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 ARIZONA

UNITED STATES OF AMERICA, Plaintiff, vs. ROBERT J. JOHNSTON, Defendant.

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Case No. CR03-1167-PHX-DGC MOTION TO RECONSIDER AND SUPPLEMENTAL GROUNDS FOR MOTION FOR DISCLOSURE OF GRAND JURY TRANSCRIPTS

(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 to Reconsider its order denying disclosure of the grand jury transcripts, pursuant to the United States Constitution and Rule 6(e)(3)(E)(ii) Federal Rules of Criminal Procedure and hereby submits supplemental grounds alleging that the government presented known false and misleading testimony to the grand jury in addition to the false material alleged in defendant's first Motion for Disclosure of Grand Jury transcripts. Put simply, the defendant has uncovered new false evidence presented to the grand jury.

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Mr. Johnston respectfully requests that this court set an evidentiary hearing and thereafter make a ruling that either the transcripts be produced to the defense, be reviewed by the court in camera, or appoint a special master to review and make recommendations to the court concerning the requested disclosure. This Motion is supported by the Memorandum of Points and Authorities attached hereto and hereby incorporates the facts and legal argument set forth in his prior Motion concerning grand jury transcripts.

RESPECTFULLY SUBMITTED this 13th ay 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 defendant previously moved the court for disclosure of grand jury
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transcripts based on the assertion that under Rule 6(e)(3)(E)(ii) defendant can show that grounds "exist to dismiss the indictment because of a matter that occurred before the grand jury." Mr. Johnston's Motions concerning his request for grand jury transcripts and the supplements filed thereto are incorporated herein by

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reference. Defendant Robert Johnston's previous Motion set forth grounds to dismiss the indictment in this case due to evidence presented to the grand jury that was gathered from an investigation that was conducted using confidential informants

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and undercover agents. The government has since superseded the first indictment, two times and presumably presented evidence to the subsequent grand juries that was presented in the previous presentations. Mr. Johnsotn previously alleged that the confidential informant listed as CI-790 was arrested and during his incarceration stated that the ATF was forcing him to lie and sign a statement that was not true. CI-790 also stated that law enforcement was threatening him to make false statements. The information gathered by him,

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and passed on to law enforcement as part of their investigation, was necessarily
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presented to the grand jury and was known to be false at the time of its presentation.

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Mr. Johnston's current Motion is being filed as a supplemental request for grand jury transcripts based additional assertions of false evidence being presented to the grand jury. The new grounds are that knowingly false evidence was presented to the grand jury in the form of testimony claiming that Presidents and

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Vice Presidents of the HAMC discuss criminal activity at Officer's Meetings and church meetings. In addition, the government claims that the HAMC Officers are to report back to the membership about criminal activity discussed at the meetings. Also, the government claims that HAMC records kept by the secretary/treasurer

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indicate proceeds of criminal activity. These claims are false and are contradicted by evidence obtained by the government during their investigation of the HAMC. The relationship between the false statements and the grand jury testimony will be set forth in more detail below, as well as supporting documentation showing that the evidence is false. However, as a general showing, it is necessary to understand that the government presented evidence in support of the "Enterprise" allegation based on Agent Slatella's sworn testimony concerning the

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allegations about HAMC Officer's Meetings. That is, these factual assertions contained in Agent Slatella's affidavit would necessarily have been part of the testimonial presentation to the grand jury; and Agent Slatella and the government

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were in possession of evidence that contradicted these false assertions at the time of the grand jury presentations.

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II.

FACTS

The Indictment in this case alleges that: The HAMC, including its leadership, membership, and associates constitutes an "enterprise", as defined by Title 18, United States Code, Section 1961(4). The enterprise constituted an ongoing organization whose members functioned as a continuing unit for a common purpose of achieving the objectives of the enterprise. This enterprise was engaged in, and its activities affected, interstate and foreign commerce. B. Purposes of the Enterprise 3. The purposes of the enterprise included the following: a. Enriching the associates and members of the enterprise, and advancing the interests of the associates and members of the enterprise through, among other things, murder, attempted murder, conspiracy to murder, witness intimidation and distribution of controlled substances. [Emphasis added].

Agent Slatella 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. 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

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Vice Presidents attend Officer's Meetings and are responsible for informing their charter of any criminal directives provided at the meetings. (Copy of pages 29-30, July 2, 2002 Affidavit are attached hereto as Exhibit 1). Agent Slatella also swears

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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

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Exhibit 2). And, that minutes of meetings contain specific reference to criminal activity. (See Exhibit 2, ¶3 and R.T. Interview of Agent Slatella, July 26, 2004, p.47-49 in 6-11 attached hereto as Exhibit 3). Finally, Agent Slatella claims that there were several murders committed by the HAMC and this organization

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enterprise. (R.T. Interview of Agent Slatella, July 26, 2004, pp.43-44 attached hereto as Exhibit 4). A thorough review of all evidence produced has failed to uncover any of the referenced materials alleged to exist by the agent. The defense was provided video

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and audio recordings of HAMC Officer Meetings and church meetings, that were secretly recorded by Michael Kramer who is also known as CI-376. 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 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

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Slatella testified before the grand juries. He necessarily would have presented the same information contained in his affidavit to the grand jury in support of RICO
Reference is made to Defendant's Motion to Dismiss [Docket 930] detailing the Rule 16 materials not produced. 6

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and RICO conspiracy charges. However, based on the lack of evidence and the existence of evidence that directly contradicts his testimony, false evidence was

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knowingly presented to the grand jury. It is also important to note that as of July 2, 2003 when Agent Slatella drafted his affidavit is support of the search warrant, the government selected several individuals that had either not been accepted for prosecution or there was a

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question whether or not they would be prosecuted. Robert Johnston was one of the individuals named by Agent Slatella. (R.T. Interview Agent Slatella, July 26, 2004 pp. 26-27 attached hereto as Exhibit 5). The investigation in this case had ended and there was no new evidence

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gathered concerning Robert Johnston after July 2, 2003, the date on which Slatella drafted the affidavit. The first incitement was secured by the government in November 2003. This raises obvious questions about the way in which evidence was presented to the grand jury that can only be answered by a thorough review of the transcripts. The government continues to proceed with a prosecution based on fabrication and falsehoods. The grand jury transcripts are germane to providing

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detailed support for defendant's Motion to Dismiss based on improprieties occurring before the grand jury in violation of defendant's due process rights.

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Thus, the court should order the production of the transcripts in order to insure that the defendant is not tried on an indictment based on false testimony.

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III. LEGAL ARGUMENT Disclosure is appropriate where the need outweighs the interest in continued grand jury secrecy. Douglas Oil v. Petrol Stops Northwest, 441 U.S. 211, 223 (1979); See United States v. Proctor & Gamble, 356 U.S. 677, 683 (1958)

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(Defendants failed to show compelling need for disclosure of transcripts to avoid prejudice or injustice, where defendants only need was that government had them and was using them in a civil case). Once the grand jury functions have ended, disclosure of transcripts is wholly proper where the ends of justice require it.

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Dennis v. United States, 384 U.S. 855, 870 (1966). In Dennis, the defendants showed, among other things, that witness testimony was inconsistent and mistaken. Id. at 872-73. The Court held that the particularized need made by the defendant's goes substantially beyond the minimum required by Rule 6(e). Id. at 872. The Court reasoned that in a conspiracy case which carries with it the inevitable risk of wrongful attribution, "it is especially important that the defense, the judge and the jury should have the

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assurance that the doors that may lead to truth have been unlocked." Id. at 873. In the case before this Court, Defendant Johnston has shown indisputably that a witness who participated substantially in the investigation is claiming that

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the government threatened him if he did not lie and that false evidence unsupported by any disclosure was presented to the grand jury. The ends of justice require

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disclosure of the transcripts to insure that Mr. Johnston is not tried on an indictment based on false testimony. "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

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

indictment, the defendant's due process rights have been violated and the indictment must be dismissed. Id.

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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 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. 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,

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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.

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He informed the prosecutor of his false testimony prior to the commencement of trial. Upon learning of the perjury the prosecutor informed defense counsel, but not the court or the grand jury. The falsehoods and untruths promulgated by the government continue to be

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uncovered in this case; not only does Rudy Kramer claim that he was forced to lie by the ATF, but now it is known that the Agent has presented evidence that is unsupported by the investigation. These are clearly matters that would provide for a Motion to Dismiss and indisputably favor disclosure of the grand jury transcripts.

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RESPECTFULLY SUBMITTED this 13th day of December, 2005.

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

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

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