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

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Brian F. Russo, Esq. AZ Bar No. 018594 111 West Monroe Street Suite 1212 Phoenix, Arizona (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: FAILURE TO COMPLY WITH DISCLOSURE OBLIGATIONS

COMES NOW the defendant Robert Johnston, by and through counsel, Brian F. Russo, and on behalf of all other defendants 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 and Rule 16 of the Federal Rules of Criminal Procedure dismissing the case against the defendants because the government has failed to comply with its disclosure obligations and this court's order to disclose materials to the defense. This Motion is supported by the Memorandum of Points and Authorities attached hereto.

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RESPECTFULLY SUBMITTED this 7th 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

At the 12th case management conference, the government, through Patrick Schneider, certified to the court that the government has fulfilled all obligations pursuant to Rule 16. The government indicted the defendants and they were subsequently arraigned December 3, 2003. All defense counsel requested discovery at that time. There were numerous subsequent discovery requests and Case Management Conferences dealing with the issue of non-disclosure. (See copy of Docket 813, wherein the Court details the status of, and difficulties with disclosure over the course of nearly two years). Approximately two years later the government still has not complied with its discovery obligations. In fact, at the Eighth case management conference the court stated with regard to "undisclosed documents, videotapes, and surveillance videos" discussed at that conference: The Government has been promising to produce information for months. The Court is frustrated that theses materials have not been produced. The Government is ordered to produce them to Defendants in this case on or before February 18, 2005. Strict compliance with this Order will be expected. [Docket 813, p.11, lines 11-13]. As the Court is aware, and as expected by the Defendants, the Government failed to strictly comply with this Order. The Court was made aware of once again that the government was refusing

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to comply with its disclosure obligations and stated that it "will have confidence that all necessary disclosures have been made only if high-level attention is brought to bear in the Office of the United States Attorney and the Court receives

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unequivocal confirmation that disclosures are complete. The Court will order such high-level confirmation before considering more severe remedies." [Docket 813, p.

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15-16, lines 21-23 and 1-2]. The time has come to issue a remedy commensurate with the willful and flagrant disregard for Rule 16 and the Court's orders. The Court's confidence in the government's "high-level" confirmation is misplaced as the Government has demonstrated an unwillingness to comply at any level. The defense has become aware of additional materials that exist and that are related to the instant case. These materials have been requested ad infinitum. Despite the government's assurances to the court that all discovery has been provided, additional discovery exists that is material to this prosecution and that has not been provided. The following is a summary list of additional items that will be discussed in more detail below. · ATF agents investigated "several homicides" during the instant investigation they "had good cause to believe" were related to the HAMC and this "enterprise." · Minutes of HAMC meetings that contain discussions of criminal activity. · Bank records that show HAMC deposited proceeds of drug and gun sales. · Materials related to control of methamphetamine by HAMC in Arizona. · "Hundreds" of surveillance videos taken of UCs during their interactions with HAMC. · Surveillance logs corresponding to surveillance videos of UCs. · Video tape of execution of search warrant of Donald Smith residence.

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· Video tape of execution of search warrant of Robert Johnston residence. · Video tape of execution of search warrant of Calvin Shaefer residence. The defense submits that after two years of assuring the court that they have complied with discovery obligations and then being shown to have not complied; then being given more opportunities to comply and misstating and misleading the Court and Defense; then not complying again after being ordered by the court to disclose by a certain date; then being required to have a higher-level official certify compliance; and, now being shown again that they have not complied, the defense submits that this is "sufficiently flagrant to justify dismissal." 1

II.

FACTS

The defense will set out and identify the specific materials that remain undisclosed and will identify specific reference to their existence by agents of the government who participated in this investigation. Agent Slatella, in addition to the search warrant affidavit(s) he drafted, was interviewed on July 26, 2004. He was also deposed on November 22, 2004. Both of these confrontations related directly to the investigation of the HAMC which resulted in the present indictment. Agent Slatella discussed the following: A. Murders: During the interview occurring on July 26, 2004 agent Slatella claimed that there were several murders committed for which there is strong evidence that they were committed by the HAMC and this organization enterprise. The conversation went as follows:

Counsel for the defense suggested, at the hearing concerning the nondisclosure of related Titled III wiretaps, that the only way to determine what else exists is to have an evidentiary hearing wherein those involved are required to testify under oath concerning the extent of the investigation and the materials gathered as a result. 5

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Q. Okay. It says ­ this is criminal violations, and it says ­ the affidavit, this affidavit is made in support of warrants to search for and seize evidence in violation of the following federal offenses. Number one, Title 18 USC 1961, et sequential. RICO, including the following types of racketeering activity. On murder. A. Okay. And your question is? Q. There's no murder indicated in this affidavit. Are you referring to some other investigation that you weren't talking about? Q. No. I'm referring to this investigation, where there are several unsolved homicides or homicides that are under investigation that are related we believe to the Hells Angels, their members, and their associates. Those homicides were and some are still under investigation. (Empasis added). The agent's answer continues:

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2. Pg 44, ln 6-9: ..... A. .... Again, I'm not a lawyer, but I will stand behind that that there's open homicides that are under investigation that we have very good cause to believe are related to this organization enterprise. (Emphasis added). (Copy of Reporter's Transcript of Interview with Agent Joseph Slatella, hereinafter "R.T. Slatella" pp. 43-44 attached hereto as Exhibit 1 with face sheet for reference).
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There has been no information related to "several homicides" attributed to this investigation produced to the defense. Any investigative reports or materials

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related to such and investigation in this case is material to the preparation of defendant's case and is discoverable under Rule 16. B. Minutes: During the July 2004 interview agent Slatella also claimed that minutes of meetings were recovered during the execution of the search

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warrants. During the discussion of those minutes, Mr. Slatella claimed that criminal activity is reflected in those minutes. The following is the relevant portion of the Reporter's Transcript: Q. Has it ever been reported to you that there's criminal activity

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reflected in those minutes? A. Absolutely. Q. What kind of criminal activity? A. The type of criminal activity that's enumerated in the statutes in the affidavit. (R.T. Slatella p. 47, ln 6-11 attached hereto as Exhibit 2) Q. ...I'm just looking to see if you've ever seen a minute where

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they said we discussed the sale of guns, or we discussed the sale of dope, or we discussed killing this guy.

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A. I have not seen the written document. I am aware that that type of discussion has taken place. And I'm aware that that type

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of discussion has been notated in certain meetings in their minutes in a germane form.

(R.T. Slatella p. 48, ln 19-25, p.49, ln 1 attached hereto collectively as Exhibit 2). A comprehensive review of discovery has not revealed any such documents having been disclosed to the defense. The materiality of such documents is obvious under Rule 16; however, the government has not provided them to the defense. It is anticipated that either Agent Slatella is lying about these documents, which necessarily implicates his credibility concerning the search warrant affidavits and

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the case in general, or the United States Attorney's Office is again flagrantly and arrogantly avoiding disclosure. C. Bank Records: During this same interview of agent Slatella the topic of bank records is discussed. Agent Slatella is asked whether bank records exist

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which show the proceeds of illicit sales of guns or drugs. The agent stated: "The answer is yes." (R.T. Slatella p. 49, ln 21-25 is attached as Exhibit 2). Yet, to date, no such bank records showing deposits of illegal proceeds have been disclosed.

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D. Methamphetamine: Another topic during the interview of Mr. Slatella was HAMC control of the methamphetamine trade in the entire State of Arizona.

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That conversation went as follows: Q. Would you agree with me that Hells Angels do not control methamphetamine in Arizona? A. It's a very broad statement, but generally speaking I would

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say that the Hells Angels have a very large control of a specific
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methamphetamine market in the state of Arizona.
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Q. What is that market?
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A. Again, I'm not going to go down the investigative avenues.
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(R.T. Slatella p.56, ln 18-21 attached hereto as Exhibit 3).
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It is important to note that the Interview of Agent Slatella was being
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conducted in July of 2004 and focused in large part on the statements he made in his affidavit to the court on July 2, 2003 in support of a search warrant. His statements and theories of the case contained therein were also those used to obtain warrants for various forms of electronic surveillance in the Pancrazi matter.

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However, in the instant case, a review of the materials produced regarding methamphetamine transactions from May 13, 2002 through July 7, 2003 there were a total of 21 transactions that involved less than one gram and 22 transactions involving between 1 and 3.5 grams. The largest transaction in a 19 month

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investigation was one ounce. Approximately 20 individuals were involved in these transactions.

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The Pancrazi matter concluded with the theory that HAMC was controlling methamphetamine in the state of Arizona being refuted. That is, Pancrazi's suppliers were from Mexico and the HAMC had nothing to do with the running of Pancrazi's enterprise; the investigation with regard to the Hells Angels members in

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that case showed that there were merely individual members purchasing mostly small quantities of personal use methamphetamine. Most importantly though, there have been no materials produced that support Agent Slatella's theory that the HAMC is controlling the

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methamphetamine market in the state of Arizona. Clearly, given the nature of the RICO allegations and the underlying predicate acts involving drug transactions, such materials would fall squarely within Rule 16 of the Federal Rules of Criminal Procedure. E. Surveillance Videos of UCs during their activities with HAMC: The defense has made numerous requests in Motions and Matrices for the surveillance video tapes of events occurring throughout the investigation. The

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government has claimed in the Matrix2 that they have disclosed 5 tapes and will disclose the additional 6 tapes later. This would be a total of merely eleven (11) such video tapes. On July 8, 2004 Detective Sarasarus of the Glendale PD, who

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was temporarily assigned to work with the ATF in connection with this investigation, was interviewed in connection with the invasion of the Cave Creek

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clubhouse. The Detective was assigned to the ATF and specifically reported to Agent Slatella. During this interview the detective stated that following: DS: I was in charge of duplicating any documents, electronic

surveillance and I was also assigned to operation over, I was the one
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who would actually write up operation after consulting with our undercover finding out what we were going to do for that day, that week, that month whatever it might be, writing up operations order making sure that the ATF side of it had all of the correct OP plan and

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then actually running the surveillance. RS: DS: Okay, what type of surveillance was performed? Actually our surveillance was to cover our undercover,

whether that be you know twenty-five cars, an airplane whatever it may be, it kind of depended what the situation. RS: DS: Okay, was there video surveillance? Yes, there was electronic surveillance, both audio and

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video. RS: DS: Okay, was that reported? Yes.

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RS:

Now was there surveillance, I mean officers everyday

they were involved?
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DS: RS:

Yes. In the undercover capacity? So I presume there's

hundreds of videotapes. DS: More or less, yeah. Audiotapes as well? Yes.

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RS: DS:

(R.T. Sarasarsus p 8, ln 1-23 attached hereto as Exhibit 4). The defendants have made numerous requests for the "hundreds of

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videotapes" repeatedly throughout this litigation. These items are material to the preparation of a defense, both at the motions stage, as well as at the trial stage. It cannot be seriously argued that videotape surveillance, including audio that documented the entire operation by the UCs does not fall within the purview of Rule 16. The government simply refuses to comply with its Rule 16 obligation, which raises the logical question; what are they trying to hide? F. Surveillance Logs

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The government claims that surveillance logs related to the surveillance of the UCs do not exist. This is simply contrary to the normal investigative procedures by law enforcement when conducting surveillance. Surveillance logs

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are routinely kept, documenting the events occurring by date, time and location. In fact, the government has produced some of the surveillance logs from the Pancrazi

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investigation and some from the instant investigation, but not from the Surveillance of the UCs as referenced above in section E. However, Detective Sarasarsus explains in his intereview that it was his job to record and keep track of the surveillance. He calls the logs operation plans and

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explains them as follows: DS: That's an operation plan basically just stating who was going to

be on operation and what undercover were going to be involved and where our undercover teams were going to be, and where we were

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going and what the estimated time frame was going to be? (R.T. Sarasarsus p. 9 ln 21-25 Exhibit 4). Clearly, these are the materials that have been repeatedly requested from the government and it is obvious that it is only the government's purposeful obtuseness that allows them to claim they do not exist. The Detective stated that these materials exist. He performed theses duties as part of his job in this investigation and reported to Agent Slatella; thus, the government knows these

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materials exist.

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G. Videotape of execution of search warrant of Donald Smith Residence On November 17, 2005 an evidentiary hearing was held in the matter of

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United States v. Acosta in the United States District Court wherein defendant Donald Smith filed a Motion to Suppress evidence obtained as a result of an unlawful search of his residence. An Agent of the ATF testified concerning the execution of the warrant and

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the resulting search. A search warrant for defendant Smith's residence, which is in Arizona, was secured based on the affidavit of Agent Slatella. The Agent testified at the hearing that a video recording was made of the search of Donald Smith's residence. He also stated that the video tape is in the

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ATF evidence vault. A transcript of the hearing has been requested, but was not ready in time for its attachment to this Motion. However, the defendant will supplement this Motion with a copy of the relevant portions of the transcript when they arrive. The defendant further makes an avowal to the court as to the content of the forgoing assertion. The government has not provided this tape to the defense for preparation of their case.

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H. Videotape of execution of search warrant of Robert Johnston Residence On July 8, 2003 the ATF executed a search warrant at the residence of Robert Johnston located at 2824 North Cholla, Chandler, Arizona 85224. This incident

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was videotaped by the search team. The defendant has not received a copy of this videotape for the preparation of his case.

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It is known that the search was videotaped because the defendant's wife, Linda Johnston was present during the execution. In fact, she was told by an agent that they were waiting for the video camera that was being used at Calvin Schaefer's residence around the corner. Linda Johnston will submit an affidavit in support of

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the forgoing assertions and is available to testify at an evidentiary hearing. I. Videotape of execution of search warrant of Calvin Schaefer's Residence On July 8, 2003 the ATF executed a search warrant at the residence of Calvin Schaefer located at 864 West Marlboro Drive, Chandler, Arizona 85225. This

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incident was videotaped by the search team. Mr. Schaefer's brother Todd Schaefer and his fiancé Holly Buttenhoff were present when the search was executed and the tape was made. The defendant has not been provided a copy of this tape for the preparation of his case. Ms. Buttenhoff will submit an affidavit in support of these assertions and is available to testify at an evidentiary hearing. Mr. Todd Schaefer will also submit an affidavit and is available to testify.

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III.

LEGAL ARGUMENT

"[G]uided by considerations of justice," McNabb v. United States, 318 U.S. 332, 341 (1943), and in the exercise of supervisory powers, federal courts may,

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within limits, formulate procedural rules not specifically required by the Constitution or the Congress. The purposes underlying use of the supervisory

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powers are threefold: to implement a remedy for violation of recognized rights, McNabb, supra, at 340; Rea v. United States, 350 U.S. 214, 217 (1956); to preserve judicial integrity by ensuring that a conviction rests on appropriate considerations validly before the jury, McNabb, supra, at 345; Elkins v. United

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States, 364 U.S. 206, 222 (1960); and finally, as a remedy designed to deter illegal conduct." United States v. Hastings, 461 U.S. 499, 506, 103 S.Ct. 1974, 1979 (1983). The trial court, when faced with a violation of Fed. R. Crim. P. 16, may order

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the offending party to permit inspection, grant a continuance, or prohibit the party from introducing evidence not disclosed, or it may enter such order as it deems just under the circumstances. Fed. R. Crim. P. 16(d) (2). "The appropriate sanction for a failure to comply with a discovery rule rests in the district judge's sound discretion." United States v. Gee, 695 F.2d 1165, 1168 (9th Cir. 1983). Dismissal of the charges with prejudice is permitted in cases of flagrant Government misconduct. United States v. Simpson, 927 F.2d 1088, 1091 (9th Cir. 1991). This case presents the perfect example of flagrant misconduct by the Government's willful refusal to comply fully with Rule 16 and the Court's orders. Gee, 695 F.2d 1165 (9th Cir. 1983). This Court has provided the Government more

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than sufficient opportunity and warning concerning its problems with disclosure. [See Generally Docket 813]. The Court has ordered disclosure and extended

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deadlines numerous times, granted many continuances, and ordered a high-level official to certify compliance. Still, the Government has not done what it is supposed to do and clearly no amount of judicial remedy short of dismissal will protect the defendant's rights and ensure against future violations of theses

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recognized rights. Put simply, if the Government was not prepared to produce discovery, it should not have indicted the defendants. The Court stated in its order dated September 14, 2005 that it "will order such [high-level] attention before considering dismissal." [Docket 813 p.2 ln 7-8]. This

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high-level attention did nothing to further the proper disclosure of materials and was merely an empty gesture designed to placate the Court. Dismissal is the only just and appropriate sanction under the circumstances. The defendant's cannot effectively prepare and present substantive Motions or prepare for trial in compliance with the court's order when the Government will not produce materials in it possession necessary to such preparation. In fact, the Government admittedly produced volumes of materials designed to

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make the defense waste time, resources and energy instead of providing Rule 16 materials. It is disgusting and disturbing that the Government would arrogantly admit to such gamesmanship when some of the defendants face what could be a

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life sentence for them. This is not a game to Robert Johnston who is someone that the Government wasn't even sure, in July 2003 when Slatella wrote his affidavit,

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they were going to indict. 2 This type of flagrant misconduct demands dismissal. IV. CONCLUSION

It is easy to see from the forgoing that the government's refusal to comply with Rule 16, and this Court's numerous orders to do so, constitute sufficiently flagrant

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Government misconduct to justify dismissal of the charges. It is not difficult to extrapolate from the Government's reluctance to provide Rule 16 materials that they have something to hide because it is unimaginable that it would take 2 years to produce materials that the Government has had in its possession for almost 4

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years. Finally, it is extremely revealing that the Government is willing to risk severe sanctions after sufficient warnings from the Court by continuing to keep secret what they are obligated to provide to the defense. The defense asks for nothing more than that to which they are entitled in order to defend themselves. Dismissal of the charges is in the interests of justice under these circumstances. RESPECTFULLY SUBMITTED this 7th day of December, 2005. /s/ Brian F. Russo Brian F. Russo Attorney for Defendant Johnston

In his Interview, Agent Slatella indicates that there were several individuals that had either not been accepted for prosecution or there was a question whether or not they would be prosecuted. Robert Johnston was one of the individuals named by Agent Slatella. (R.T. pp. 26-27 attached hereto as Exhibit 5). 18

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COPY of the foregoing electronically mailed / delivered this 7th day of December, 2005, to: Timothy Duax Keith Vercauteran Assistant U.S. Attorney All Defense Counsel /s/

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