Free Response - 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 85003 E-mail: [email protected] (602) 340-1133 telephone (602) 258-9179 facsimile Attorney for Defendant Robert Johnston Jr.

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IN THE UNITED STATES DISTRICT COURT IN AND FOR THE DISTRICT OF ARIZONA United States of America, ) ) ) ) ) ) ) ) ) ) Case No.CR 03-1167 PHX-DGC DEFENDANT'S RESPONSE TO GOVERNMENT'S MEMORANDUM IN SUPPORT OF ITS CERTIFICATION OF COMPLIANCE WITH RULE 16

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Plaintiff,
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vs.
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Robert J. Johnston, et al.
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Defendant.
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COMES NOW the defendants ROBERT JOHNSTON, DONALD SMITH, KEVIN AUUSTNIAK by and through their attorneys, Brian F. Russo, Mark Paige and Patricia Gitre respectively, and on behalf of all other defendants, hereby submit this Response in opposition to the government's Memorandum first filed ex-parte and then re-filed redacted. This Motion is supported by the Memorandum of Points and Authorities attached hereto. RESPECTFULLY SUBMITTED this 4th day of November, 2005.

/s/Brian F. Russo 24 25

Brian F. Russo Attorney for Defendant

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MEMORANDUM OF POINTS AND AUTHORITIES I. EX PARTE FILING The government's ex parte filing was improper. The government filed a fourteen page memorandum with the court attempting to explain its behavior over the last twenty-two months. The memorandum set forth the government's view, albeit rather revised, of the discovery issues pending before the court. The memorandum addressed matters pending before the court, such as the discoverability of materials, the meaning of F.R.Cr.P., Rule 16, the relevance and materiality of items and the government's compliance with its obligations. The government's own explanation for the submission, at page 3, line 15ff, is to justify its bad behavior documented by the court and countless defense filings.

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Several motions regarding discovery were pending before the court at the time of the
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government's filing. These motions addressed the issues of materiality of certain items listed in the Matrix2, timing of disclosure of Brady materials and the government's application for a protective order. These motions were ruled on by the court on October 12, 2005; however, the parties were not made aware of this until October 18, 2005. In addition, "pending" before the court was the issue of the government's compliance with its obligations to produce discovery. The court's Order, dated September 14, 2005, quite accurately described the government's behavior over the proceeding twenty or more months. Due to such poor behavior and misrepresentations of law and fact, the court ordered the Criminal Department Chief or a comparable officer to come into court and certify the government's compliance with its discovery obligations or that it would do so by October 21, 2005. However, the government also took this opportunity to cast aspersions upon the character

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of the defendants and their attorneys. This will be discussed more fully below in Section III.
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Simultaneously, while disparaging defendants and counsel, the government patted itself on the
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back for its immense generosity in providing non-relevant, immaterial and voluminous

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discovery, apparently out of scrupulous attention to the details of criminal procedure. 1 The court's seventeen page Order, dated September 14, 2005 contradicts the government's attempts at self-aggrandizement.

II.

Rewriting History The government claims that a "different and more simplified classification" of Rule 16

materials would be more helpful and attempts to make 3 categories of materials. (Government's Memo at p.4, lines 4-8). Once again the government demonstrates its failure or unwillingness to understand the instant litigation. Materials from the "Arizona" investigation are the same as

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those in government's group 3; only the government refuses to see this. The agents, CIs and
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defendants/suspects are the same. This point was detailed at the August 25, 2005 hearing wherein counsel explained the interrelatedness of the investigations. This seemed to have been acknowledged by the government at that hearing; but is now contradicted in their brief. The government calls its group 2, the "Las Vegas" investigation and claims that it is "somewhat related." What the government calls the Las Vegas investigation is the Laughlin incident, being presented by the United States in the District of Nevada that the United States in the District of Arizona has charged as a predicate act in the instant indictment. One can presume they intend on presenting evidence to the jury in support of this allegation. As such, it is not "somewhat related;" rather it is an allegation in the instant indictment to which the defendants are entitled to materials that assist in the preparation of their case. The government's relaxed attitude toward providing materials related to what they charged in the indictment, again

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demonstrates their unwillingness to provide the defendants with the materials necessary to
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defend themselves. Thus, recategorization is yet another attempt by the government to mislead.
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The government's memorandum is replete with contradictions, for example, at page 11 of its filing, the government claimed that this same generosity was part of a strategy to overwhelm and distract the defendant's counsel from preparation for trial.

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Category 3 is a complete fabrication and reverses the government's supposed understanding of their obligation to gather materials related to this case. The Defendants have attempted to gather materials they believe exist because it is material to the preparation of their case. Any suggestion or attempted inverse relatedness argument put forth by the government is spurious. The government simply does not understand its obligation and will not comply. The government's premise that these materials are not part of the "Arizona" investigation is false and not accepted by the defense. Therefore, the government's argument claiming these are "somewhat related" materials is erroneous and misleading to the court. It is an attempt to shift the argument in a direction that makes it look like they are merely resisting efforts to obtain

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material not related to this case, which has been shown to be false.
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As further example, at pages 2-3 of its ex parte memorandum, the government attempts to apologize for failing to abide by court Orders and its own promises to provide information. Yet, at the same time, claiming that its legal arguments made in resisting disclosures relating to the Laughlin Shooting (Nevada investigation) were legally correct. The government supports this theory by stating (at page 3, ln 2ff) that "... the vast majority of the Nevada material was not covered by Rule 16, either because it was irrelevant to the case and immaterial to the defense, or excepted from disclosure by Rule 16)(a)(2) or the Jencks Act. That vast majority of material therefore is not subject to Rule 16's disclosure timetable, or any other timetable." 3 The government has never previously argued that any of the material from the Laughlin Shooting incident (Nevada investigation) was exempted from Rule 16. The government has never argued that the material was irrelevant and immaterial. Previously, counsel for the

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government conceded on the record that the cases were related. Now it seems at the July 8, 2005
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case management conference the court inquired of Mr. Vercauteren as to the three individuals
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prosecuted in both the Districts of Nevada and Arizona. Mr. Vercauteren, presumably speaking

2 The government goes on to say that clarifying this point is the purpose of this memorandum because this issue is at the "heart of all remaining discovery disputes. Further, evidence that government counsel's decision to file ex parte was a deliberate attempt to deny defendants due process and prejudice the court against the defendants and defense counsel.
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for the government, indicated that he was unsure of the nature of the prosecution in the District of Nevada. Their present argument as to Rule 16 is a fine piece of revisionism, as well as an example of the ongoing deficiencies detailed in the court's Order dated September 14, 2005.

III.

False Statements in the Ex Parte Memorandum

The government suggests that the HAMC are directing members to request, through their attorney's, broad disclosure for nefarious purposes. This statement is not only offensive, but lacks professional responsibility and is unsupported by any good faith basis. This was a

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disparaging and spurious comment in an ex-parte memorandum to the court. The government's
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statement also suggests by implication, that if the court grants the defense requests, it is somehow complicit in their motives. Nevertheless, it should be noted the government was never called upon to answer for, or explain these false assertions. Conversely, if the defense made these claims they would be queried by the court and directed to make some showing as to the basis for the comments. The defense points this out for the purpose of demonstrating the repeated pattern of disregard by the government for the integrity of this prosecution and the lack of fundamental fairness toward defendants who are presumed innocent. The Ninth Circuit addressed similar inappropriate ex-parte filings made by government attorneys in Guenther v. Commissioner of Internal Revenue, 939 F.2d 758 (9th Cir. 1991). Although Guenther was a tax court matter, it highlights the disfavor with which these tactics are

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viewed. The Ninth Circuit held the government's conduct violated the due process rights of the
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taxpayers. In Guenter, the government filed an ex parte memorandum (32 pages) setting forth
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the government's view of the case. The court found that some issues were simply procedural; however, other topics were "clearly substantive." The government accused the taxpayers of misconduct and suggested that they might present fabricated evidence and lie at trial, among other things. Id. at 760.

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The court held that this type of conduct is inappropriate to our system of adversarial justice and violative of due process; the court ordered a new trial. The sanction imposed in Guenther is inapplicable in this case; however, it demonstrates the need for judicial intervention as a means of deterring future improprieties on the part of the government.

IV.

Agency Reports The government continues to claim that "investigative agency reports, notes and logs

defendants seek are not discoverable under Rule 16 at any point." Govt's memorandum,10/19/05, p.7. It then argues the Jencks Act governs disclosure of the reports and those are only discoverable if their respective authors testify at trial. The government claims the notes and logs are never discoverable under any rule or statute. 10/19/05, p.7. The government repeatedly complains that it has produced a "large volume of material that it was not required to provide under Rule 16 or otherwise" to justify shifting the blame for its non-disclosure on to the defense and the court for its "faulty analysis" of discovery rules.1 Even more unsettling is the government's admission that despite this court's prior orders, the government's prior promises of prompt disclosure, the court's detailed analysis of the discovery rules and Jencks, it will disclose or has disclosed the requested material only "as an accommodation to defense counsel" or "for tactical purposes;" both are absurd reasons for disclosure. 10/19/05, p.7 and p.9.

3 The government recognizes the materiality of the non-disclosed items as it never disputed any facts cited by the defense in support of disclosure. Instead, it summarily concludes that the material is irrelevant to the government's case in chief are therefore irrelevant to the defense. This logic is faulty and contrary to law.

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Despite its special role in our justice system, the government absolutely refuses to acknowledge the law or more importantly, this Court's application of the law and subsequent orders. As stated in Campbell v. Rice, 408 F.3d 1166, 1174-1175 (9th Cir 2005):

[The prosecutor] had a duty to disclose to the trial judge during the inchambers hearing all the [facts that he knew concerning McCann. [FN2] The Supreme Court has emphasized "the special role played by the American prosecutor in the search for truth in criminal trials." Strickler v. Greene, 527 U.S. 263, 281, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999). "A prosecutor has the responsibility of a minister of justice and not simply that of an advocate. This responsibility carries with it specific obligations to see that the defendant is accorded procedural justice...." ABA Model Rules of Professional Conduct Rule 3.8 cmt. (2002); accord ABA Standards for Criminal Justice 3-1.1(b) (3d. 1993) ("The prosecutor is both an administrator of justice and an advocate. The prosecutor must exercise sound discretion in the performance of his or her functions."); id. at 3.1-1(c) ("The duty of the prosecutor is to seek justice, not merely to convict"); see also Hayes v. Brown, 399 F.3d 972 (9th Cir.2005) ("The prosecuting attorney['s] ... obligation is to govern impartially[,] to do justice[,] ... [and] ... to assure that the defendant has a fair and impartial trial") (quoting Commonwealth of The Northern Mariana Islands v. Mendiola, 976 F.2d 475, 486 (9th Cir.1992) (citations omitted), overruled on other grounds by George v. Camacho, 119 F.3d 1393 (9th Cir.1997) (en banc)). This prosecution is not a game; the government's treatment as such suggests a deliberate and calculating strategy to walk as close to the line of due process is possible without sanctions.

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Each and every defendant is entitled to due process and a fair trial and if the government refuses
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to acknowledge its own pretrial duties now, the consequences will be borne out at trial. It has
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been forewarned and any future non-disclosure of material that does not fall within this Court's
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specific rulings should not be overlooked by this court without severe sanctions. The government
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cannot escape its constitutional and statutory responsibilities in this prosecution any longer.
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The government claims that "Operation Dequiallo is an "unrelated" case and "there are no common defendants" as a reason for its non-disclosure. This is false and misleading and yet another excuse to delay all discovery related to the murderer turned ATF informant.

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As the defense has laid out in several motions, Michael Kramer is not only a admitted participant in the murder of Garcia, he is the source of the government's information in its prosecution of the HAMC as a criminal enterprise. His statements regarding the murder and other HAMC activities were recorded under the "Operation Dequaillo" investigation as well as the HAMC "Arizona" investigation. The defendants are Hells Angels. Kramer is not only a witness in Operation Dequiallo case, he is also a witness in the Nevada Laughlin charges as well as the charges arising out of the Phoenix investigation. The fact that the government may not choose to call many agents or witnesses at trial is irrelevant to the inquiry of materiality. Again the government cannot determine relevancy for the defendants. If in doubt as relevancy as to the relevancy concerning the defense, the government should disclose. It appears that the government still intends to withhold all recordings that are statements

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of Michael Kramer or others, under the guise of Jencks. The court has already informed the
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government of it strict interpretation of Jencks and obligations to produce any recordings unless
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a protective order is granted. If the government again declines to follow this court's prior
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rulings, the defense will be seeking disclosure and/or sanctions.
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VII.

Nevada (page 10-11) The government seems to assert that the Laughlin Shooting Incident is related and

relevant, as well as non-germane and immaterial. 4 The government applauds itself for turning over "scores" of videotapes from casino surveillance which were relevant and material to the
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preparation of the defense (pg.10, ln 19-23). However, in the following paragraph it laments the
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volume of non-germane material demanded by the defense and produced by the government.
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This seems to be the same material, i.e. the casino surveillance tapes.

See also its remarks at pages 2-4 of their ex parte memorandum in which they also seem to argue that this incident and investigation is largely irrelevant and immaterial.
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Clarification is needed for the government. The United States has charged Donald Smith in the District of Nevada with criminal conduct arising out of the Laughlin Shooting incident. (See Exhibit A Copy of the Superseding Indictment from the District of Nevada). The United States has indicted Donald Smith (and others) in the District of Arizona with RICO. One racketeering act alleged in support of RICO in Arizona is: "On or about April 27, 2002, in the District of Nevada, defendants Donald C. Smith, George E Walters, and Calvin B. Schaffer, intending or knowing that their conduct would cause death, intentionally acted in a course of conduct planned to culminate in the murder of members of the rival Mongols Motorcycle Club. Second Superseding Indictment, pg.6, pg 10. This is racketeering act 4. These two prosecutions

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arise from the exact same incident and investigation. The videotapes show what happened and
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what did not happen. The charging decisions by the Jekyll and Hyde U.S. Attorney's Office are of no moment to the request for the videotapes of the incident at issue. Interestingly, this appears to be the first time the government has argued that the Laughlin Shooting Incident materials are outside of Rule 16. On October 12 and 19, 2005 the government certified, both generally and specifically, as to Laughlin, that "the government has now provided all of that material, including the material not required under Rule 16." (Gov. Ex Parte Memo, p.11, ln.4). This statement is simply false. The videotapes taken by the casino surveillance cameras are critical to the defense preparation of this case. Yet, the government has failed to complete its Rule 16 obligation, its word and the Court's Orders. The government has not even attempted to provide replacement videotapes for the original 36-38 tapes provided in April 2004 which were edited and of insufficient quality for

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conversion to MPEG format. The government, at the time of both its written certification and
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oral certification, have made no attempt to provide the 51 tapes hidden by the United States
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Government for more than a year of this litigation ­ including tapes which run during the precise time of the shooting. Further, the government states that, apparently out of the goodness of their hearts, they boiled down nearly 500 surveillance tapes to 36, thereby providing a "consolidated but substantively complete format." The defense strongly disagrees with the government's judgment
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as to the "substantively" completeness of their selections. Beyond that, how can the government make such a certification when they have not even reviewed the 348 additional videotapes (or likely the outstanding 51tapes). 5 Absent a sanction imposed by the court, the government's belligerence will continue. In denying the defense's most recent motion to dismiss this predicate act (relating to the Laughlin incident), the court noted that the government would provide these tapes by August 12, 2005 which would provide plenty of time to review and prepare for trial. Yet, now it is November 4, 2005 and the tapes have not been provided. The court indicated that the government's failing had not been sufficiently flagrant to justify dismissal of the predicate act. However, the government's

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letter dated August 12, 2005 (provided to the court with doc.#837) sends the defendants to
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Nevada to get the 51 newly disclosed tapes. This despite the government's statement that it would obtain and produce the tapes and the court's Order (July 11, 2005 Order) to do so. Couple with these failures the government's new position staked out in its Ex Parte Memorandum wherein in it now justifies its behavior by suggesting that the information is largely beyond the scope of Rule 16. The government has acted with flagrant disregard for the court's Orders, their commitments and Rule 16. The predicate act should be dismissed.

VIII.

The "Unrelated" Scottsdale and California Cases The government continues to claim that the Pancrazi matter is unrelated and not relevant

to the instant case. Counsel for the defense explained in detail examples of how the Pancrazi case involved the same agents, same CIs and same defendant/suspects and crossed over on
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numerous dates and occasions into the instant investigation. In fact, the defense is aware of an
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interview in which agent Slatella described himself as a co-case agent as early as December 20,
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As the court will recall, on October 21, 2005 at the 11th case management conference they claimed that the defendants had not returned the 348 videotapes. Counsel for the defendants advised the court that Mr. Duax was sent a letter dated July 25, 2005 advising him that they tapes were available at Apex for their retrieval, however, as of the afternoon of October 21, the government had failed to do so.
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2001. This would seem to include the Pancrazi investigation. This directly contradicts the government's claim on August 25, 005 that agent Slatella was not a case agent in Pancrazi investigation. In Pancrazi the government targeted and believed the HAMC was controlling the methamphetamine operation in Arizona. Many of the same people involved in that investigation are now defendants in this case. It should be noted that the defense request for an evidentiary hearing on this issue was never withdrawn. It is respectfully suggested that the issue has not been resolved and can only be properly addressed at a full and open hearing where those involved can be subjected to inquiry under oath. Otherwise, the government will continue to obfuscate and prevaricate during

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pretrial conferences to so they will not have to provide materials until well into the trial.
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It should be abundantly clear after almost two years that the government either does not understand its obligation or is purposely engaging in gamesmanship at the expense of defendant's right to a fair trial.

CONCLUSION The certifications of the government, whether written or given orally, are worthless. The Government's memorandum in support of its certification is fraught with the same misstatements of law and fact as enumerated in the Court's Order of September 14, 2005. RESPECTFULLY SUBMITTED this 4th day November, 2005.

Brian F. Russo Attorney for Defendant

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COPY of the foregoing electronically mailed This 4th day November, 2005, to: Tim Duax & Keith Vercauteren Asst. US Attorneys 40 W. Central Ave., Ste. 1200 Phoenix, AZ 85003 All Defense Counsel /s/

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