equally reprehensible is the loss of valuable judicial resources, time, and cost expended by all particularly the indigent defense for a RICO case that the government never intended to litigate through trial. Further, the government has not dismissed the

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charges against Paul Eischeid which means it that it is keeping its options open in the event the State is not successful. It is clear that the government has no reasonable good faith basis for its conduct in this case. The charges against Mr. Augustiniak must be dismissed with prejudice. B. DISCLOSURE OF DISCOVERY As established by the record, at no time during this lengthy litigation did the government contend that the requested discovery never be disclosed to the defense. The issue was always a matter of when it would be disclosed not what will be disclosed.

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The government has known since at least December 22, 2005 that all deferred discovery would have to be produced beginning February 24, 2006 to the defense. The government also knows that this discovery contains exculpatory evidence relating to Mr. Augustiniak's case and the Hells Angels investigation. Defendant submits that this Court has authority while this case is still pending to order disclosure of all materials

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pursuant to the constitution to ensure that the defendant's right to a fair proceeding, effective assistance of counsel, its supervisory powers, and Rule 16(d). The government's offer to stipulate to a dismissal with prejudice as long as the defense

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forgoes discovery reveals that it also recognizes the court's authority and fears the court will exercise the same. The government's offer to barter and 11th hour tactics violate Defendant's 5th Amendment due process rights which include the right to a fair proceeding at this time, the right to prepare a defense, and the right to fair and just proceedings at the state level. The federal government is withholding exculpatory evidence that the defendant needs not only to present as mitigation for the death penalty committee but to

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adequately prepare his defense.4 There is no guarantee that the federal government will turn over all withheld evidence to the state and that the state would then turn it over to the defense. It is more likely that the federal government will not disclose this discovery to the state so that the state may in turn claim it is not in their possession, custody, or control, one of the prerequisites of state disclosure rules. Further, the court has broad authority to order disclosure pursuant to Rule 16(d) which provides in part: (1) Protective and Modifying Orders. At any time the court may, for good cause, deny, restrict, or defer discovery or inspection, or grant other appropriate relief. The court may permit a party to show good cause by a written statement that the court will inspect ex parte. If relief is granted, the court must preserve the entire text of the party's statement under seal. (2) Failure to Comply. If a party fails to comply with this rule, the court may: (A) order that party to permit the discovery or inspection; specify its time, place, and manner; and prescribe other just terms and conditions; +++ (D) enter any other order that is just under the circumstances.

The state has 60 days from indictment to file its notice seeking the death penalty. Az.R.Crim. P. Rule 15.1.
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Augustiniak submits that the rule broadly grants this court authority to order disclosure of this discovery prior to granting the government's request for dismissal

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particularly since one of the government's motivations for the dismissal was to avoid this court's discovery orders. Such disclosure is "just" under the circumstances. The federal government's orchestrated dismissal was to provide the state with a tactical advantage on the first degree capital murder case against Augustiniak. The murder

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case against Augustiniak depends entirely on the testimony of Michael Kramer, the ATF informant and murderer. As this court is aware, Mr. Kramer is also a known methamphetamine addict and alcohol abuser, has already testified for the federal government in United States v Fabricant, in which he admitted to using methamphetamine, violent conduct and other illegal conduct during his ATF informant tenure. The federal government and agents despite their early knowledge of Mr. Kramer's participation in the Garcia murder intentionally chose to put the murder prosecution on hold for two years so that it could utilize Kramer as an ATF informant. The state also knowing about the murder complied with the Federal government's goals

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and laid in the weeds for almost five years, until the federal government was ready to hand the case over to them. In short, investigating the Hells Angels for two years with a known informant -murderer at tremendous expense to the taxpayers was more important to our governments than bringing the murderers to justice. This conduct is

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unconscionable and should not be buried by the government through its expansive federal power.

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Further, Ariz.R.Crim P Rule 15.1 governing disclosure in the state case only requires disclosure of that which is the state government's "possession or control." ATF reports, Federal grand jury transcripts, informant files, reports of investigation, and the

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like are not within the state's control and beyond the defense's subpoena power. See Carpenter v. Superior Court In and For County of Maricopa, 176 Ariz. 486, 489, 862 P.2d 246, 249 (Ariz. 1993) [Defendant may not use subpoena power in place of Rule 15; if information sought tends to mitigate or negate guilt or to reduce defendant's

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punishment, the prosecutor must automatically disclose in full, if the information is within the state's possession or control.], but see State v. Meza, 203 Ariz. 50, 55, 50 P.3d 407, 412 ( Ariz. 2003) ["The State must disclose not only "information in the possession or control of members of the prosecutor's staff," but also that within the possession or control "of any other persons who have participated in the investigation or evaluation of the case." Ariz. R.Crim. P. 15.1(d) (1993)']; In re Brown, 952 P.2d 715, 718-19 (1998) (recognizing a crime lab as part of the prosecution team and that "any favorable evidence known to the others acting on the government's behalf is imputed to the prosecution"). There is no legitimate reason why the defense should be left to battle

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disclosure issues with the state government. The parties as well as the state know that the withheld evidence is largely exculpatory or impeachment relating to Michael Kramer's illegal and unscrupulous conduct while acting as an ATF informant as well as the ATF's known complicity in such conduct for the sake of its "Hells Angels Rico

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Investigation".5

The government cannot use "witness safety" as a shield any longer without providing concrete facts that his safety has been or will be compromised. In 2004, Mr. Kramer testified for two days in open court in US v Fabricant without incident. Further, the state must disclose the names of all witnesses and related reports.
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Defendant further submits that the court may invoke its supervisory powers regarding disclosure of discovery. In United States v Lopez, 4 F.3d 1455, 1464 (9th Cir.1993), the Court noted:

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There are three legitimate grounds for a court's exercise of supervisory power: "to implement a remedy for the violation of a recognized statutory or constitutional right; to preserve judicial integrity by ensuring that a conviction rests on appropriate considerations validly before a jury; and to deter future illegal conduct." United States v. Simpson, 927 F.2d 1088, 1090 (9th Cir.1991). We have recognized that exercise of supervisory powers is an appropriate means of policing ethical misconduct by prosecutors. United States v. McClintock, 748 F.2d 1278, 1285-86 (9th Cir.1984), cert. denied, 474 U.S. 822, 106 S.Ct. 75, 88 L.Ed.2d 61 (1985); see also United States v. Williams, 504 U.S. 36, ----, 112 S.Ct. 1735, 1742, 118 L.Ed.2d 352 (1992) ( "[T]he court's supervisory power ... may be used as a means of establishing standards of prosecutorial conduct before the courts themselves."). We also have expressly recognized the authority of the district court to dismiss actions where government attorneys have "willfully deceived the court," thereby interfering with "the orderly administration of justice." United States v. National Medical Enters., Inc., 792 F.2d 906, 912 (9th Cir.1986) (quotations omitted).

In contrast to constitutional grounds for dismissal, the supervisory power theory "is premised on the inherent ability of the federal courts to 'formulate procedural rules not specifically required by the Constitution or the Congress.' " McClintock, 748 F.2d at 1284 (quoting United States v. Hasting, 461 U.S. 499, 505 (1983)). As McNabb and its

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progeny make clear, the use of the supervisory power, to dismiss an indictment or for any other purpose, does not require a constitutional violation. United States v. Hogan, 712 F.2d 757, 761 (2d Cir.1983). The supervisory power may be used not only to vindicate a defendant's rights, but also to preserve judicial integrity and/or to deter illegal

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or improper conduct. United States v. Hasting, 461 U.S. at 505. "An important function of our supervisory power is to guarantee that federal prosecutors act with due regard for the integrity of the administration of justice." United States v. Basurto, 497 F.2d 781, 793 (9th Cir.1974) (Hufstedler, J., concurring) (emphasis added).

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Further, "supervisory powers are intended to deter governmental misconduct and protect the integrity of the judicial process, while constitutional analysis preserves fairness for the individual defendant." United States v. Simpson, 927 F.2d 1088, 1091

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(9th Cir.1991). The McNabb court observed: Judicial supervision of the administration of criminal justice in the federal courts implies the duty of establishing and maintaining civilized standards of procedure and evidence. Such standards are not satisfied merely by observance of those minimal historic safeguards for securing trial by reason which are summarized as 'due process of law' and below which we reach what is really trial by force. Id. at 340.

The government repeatedly promised that it would disclose this discovery and it should be held to its promise to Mr. Augustiniak, the only remaining defendant facing the death penalty in the state court for the same alleged events--the murder of Cynthia Garcia. The government has a duty to the defendant to ensure that he receives the entire discovery particularly that which it has already acknowledged contains Brady and Giglio material. As the Supreme Court said in Giglio v. United States, 405 U.S. 150, 154(1972) noted: The prosecutor's office is an entity and as such it is the spokesman for the Government. A promise made by one attorney must be attributed, for these purposes, to the Government. . . . To the extent this places a burden on the large prosecution offices, procedures and regulations can be established to carry that burden and to insure communication of all relevant information on each case to every lawyer who deals with it. The government's conduct in this case by withholding relevant and exculpatory material from the defendant at a time that is most crucial to the defendant's preparation of his defense and to weigh against the State seeking the death penalty will undoubtedly ensure that justice is not done. As the court in United States v Butler, 7

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F.2d 885, 893 (9th 1978) stated:

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The Government, and particularly the United States Attorney's office, is charged not only with the duty to prosecute the accused, but also with the paramount duty to ensure that justice is done. United States v. Reynolds, 345 U.S. 1, 12, 73 S.Ct. 528, 97 L.Ed. 727 (1953); Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314 (1934). "(T)he interest of the prosecution is not that it shall win the case, but that it shall bring forth the true facts surrounding the commission of the crime so that justice shall be done . . .." [FN1 omitted] Surely, conduct such as that indulged in here by the Government cannot in any imaginable way promote the just administration of the laws in the United States, and, in fact, affirmatively obstructs the pursuit of justice, the very lofty mission with which the Government is charged. (Emphasis added). In sum, the court must not allow Mr. Augustiniak's rights to be trampled upon by rewarding the government's complete waste of valuable judicial resources including indigent defense funds and counsel's efforts over the last three years. III. CONCLUSION For the above reasons, Defendant requests that the Court order immediate disclosure of the following materials: 1. All discovery withheld pursuant to this Court's protective orders as listed in the revised Matrix (Exhibit #1) and the Government's list of deferred items ( Exhibit #2); 2. All discovery titled "January 6, 2006" discovery

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3. Michael Kramer's ATF informant file (federal and local agencies) however titled by the government ("Main file", "sub file," etc.); 4. All "Payment Receipts for Investigative, information payments or sustenance by the ATF or any other governmental agencies to Michael Kramer (form "ATF F

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3251.1") 5. All personnel file information relating to ATF or other agents (federal or local)

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6. All scientific analysis and reports conducted by any agency on behalf of the federal government relating to the Garcia murder (Matrix Item #10). Further, Defendant requests that this Court dismiss this matter with prejudice after the above disclosure has been made to the defense. Lastly, if the Court declines to order the government to disclose the withheld material to the defense, the Defendant requests that the federal government be ordered to turn over all materials (as stated above including that contained in Exhibits 1 and 2)

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to the state government and file a notice with this court upon completion. Further, in order for the federal record to be complete, the defense also requests that the government file a public notice as to the "January 6, 2006" items that are withheld regardless of the outcome of these pending motions.

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RESPECTFULLY SUBMITTED on February 27, 2006. PATRICIA A. GITRE PLC

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/s/Patricia A. Gitre Attorney for Defendant Kevin Augustiniak

ORIGINAL filed electronically and copies of the foregoing Delivered via electronically or by email on 02/27/2006 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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