Free Motion for Miscellaneous Relief - District Court of Arizona - Arizona

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Brian F. Russo (018594) 111 West Monroe Street Suite 1212 Phoenix, Arizona 85003 (602) 340-1133 telephone (602) 258-9179 facsimile e-mail: [email protected] Attorney for Defendant Robert Johnston Jr. IN THE UNITED STATES DISTRICT COURT IN AND FOR THE DISTRICT OF ARIZONA UNITED STATES OF AMERICA, Plaintiff, vs. ROBERT J. JOHNSTON, JR. (1), Defendant. ) ) ) ) ) ) ) ) ) ) Case No. CR 03-1167 PHX-DGC MOTION TO DISMISS RE: LOST AND/OR DESTROYED EVIDENCE

COMES NOW the defendant by and through counsel, Brian F. Russo, and hereby moves this honorable Court for an order, pursuant to the due process clause of the Fifth and Fourteenth Amendments to the United States Constitution, dismissing the case against him because the government lost or destroyed exculpatory evidence in its possession. This Motion is supported by the Memorandum of Points and Authorities attached hereto. RESPECTFULLY SUBMITTED this 13th day of December, 2005. /s/ Brian F. Russo Brian F. Russo Attorney for Defendant

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MEMORANDUM OF POINTS AND AUTHORITIES I. SUMMARY

Law enforcement lost and/or destroyed notes taken by Rudolf Kramer with regard to his contacts and conversations with the defendant Robert Johnston. These notes reflect the communications between the confidential informant, Rudolf Kramer and Mr. Johnston. Their existence is referenced numerous times in the Reports of Investigation authored by the ATF. These notes have been specifically requested by Mr. Johnston in numerous discovery requests and letters to the government. Initially, AUSA Michael Kemp, informed counsel that the notes were possessed by ATF and that he would check with the agent concerning disclosure. In a subsequent conversation, Mr. Kemp could not provide a concrete answer concerning disclosure, but stated he would check again. Finally, upon further inquiry to the government, defense counsel was informed that the notes had been "incorporated into the ROIs" and subsequently destroyed. It is known that Rudy Kramer carried a note pad and took notes during conversations with Robert Johnston. It is also known that he wrote down the names and contact information of the numerous motorcycle clubs in Arizona; names and numbers of the members of the Arizona Confederation of Clubs; information about how one would go about starting a motorcycle club in Arizona, etc. It is understood and believed that Mr. Kramer's notes also reflect his opinion that Mr. Johnston was neither aware, nor in control of a large drug operation by the Hells Angels in Arizona. It is also believed that the notes reflect Mr. Kramer's opinion that the ATF was incorrect about Mr. Johnston's criminal conduct. Mr.

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Kramer's notes are the only evidence of his contact with Mr. Johnston that existed because the tape recording device used by the ATF suspiciously didn't work when he attempted to record his contact with the defendant. It should be noted that the recording device mysteriously worked when Mr. Kramer had contact with other people immediately before and after his contact with Mr. Johnston. It is axiomatic that Brady and its progeny establish as a matter of due process, that the government is required to turn over evidence in its possession that is material to the Mr. Johnston's guilt or punishment. Brady v. Maryland, 373 U.S. 83, 87 (1963). Mr. Johnston is denied due process when the government has failed to preserve evidence that had exculpatory value. Arizona v. Youngblood, 488 U.S. 51 (1988). The appropriate remedy is dismissal. Id.

II.

FACTS

On February 20, 2004, shortly after the defendants had been indicted and initial disclosures were provided, the defendant sent a letter to AUSA Michael Kemp requesting that additional materials be provided. (Copy of letter to AUSA Michael Kemp, February 20, 2005 is attached hereto as Exhibit 1). Specifically, the defendant requested that handwritten notes made by CI-790 (Rudolf Kramer) be preserved pursuant to United States v. Harris, 543 F.2d 1247 (9th Cir. 1976) and produced as part of the Government's disclosure. The disclosure of these documents was anticipated by the defendant based on the government's assertion at that time that it had an "open file policy." Counsel for the defendant also had conversations with AUSA Kemp concerning these documents. However, when they were still not disclosed seven months later counsel sent another letter to AUSA Kemp requesting the same documents. (Copy

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of letter to AUSA Michael Kemp, September 3, 2004 is attached hereto as Exhibit 2). Counsel made Mr. Kemp aware of the nature and contents of these materials and their purported value to the defendant. AUSA Kemp initially advised that the handwritten notes were possessed by ATF as evidence and that he would discuss disclosure with his agents. Finally, AUSA Kemp informed counsel that the handwritten notes had been incorporated into the ROIs and subsequently destroyed. Of specific concern are two dates in which Rudolf Kramer had face to face interactions with Robert Johnston. The first was July 13, 2002 wherein Rudolf Kramer met with Mr. Johnston and others at the Mesa Clubhouse. Other members of the HAMC were present including Jack Perkins who witnessed Rudolf Kramer making notes in a notepad during his conversation with Mr. Johnston. (See affidavit of Jack Perkins attached hereto as Exhibit 3). It was intended by the ATF that these conversations be recorded. However, in the ROI it states that "CI 790 was provided with a concealed recording device, however, due to operator malfunction, the device was not implemented, and the recording was not completed." On July 30, 2002 Rudy Kramer went to Mr. Johnston's place of employment to contact him. While at this location Mr. Johnston was present with a work associate during his discussion with Rudolf Kramer. (See affidavit of Duane Louton attached hereto as Exhibit 4). Mr. Johnston inquired of Rudy Kramer why he was writing down names in his note book. Mr. Kramer's response was that he had a bad memory and needed to write things down. These notes are of particular importance because the concealed recording device this time had an equipment malfunction and a recording was not made.

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A thorough review of all materials provided to date shows that these documents have not been produced. Further, the disappearance or non-existence of these materials is confirmed by a review of the Government's Notice Regarding Documents to be disclosed at a Later Time. [Docket 852]. In that Notice, the handwritten notes of CI-790 are not specifically referenced and there is no specificity with regard to the dates noted above. It is specifically requested by the defendant that if the Government now claims these documents exist, they be required give more specificity in their notice and that a hearing be held wherein the author, CI-790 is required to testify that the proffered handwritten notes are indeed his in light of Mr. Kemp's assertion they were destroyed.

III.

LEGAL ARGUMENT

The government violates the defendant's right to due process if unavailable evidence possessed exculpatory value that was apparent before the evidence was destroyed, and is of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means. United States v. Cooper, 983 F2d 928, 931 (9th Cir. 1993) citing California v. Trombetta, 467 U.S. 479, 104 S.Ct. 2528 (1984). There is an additional requirement that the defendant demonstrate bad faith in failing to preserve potentially useful evidence. Id. citing Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333 (1988). The presence or absence of bad faith turns on the government's knowledge of the apparent exculpatory value of the evidence at the time it was lost or destroyed. Cooper, at 931; citing Youngblood at 56-57.

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In Cooper, the DEA seized lab equipment from the defendants that they believed was for the manufacture of methamphetamine. The defendant professed

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that the equipment was being used for legitimate purposes. Counsel for the defendant wrote letters and had conversations with the United States Attorney's office concerning the exculpatory nature of the equipment. The government, pursuant to policy deposited the equipment with a

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company charged with its storage and/or disposal. The company's policy was that if the government requested it be preserved for evidence, the material would not be destroyed. However, if no request was made the material was destroyed and buried. The government did not believe the defendant's claim concerning the

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exculpatory nature of the equipment and made no request for preservation. The issue turned upon the defendant's ability to present exculpatory evidence by way of an expert who would testify that the device was not designed for use as a meth lab. The expert could not do so without first inspecting the equipment; this was made impossible because the equipment was destroyed by the government and the expert could not inspect it in order to render an opinion. The government proposed stipulations and instructions to cure the loss of the evidence.

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The court held that the government's proposed remedies were insufficient and affirmed the District Court's order dismissing the case. United States v. Cooper, 983 F2d 928, 933 (9th Cir. 1993).

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In the case before this court, the exculpatory and useful nature of Rudy Kramer's handwritten notes was repeatedly conveyed to the government and

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presumably its agents. United States v. Cooper, 983 F2d 928, 931 (9th Cir. 1993). In response, the government stated they possessed the notes as evidence and would check on the status of disclosure. Id. Thus, the notes exculpatory value were known to the government before they in bad faith destroyed them. Id.

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In United States v. Carrasco, 537 F2d 372 (9th Cir. 1976) a case that is factually similar to the case at bar, DEA agents destroyed a government witness's handwritten diary pursuant to policy and procedure. The court held that the destruction of the diary, even in good faith, did not excuse the production and

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destruction because it denies the defendant the opportunity to discover whether the agent's report substantially incorporated the contents of the destroyed materials. In Carrasco, the government witness made notes in a diary during the period of time she was arranging heroin sales with the defendant. The DEA agent testified that he included the contents of the diary in his report and to the best of his recollection, did not omit any substantive material. The agent also testified that he subsequently shredded the diary. Id. at 375.

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The court in Carrasco explained that: The Jencks Act was designed to insure that government witnesses could be impeached only with those statements which could "fairly be said to be the witness' own rather than the product of the investigator's selections, interpretations and interpolations." Palermo v. United States,
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supra, 360 U.S. at350. That purpose is not served when a government agent summarizes a witness' statement in his report and destroys the verbatim statement. Whether or not Agent Stewart's conduct was routine, it was manifestly unreasonable in light of the expressed Congressional intent, and is no less a violation of the Jencks Act because it was pursued in good faith. See United States v. Harrison, D.C. Cir., 1975, 173 U.S. App. 260, 524 F2d 421, 431-32; United States v. Perry, 1972, 153 U.S. App. D.C. 89, 471 F.2d 1057, 1062-66. United States v. Carrasco, 537 F2d 372, 377 (9th Cir. 1976). Thus, the good faith of the agent is immaterial to the denial of due process claim when such materials are destroyed. Id. In this case, Rudy Kramer made many handwritten notes concerning his interactions with Bob Johnston. These notes contained details of his conversations

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with Mr. Johnston evidencing the defendant's lack of culpability. Discovering whether the agent's report substantially incorporated the contents of the destroyed notes is not possible. United States v. Carrasco, 537 F2d 372, 377 (9th Cir. 1976). "It would require the district court to reconstruct a report no longer in existence using `the very witness[es] whose testimony the defendant seeks to impeach.'" Id. quoting United States v. Johnson, 521 F.2d 1318, 1320 (9th Cir. 1975). CONCLUSION

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The bad faith failure to preserve the handwritten notes of Rudolf Kramer violated the defendant's due process right to a fair trial because the potentially useful value of the evidence was known prior to its destruction. United States v.

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Cooper, 983 F2d 928, 931 (9th Cir. 1993); Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333 (1988). The appropriate remedy is to dismiss the case.

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RESPECTFULLY SUBMITTED this 13th day of December, 2005.

/s/Brian F. Russo Brian F. Russo Attorney for Defendant

COPY of the foregoing electronically mailed this 13th day of December, 2005, to: Tim Duax Keith Vercauteran Asst. U.S. Attorneys All Defense Counsel

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/s/
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