Free Motion for Bill of Particulars - District Court of Arizona - Arizona

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BRIAN F. RUSSO (018594) Attorney at Law 111 West Monroe, Suite 1212 Phoenix, AZ 85003 602-340-1133 telephone 602-258-9179 facsimile e-mail: [email protected] Attorney for Defendant Johnston UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

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

) Case No.: CR03-1167-PHX-DGC ) ) ) MOTION FOR A BILL OF ) PARTICULARS ) ) ) ) ) )

Defendant, ROBERT JOHNSTON, by and through counsel undersigned, hereby moves this court to order the government to file a bill of particulars specifying the conduct and time involved in the allegation that he engaged in witness tampering and specificity that he conspired to distribute methamphetamine and marijuana. This motion is based on the attached Memorandum of Points and Authorities incorporated by reference herein. RESPECTFULLY SUBMITTED this 12th day of December, 2005.

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

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MEMORANDUM OF POINTS AND AUTHORITIES BACKROUND: Defendant Johnston is alleged to have committed racketeering by being a member of the Hells Angels and committing two predicate acts of racketeering.

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Paragraph 12 of the Indictment states as follows: On or about December 10, 2002, through January 29, 2003, in the District of Arizona, Defendant, Robert J. Johnston, Jr., knowingly used physical force, or threatened to use physical force against Rudolph Kramer, or attempted to do so, with the intent to hinder, delay or prevent the communication to a law enforcement officer of the United States of information relating to the commission or possible commission of a federal offense. In violation of Title 18, U.S.C. § 1512(b)(3). Paragraph 27 of the Indictment states as follows: From about August 2002, until July 8, 2003 in the District of Arizona, Defendant, Robert J. Johnston, Jr., unlawfully, knowingly, and intentionally combined, conspired, confederated and agreed together with others known and unknown to the Grand Jury to distribute methamphetamine, a schedule 2 controlled substance, and marijuana, a schedule 1 controlled substance. In violation of Title 21, U.S.C. §§ 841(a)(1), 841(b)(1)(B) and 846. These are the only two predicate acts that have been alleged against Mr. Johnston. In addition, in count 2 Defendant Johnston is alleged to have engaged in a RICO conspiracy.

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Defendant has received discovery in this matter, however, as the court has previously noted in its Orders, the Government has been less than forthcoming with the totality of discovery. The discovery that Defendant has received to date does not contain any allegation that the Defendant knowingly used physical force or threatened to use physical force against confidential informant Rudolph Kramer. In addition, the discovery contained to date does not show that Defendant Johnston

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ever conspired to distribute methamphetamine. Defendant seeks a Bill of Particulars that sets forth any alleged dates that Defendant Johnston allegedly tampered with a witness and the time, place and parties to the conspiracy alleged in paragraph 27.

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FACTS: The Indictment in this case alleges that the 16 Defendants were members of the Hells Angels. Count 1 alleges RICO violations. It identifies the HAMC, "its leadership, membership and associates" as constituting the enterprise. The Indictment is vague on whether the HAMC is a legitimate enterprise through which the Defendants are engaging in racketeering conduct or whether the HAMC is a wholly illegitimate enterprise. The predicate acts of racketeering include 20 acts set forth in paragraphs 7 through 27. These acts include the kidnapping and murder of Cynthia Garcia, witness tampering, the Laughlin, Nevada shootout, conspiracy to murder a rival

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motorcycle club member and the conspiracy and distribution of methamphetamine and marijuana. Count 2 alleges a RICO and RICO conspiracy. Counts 3 through 6 allege violent crimes in aide of racketeering, Count 7 alleges conspiracy to commit VCAR. Counts 10 through 43 allege various acts of illegal conduct directed at specific individuals. Defendant Johnston is only charged with RICO and RICO conspiracy. He

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seeks a Bill of Particulars to determine whether there is any conduct under Count 1 sufficient to present a RICO violation. LEGAL ARGUMENT: The Supreme Court has stated that the purpose of an indictment is to inform

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the accused of the charges so that they may prepare a defense, and to protect against double jeopardy. Russell v. United States, 369 U.S. 749 (1989). Berger v. United States, 295 U.S. 78 (1935). A Bill of Particulars has three functions: 1) To inform the Defendant of the nature of the charge against him with sufficient precision to enable him to prepare for trial, 2) to avoid or minimize the danger of surprise at the time of trial, 3) to enable him to plead his acquittal or conviction in bar of another prosecution for the same offense when the indictment itself is too vague and indefinite for such purposes. U.S. v. Brimley, 529 F.2d 103 (6th Cir. 1976).

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The decision on whether to grant a Bill of Particulars is within the sound discretion of the trial court. U.S. v. Chavez, 845 F.2d 219 (9th Cir. 1988). A Bill of Particulars should be ordered when it will avoid or minimize surprise at trial and permit the preparation of an adequate defense. United States v. Davidoff, 845 F.2d 1151 (2nd Cir. 1988). Because a Bill of Particulars is founded on the Sixth Amendment right to

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defend, doubt must be resolved in favor of disclosure. Otherwise, prejudice would result. Prejudice is defined in terms of the impairment of the Defendant to intelligently and effectively mount a defense. When a charging document lacks sufficient particularity to allow a defendant to prepare a defense, defendant's

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ability to confront adverse witnesses and to use exculpatory process is seriously inhibited. His right to due process thus is clearly implicated. As Professor Wright summarizes: The function of a Bill of Particulars is to provide defendant with information about the details of the charge against him or her if this is necessary to the preparation of the defense, and to avoid prejudicial surprise at trial. ... [T]he test in passing on a Motion for a Bill of Particulars should be whether it is necessary the defendant have the particulars sought in order to prepare the defense and in order that prejudicial surprise will be avoided. A defendant should be given enough information about the offense charged so that he or she may, by the use of diligence, prepare adequately for trial. ... [T]he issue on the Motion for a Bill of Particulars is not whether the defendant knows but what the government intends to prove. ... [T]he Bill of Particulars ... [i]s not intended as such, as a means of learning the governments evidence
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and theories. But to the extent that information is needed for the proper purpose of the Bill, it will be required even if the effect is disclosure of evidence or of theory. Charles Allen Wright, Federal Practice and Procedure, § 129 (Third Edition 1999). In large and complex RICO prosecutions like this where there is a large amount of discovery, a Bill of Particulars may be especially warranted. In United

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States v. Davidoff, supra., the court held that in a RICO case that the failure to order a Bill of Particulars was an abuse of discretion even though the government had provided over 6000 pages of discovery materials. In Davidoff the court found undue surprise when the government relied on uncharged offenses at trial to prove

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the existence of an enterprise. In another 2nd Circuit case, United States v. Bortnovsky, 820 F.2d 572, 575 (2nd Cir. 1987) the court found that the denial of a Bill of Particulars in a RICO case was also an abuse of discretion. In Bortnovsky the defendants were charged with a scheme to defraud the government by reporting fake burglaries. The government disclosed over 4000 documents. The court stated: We conclude that appellants were hindered in preparing their defense by the District Court's failure to compel the government to reveal crucial information; the dates of the fake burglaries and the identity of the three fraudulent documents. Appellants were forced to explain the events surrounding 8 actual burglaries and to confront numerous documents unrelated to the charges pending. In effect, the burden of proof impermissibly was shifted
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to appellants. While we commend the government for cooperating and turning over the documents prior to trial, we do not look with favor on the manner in which the government conducted the prosecution. The relevance of key events was shrouded in mystery at the commencement and throughout the trial. The government did not fulfill its obligations merely by providing mountains of documents to defense counsel who were left unguided as to which documents would be proven falsified or which of some 15 burglaries would be demonstrated to be staged. ... [I]n sum, we find that the District Court erred by failing to grant a Bill of Particulars which was vital to appellants understanding of the charges pending and to the preparation of a defense and which would have prevented the government in its attempt to proceed furtively. U.S. v. Bortnovsky, supra at 574-75. In this case the Defendant is charged with RICO and two predicate acts,

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witness tampering and conspiracy to distribute methamphetamine and marijuana. Despite diligent effort by counsel to ferret through the mountains of discovery that the government has provided, there is no indication that Defendant Johnston, at any time, attempted to tamper with a witness as alleged in the Indictment. There are references and recordings reflected in ROIs of discussions about Rudy Kramer's incarceration by Bob Johnston; none of them provide sufficient evidence witness tampering as alleged in the indictment. With respect to the conspiracy to distribute methamphetamine and marijuana, again, a thorough review of the discovery materials provided fails to show that Defendant Johnston conspired with anyone to distribute any illegal drug.

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Assuming the truth of the allegations contained in the reports of investigation, the best that can be said is that Defendant Johnston possessed with intent to use methamphetamine and marijuana. This, of course, assumes that the government could some how prove that any amount he ingested was, in fact, methamphetamine or marijuana, a matter that is highly unlikely since it does not appear that any drugs were ever confiscated from him.

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Assuming that the government intends to offer proof outside of the discovery that it has provided to attempt to prove the predicate charges, the necessity of a Bill of Particulars is clear. Defendant Johnston cannot adequately prepare a defense to matters for which he has no notice and will definitely

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experience surprise at trial if other evidence outside of discovery is used in this regard. The Court has already expressed disfavor in the manner in which the government has conducted this prosecution. It is not difficult to see that key documents regarding material information concerning Mr. Johnston has either been shrouded in secrecy or altogether not disclosed. United States v. Bortnovsky, 820 F.2d 572, 574-75 (2nd Cir. 1987). If more particularity is not provided, a number of defenses that may otherwise be present may be unavailable to the defense. For example, if the court granted the Defendant's request, the Defendant may be able to show that on the date that he allegedly threatened Rudy Kramer he was in another place, was with

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other persons or the conversation otherwise never took place. With regard to the alleged drug conspiracy the same holds true. It is also an important defense to the conspiracy element as to who he allegedly conspired with. If his co-conspirators were, in fact, government agents then there was no conspiracy. United States v. Escobar de Bright, 742 F.2d 1196 (9th Cir. 1984). 1 CONCLUSION:

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Defendant requests that the Court order the government to file a Bill of Particulars stating the date or dates the Defendant allegedly tampered with a witness and the dates, places and parties relevant to any alleged conspiracy to distribute marijuana and/or methamphetamine.

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RESPECTFULLY SUBMITTED this 12th day of December, 2005.

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

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Defendant is alleged to have spoken to the undercover officers about drugs on 08/01/02, 10/24/02, 10/25/02, 11/14/02, 01/16/03, 01/21/03 and 05/25/03. All of these conversations involved personal use of marijuana or meth.

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COPY of the foregoing sent electronically this 12th day of December, 2005, to: Tim Duax Keith Vercauteran Asst. U.S. Attorneys All Defense Counsel

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By:

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