Free Motion to Extend Time - 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 Attorney for Defendant Robert Johnston

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IN THE UNITED STATES DISTICT COURT DISTRICT OF ARIOZNA

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

) Case No. CR03-1167-PHX-DGC ) ) MOTION TO EXTEND TIME FOR ) FILING DEFENDANTS' MOTIONS ) ) ) ) ) )

It is expected that excludable delay under Title 18 U.S.C. § 3161(h)(1)(F) may occur as a result of this Motion or orders based thereon. COMES NOW the defendant ROBERT J. JOHNSTON, by and through counsel, Brian F. Russo, (and on behalf of all other defendants) and hereby moves this honorable court for an order extending the deadline within which the defendants must file their Motions. The defendant requests that the substantive motions currently due on September 2, 2005 be extended and a new date be determined only after the court is more fully advised on the record as to the reasons set forth below for the need to extend time. As referenced in previous pleadings to the court, counsel discovered a Title III investigation related to this case. The government initially claimed that the material was not relevant and there were no wiretaps in this case. Counsel for Mr. Johnsotn and AUSA Tim Duax

Case 2:03-cr-01167-DGC

Document 774

Filed 08/10/2005

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had subsequent conversations wherein AUSA Duax agreed to review the materials and make a determination concerning the discoverability of the material form this investigation. On August 9, 2005 AUSA Tim Duax contacted counsel for Mr. Johnston and indicated that he had reviewed the materials from that case and determined that they should be disclosed to defense counsel in the instant case. AUSA Duax concedes that there are contents and communications from that case that are relevant to the instant case. A rough estimate of the amount of materials is approximately 4,000 pages of ROIS, reports, returns, affidavits and applications; 200 cassette tapes and 10-15 CDs from telephone intercepts, and video and audio surveillance. In addition, the evidence from that case involves dates, times, places, persons and incidents that are the same as those from the case before this court. Some of the predicate acts listed in the instant indictment are covered in surveillance from the wiretap investigation. In essence, the two cases arise from a joint investigation of the HAMC and associates with crossover communications and investigations concerning drug activity. Counsel for the defense anticipates and asserts, upon information and belief, that the materials contained in the wiretap investigation not only assist in the preparation of substantive motions, but will assist the defense in investigating their case and will lead to other discoverable material. Also, the disclosure will give rise to additional substantive motions related to the materiality of the wiretap investigation. However, given the amount of the materials and the timing of their disclosure in relation to the court's deadline for substantive motions, an extension is imperative. The extension of time requested herein is based on truly extraordinary circumstances and is necessary to the effective review and preparation of materials that previously had not been disclosed, and by all accounts were never intended to be disclosed. This has caused a dramatic change in the way the defense must prepare and proceed. Therefore, the deadline of September

Case 2:03-cr-01167-DGC

Document 774

Filed 08/10/2005

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2, 2005 should be vacated and a new deadline determined after a status conference on the matter is held. Assistant United States Attorney Timothy Duax does not oppose defendant's Motion.

RESPECTFULLY SUBMITTED this 10th day of August, 2005.

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

Case 2:03-cr-01167-DGC

Document 774

Filed 08/10/2005

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ORIGINAL of the foregoing Defendant's Motion to Extend Time to File Electronically filed this 10th day August, 2005 to: Clerk of the Court United States District Court District of Arizona 401 W. Washington St. Phoenix, AZ 85003 The Honorable David G. Campbell Judge of the U.S. District Court 401 W. Washington St. Phoenix, AZ 85003 and copies of the same electronically mailed to: Keith Vercauteren and Timothy Duax U.S. Attorney's Office Two Renaissance Square 40 N. Central Ave., Ste. 1200 Phoenix, AZ 85004 and copies of the same were electronically mailed to: All Counsel for Defendants By: /s/ Jacqui Whitten

Case 2:03-cr-01167-DGC

Document 774

Filed 08/10/2005

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