Free Reply to Response - District Court of Arizona - Arizona

1 Brian F. Russo (018594) A
lll West Monroe Street
2 Suite 1212
Phoenix, AZ 85003 i
2 Telephone: 602-340-1133
Facsimile: 602—2”58—9l79
1 E-Mail: bfmsso(qDatt.ng_t
5 Attorney for Defendant Johnston
6 IN THE UNITED STATES DISTRICT COURT 5
7 DISTRICT OF ARIZONA i
8
9 STATE OF ARIZONA, Case No. CR 03-1167-PHX-DGC 1
Plaintiff, DEFENDANT’S REPLY
10 RE: RENEWED MOTION TO
A vs. COMPEL PRODUCTION OF g
11 MATERIALS SUBJECT TO 3
ROBERT J. JOHNSTON, JR. (1), PROTECTIVE ORDER BASED ON
12 CHANGED CIRCUMSTANCES
13 Defendant. AND NEW INFORMATION —
14 1
is °"
16 COMES NOW the defendant, ROBERT J. JOHNSTON, JR. by and through E
11 counsel, Brian F. Russo, and hereby submits this Reply to the govemment’s 1
18 Response to his Motion. E
19 The government claims that "defendant’s circumstances have not changed"
20 because they have been alleging the information contained in the presentence {
21 report since the beginning of the case. However, as noted by the government, Mr.
22 Johnston did not plead to any of the information contained in the indictment. In
23 fact, they dismissed the indictment completely and he pled to a complaint for a 1
21 Misprision of a Felony. Mr. Johnston neither pled to nor agreed with any factual
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1 basis that included the infomation the court is asked to consider in the presentence 1
2 report.
3 The changed circumstances are that the plea did not include RICO; the PSIR
4 does and asks the Court to consider such evidence. Thus, the protected status of i
5
6 this exculpatory material should not last in perpetuity. Pennsylvania v. Ritchie, 480 Q

7 U.S. 39 (1987) (Duty to disclose is ongoing and information that may be deemed Q
8 immaterial upon original examination may become important as the proceedings
9 progress, and the court would be obligated to release information material to Q
ic
ll faimess).
3
12 Allegations in an indictment are not evidence and were not admitted to by {
13 Mr. Johnston in his plea colloquy. Nevertheless, an arm of the Court, namely 2
14 Probation, is informing the Court that it should consider racketeering and i
15 organization/enterprise in relation to Mr. J ohnston’s sentencing. So, although the
16 information may not be new, as the government suggests, the inclusion in the PSIR {
17 and the recommendation that it be considered in a sentencing for a Misprision of a 3
18 Felony is.
19 The government fails to understand that it already admitted that the materials
20 are exculpatory, in pleadings to the Court and in a letter to all defendants. The I
2 1 government also fails to understand that impeachment material is exculpatory
22 within the meaning of Brady. Giglio v. United States, 405 U.S. 150; 92 S. Ct. 763
23 (1972). i
24 It is extremely simple to understand why defendant wants this material; it
25 affects the government’s theory on racketeering concerning the HAMC and the
Court is being asked to consider it with regard to Mr. Johnston’s sentencing.
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1 United States v. Blanco, 392 F.3d 382, 396 (9th Cir. 2004) (The govemment has a K
2 duty to turn over to the defense in discovery all material infomation casting a T
3 shadow on a government witness's credibility). This is exactly what the
4 govemment ahs claimed the protected material does.
5 The government claims that because the Court, prior to the PSIR being
6
drafted, claimed it would not consider the protected material, the defendant is not
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8 entitled to it. This misses the point for several reasons. Primarily, an arm of the [
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9 Court, the Probation Department, is asking the Court to consider it in sentencing. l
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10 This is a new circumstance that the Court is obligated to consider in the context of g
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faimess. The Court cannot simply ignore something it has previously reviewed and {
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13 is now being asked to consider in Mr. Johnston’s sentencing.
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14 The defendant is also entitled to address these concerns because not only i
15 might it affect his sentencing range; length of probation or supervised release, but
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also his classification for BOP.
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18 Finally, the Court, if so inclined to order disclosure could limit l

19 dissemination or place restrictions on its use. Nevertheless, there are less
20 . . . . . 2
restrictive means than non-disclosure to insure that defendant receives an l
2 1 »
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22 opportunity to have a fair sentencing hearing.
2 3 WHEREFORE, for the foregoing reasons, defendant respectfully requests I
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24 that this Court enter an Order compelling the government to produce the requested
25 _
materials. l

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1 RESPECTFULLY SUBMITTED this lst day of September, 2006 i
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6 /s/Brian F. Russo Z
Brian F. Russo s
7 Attorney for Defendant l
8 i
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10 _
COPY of the forepoini
ii electronically mai ed t is g
lst day of September, 2006, to:
12 Q
is Tim Duax l
Asst. U.S. Attomey’s Office g
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All Defense Counsel {
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By=_._.._........ l
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