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

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Dkt. 1374 at 2. In his renewed motion, Defendant Johnston argues that "[w]ithout the ability to make that determination for himself, he is forced to rely on those who determine his fate without knowing the information upon which they base their decision or the opportunity to address
Document 1394 Filed 09/13/2006 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

United States of America, Plaintiff, vs. Robert J. Johnston, et al., Defendants.

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CR 03-1167-PHX-DGC ORDER

Defendant Robert Johnston has filed a Renewed Motion to Compel. Dkt. #1381. The Government has filed a response and Defendant Johnston has filed a reply. Dkt. ##1388, 1393. Defendant previously filed a motion asking the Court to compel production of documents withheld under earlier protective orders. Dkt. #1356. The Court denied that motion in an order dated June 26, 2006, which included the following statement: The Court, however, will not consider any information contained in the protected materials for sentencing purposes. Nor will the Court rely on or be influenced by any information contained in the Government's memoranda in support of the protective orders.

Case 2:03-cr-01167-DGC

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it." Dkt. 1381 at 7. This statement is not accurate. Defendant Johnston will know all of the information upon which the Court bases its decision. As previously stated, the Court will not rely on or be influenced by any information withheld from Defendants under the Court's protective orders. In his reply memorandum, Defendant Johnston asserts that "[t]he Court cannot simply ignore something it has previously reviewed and is now being asked to consider in Mr. Johnston's sentencing." Dkt. #1393 at 3. This statement also is inaccurate. The Court is fully capable of not considering information previously reviewed. In fact, the Court does so on a daily basis when it makes evidentiary rulings and excludes information from its consideration. Moreover, although the presentence report includes a description of the racketeering allegations contained in the now-dismissed indictment against Defendant Johnston, the writer of the report has not had access to information withheld under the Court's protective orders, does not make reference to such information, and does not suggest that the Court rely on such information. The Court will sentence Mr. Johnston on the offense to which he pled guilty, contained in the information recently filed against him. The Court will not sentence Mr. Johnston on the now-dismissed racketeering allegations in this case. Nor will the Court consider information withheld from Defendants under the protective order. Given these circumstances, the Court's decision regarding disclosure of the withheld materials remains unchanged. Defendant's renewed motion to compel will be denied. IT IS ORDERED that Defendant Johnston's Renewed Motion to Compel Production of Materials Subject to Protective Order Based on Changed Circumstances and New Information (Dkt. #1381) is denied. DATED this 13th day of September, 2006.

Case 2:03-cr-01167-DGC

Document 1394

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Filed 09/13/2006

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