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

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Brian F. Russo (018594) Attorney at Law 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 IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIOZNA UNITED STATES OF AMERICA, Plaintiff, vs. ROBERT J. JOHNSTON, Defendant. ) ) ) ) ) ) ) ) ) ) Case No. CR03-1167-PHX-DGC MOTION TO DISMISS INDICTMENT RE: GOVERNMENTAL MISCONDUCT OCCURRING BEFORE THE GRAND JURY

(Evidentiary Hearing Requested) COMES NOW the defendant ROBERT J. JOHNSTON, by and through his attorney, Brian F. Russo, and on behalf of all other defendants, and hereby moves this Honorable Court for an order dismissing the indictment because the government presented perjured and knowingly false testimony to the grand jurors in violation of defendant due process rights. This Motion is supported by the Memorandum of Points and Authorities attached hereto and incorporated herein by reference. RESPECTFULLY SUBMITTED this 13th day of December, 2005. /s/ Brian F. Russo Brian F. Russo Attorney for Defendant Johnston

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MEMORANDUM OF POINTS AND AUTHORITIES I. BACKROUND

The Government is intent on proceeding with an indictment and investigation
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involving admitted fabrication, false statements, and criminal conduct committed by the informer while enrolled in the CI program. The Government knowingly relied on these false statements and bad acts in its presentation to the grand jury. In November 2003 the United States Government presented evidence to a grand

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jury requesting that they charge Robert J. Johnston, Jr. and others with RICO and RICO conspiracy. The government presented evidence gathered from an investigation that was conducted using confidential informants and undercover agents.

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The government was able to introduce undercover agents into the HAMC through their confidential informant listed as CI-790. This informant was arrested for possession of a firearm during a drug transaction, among other things. On or about March 6, 2002 CI-790 conducted debriefings with the BATF. During those debriefings he provided information concerning what he believed the HAMC organization consisted of. He also informed the BATF that he knew several members of the HAMC and could introduce agents into the Mesa Charter.

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CI-790 also known as Rudy Kramer was thereafter used in an undercover capacity to assist law enforcement in gaining entry into or association with the

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HAMC. On or about May 6, 2002 Rudy Kramer began communicating with HAMC member Robert Johnston in order to ingratiate himself into Mr. Johnston's

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confidence on behalf of law enforcement. Over the course of six months, Rudy Kramer continually contacted Mr. Johnston and made efforts to further solidify his relationship with him. This was done so that Mr. Kramer could then introduce undercover law enforcement agents

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to members of the HAMC as members of another motorcycle club known as the Solo Angels. For more than six months, and over 70 pages of Reports of Investigation, CI790 had contact mostly with Mr. Johnston, but also other members of the HAMC

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and their associates. However, most of his initial work with law enforcement centered on his relationship with Mr. Johnston. Rudy Kramer would routinely call Mr. Johnston at his home, his place of employment and his cellular phone. Many of these calls were intended to be recorded, but few were. The ROIs indicate that the communications were not recorded because of either operator error or mechanical difficulty. It is interesting to note that on several occasions where the conversations were not recorded due to

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difficulty, the machine mysteriously worked immediately before, and immediately after the conversations with Mr. Johnston where Rudy Kramer recorded others.

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This is important to note because without a recording we are forced to rely on the credibility of Rudy Kramer and his veracity concerning his conversations with

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Mr. Johnston. On September 6, 2002 while an official CI for the ATF Rudy Kramer was arrested by the Arizona DPS for Distribution of an Imitation Substance and Possession of Drug Paraphernalia. The Officer concludes that because Kramer

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was n possession of all the tools necessary to weigh, prepare, distribute and sell drugs there is strong evidence he is involved in drug activity. (Copy of DPS Departmental Report 2002-061151 attached hereto as Exhibit 1) On November 2, 2002 Rudy Kramer was again arrested by DPS and found to be in possession of a

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large amount of narcotics of sale. (Copy of ROI 42, Case Number 785040-02-0049 attached hereto as Exhibit 2). On December 12, 2002 Rudy Kramer made a phone call to a friend in which he states that Agent Mitchell wanted him to sign a statement that was not true and that law enforcement was threatening him to make false statements. This conversation was recorded and these tapes and their contents are known to the court, the government and all defendants. It is apparent that a large portion of the investigation revolved around Rudy

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Kramer and his ability to introduce agents to members of the HAMC. It is also apparent that much of the evidence gathered from Rudy Kramer was presented to the grand jury in the government's presentation. Thus, it is easy to conclude that

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the presentation was based on false or perjured testimony and that the indictment must be dismissed.

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In addition, Agent Joseph Slatella, the case agent, drafted affidavits in support of search warrants that contain false statements. His affidavit is a summary of the government's theory of the case; it is this summary and these falsehoods that were presented to the grand jury.

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II.

FACTS

On November 18, 2003 a Federal Grand Jury returned and Indictment against Robert J. Johnston, Jr. and others for violation the law of the United States, specifically, RICO and RICO Conspiracy. ATF Agent Joseph Slatella testified

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before the grand jury in Phoenix, Arizona. Prior to the presentation of evidence to the grand jury, the government had in its possession a recorded conversation wherein Rudolf Kramer alleges that a law enforcement agent wanted him to make false statements and sign a document that set forth false statements. These conversations were recorded on December 12, 2002 and were part of the discovery materials provided to the defense. Mr. Kramer also stated that he was being threatened by law enforcement to make false

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statements and that if he refused he would be punished by being kept in isolation. The government knew that the statements made by Rudolf Kramer were false when they presented the evidence the grand jury. It is also anticipated that an

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evidentiary hearing will be held where more specific evidence will be produced regarding the evidence presented to the grand jurors.

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Agent Joseph Slatella also authored affidavits in support of search warrants in this case wherein he states under oath that he relies upon information provided to him by other agents and CIs who participated in the investigation including Jay Dobyns, Rudy Kramer, and Michael Kramer.

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The assertion in support of the "enterprise" theory contained in the affidavit is that the purpose of HAMC Officer's Meetings and church meetings is to discuss criminal activities. Further, that Presidents and Vice Presidents attend Officer's Meetings and are responsible for informing their charter of any criminal directives

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provided at the meetings. (Copy of pages 29-30, July 2, 2002 Affidavit are attached hereto as Exhibit 3). Agent Slatella also swears under oath that bank records and minutes of meetings are kept that reflect proceeds of illegal activities. (Copy of page 35, July 2, 2002 Affidavit is attached hereto as Exhibit 4). And, that minutes of meetings contain specific reference to criminal activity. (See Exhibit 3, ¶ 3 and R.T. Interview of Agent Slatella, July 26, 2004, pp.47-49 attached hereto as Exhibit 5). Finally, Agent Slatella claims that there were several murders committed by

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the HAMC and this organization enterprise. (R.T. Interview of Agent Slatella, July 26, 2004, pp.43-44 attached hereto as Exhibit 6).

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A thorough review of all evidence produced has failed to uncover any of the referenced materials alleged to exist by the agent. In addition, the defense was

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provided video and audio recordings of HAMC Officer Meetings and church meetings, that were secretly recorded by Michael Kramer who is also known as CI376. In the recordings provided, there are no criminal activities discussed, contrary to the Agent's claims. This leads to only one of two possible conclusions; either

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more discovery, relevant and material to these issues exists, that the government has failed to produce in violation of the court's order 1 , or the government is lying. It is believed, based upon information from the government, that Agent Slatella testified before the grand juries and necessarily presented the same

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information contained in his affidavit to the grand jury in support of RICO and RICO conspiracy charges. Thus, based on the lack of evidence, and the existence of evidence that directly contradicts his testimony, false evidence was knowingly presented to the grand jury. III. LEGAL DISCUSSION A. Mr. Johnston's due process rights were violated by an indictment which the Government knows is based on false testimony presented to the grand jury.

"The Due Process Clause of the Fifth Amendment is violated when a defendant has to stand trial on an indictment which the government knows is based partially
Reference is made to Defendant's Motion to Dismiss [Docket 930] detailing the Rule 16 materials not produced. 7

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on perjured testimony." United States v. Basturo, 497 F.2d 781, 785 (9th Cir. 1974). If an indictment is based partially on perjured testimony, that is material

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to the indictment, the defendant's due process rights have been violated and the indictment must be dismissed. Id. Dismissal of an indictment is required in cases where the grand jury has been overreached or deceived in some significant way, as where false or perjured

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testimony is presented. United States v. Samango, 607 F.2d 877, 882 (9th Cir. 1979). Permitting a defendant to stand trial on an indictment which the government knows is based on perjured testimony cannot comport with this `fastidious regard for the honor of the administration of justice.'" United States v.

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Basturo, 497 F.2d 781, 787 (9th Cir. 1974); citing Communist Party v. Subversive Activities Control Board, 351 U.S. 115, 124, 76 S.Ct. 663 (1956). In Basturo a witness who testified before the grand jury admitted that he perjured himself by providing testimony that was untrue. United States v. Basturo, 497 F.2d 781, 784 (9th Cir. 1974). This witness was the only undisputed person who had knowledge of the defendant's activities with regard to the conspiracy. Id. He informed the prosecutor of his false testimony prior to the commencement of

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trial. Upon learning of the perjury the prosecutor informed defense counsel, but not the court of the grand jury.

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The court held that it violates defendant's constitutional rights when he is subjected to standing trial on an indictment which the government knows is based

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partially on perjured testimony. United States v. Basturo, 497 F.2d 781, 785 (9th Cir. 1974). The court explained that it is the prosecutor's duty upon learning the indictment is based in part on false testimony to correct the cancer of injustice and insure the defendant does not stand trial based on the indictment. Basturo, 497

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F.2d at 784. In the case before this court, the government presented evidence which it knew was false. United States v. Basturo, 497 F.2d 781, 785 (9th Cir. 1974). The substance of this testimony was pervasive and clearly the basis for the indictment

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against Mr. Johnston. The prosecutor never informed defense counsel, the grand jury or the court of the false evidence. The only remedy is to dismiss the indictment to insure the cancer of injustice does not grow. Id. B. The Court has the Inherent Supervisory Power to Dismiss. An Indictment may be dismissed through the exercise of the court's inherent supervisory power. See United States v. Williams, 504 U.S. 36 (1992). This doctrine is well established, setting forth wide ranging supervisory powers which

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exist with respect to the administration of justice in federal judicial proceedings. United States v. Hasting, 461 U.S. 499 (1983). The court also has the authority to conduct an independent investigation to determine whether it has been the victim

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of fraud and if inquiry reveals "that fraud has been practiced upon it or that the very temple of justice has been defiled," it may impose sanctions irrespective of

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the existence of other means of redress. Chambers v. Nasco, Inc., 501 U.S. 32, 4950 (1991). The defendant has suffered actual prejudice as a result of the pervasive false statements presented to the grand jury. The government's violation substantially

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influenced the grand jury's decision to indict or provided grave doubt that the decision to indict was free from the substantial influence of such violations. Bank of Nova Scotia v. United States, 487 U.S. 250, 256 (1988) ("The prejudical inquiry must focus on whether any violations had an effect on the grand jury's decision to

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indict. If violations did substantially influence this decision, or there is grave doubt that the decision to indict was free from such substantial influence, the violations cannot be deemed harmless."). In this case, the agent's false statements constituted a counterfeit and pervasive theory that unquestionably influenced the grand jury's decision to indict Mr. Johnston. This was not one isolated false statement; rather there were many false statements that were perpetuated in support of a tenuous theory.

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But for the false statements, the grand jury would have had no evidence to support the RICO Enterprise theory. Moreover, had the grand jury known that Rudy Kramer claimed he was forced to lie by the ATF, it may well of refused to

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indict Mr. Johnston. See United States v. Kojayan, 8 F.3d 1315 (9th Cir. 1993) (Court remanded for district court to decide whether to dismiss under supervisory

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powers as "sanction for government's misbehavior" without referencing prejudice); United States v. Bernal-Obeso, 989 F.2d 331, 337 (9th Cir. 1993) (without reference to harmless error or prejudice, court remanded for inquiry into whether informant lied to DEA stating: "should the court uncover egregious

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wrongdoing by the government . . . nothing in this opinion forecloses consideration by the court of dismissing the indictment for outrageous government conduct"); See e.g. United States v. Santana, 6 F.3d 1, 10 (1st Cir. 1993) (citing fact that Supreme Court left open the "possibility that the goal of deterring future

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misconduct would justify using the supervisory power . . ."). For the forgoing reasons, the Defendant respectfully requests that this court grant his Motion.

RESPECTFULLY SUBMITTED this 13th day of December, 2005.

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

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

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