Free Response to Motion - District Court of Arizona - Arizona

1 PAUL K. CHARLTON
United States Attorney
2 District of Arizona
TIMOTHY T. DUAX
3 Assistant U.S. Attorney
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4 40 North Central Agenue, Suite 1200
Phoenix, Arizona 85004
5 Telephone (603 514-7500
Timothy.Duax usdo].gov
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7 UNITED STATES DISTRICT COURT
8 DISTRICT OE ARIZONA
9 United States of America, No. CR-03-1167-PHX-DGC
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11 v. GOVERNMENT’S RESPONSE TO
DEFENDANT’S REN EWED MOTION
12 Robert]. Johnston Jr., TO UNSEAL MATERIALS SUBJECT
TO PROTECTIVE ORDER BASED
13 Defendant. ON CHANGED CIRCUMSTANCES
AND NEW INFORMATION
14
15 The United States of America, by and through counsel undersigned, hereby responds to
16 defendant Johnston’s response to defendant’s Renewed Motion to Unseal Materials Subject
17 to Protective Order Based On Changed Circumstances and New Information. The position of
18 the United States, is set forth in the attached Memorandum of Points and Authorities.
19 Respectfully submitted this .:26/Qday of August, 2006.
20
21
PAUL K. CHARLTON
22 United States Attorney
District of rizona
23 2/.-LW»
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2 TI UAX
25 Assistant U.S. Attorney
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27
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1 MEMORANDUM OF POINTS AND AUTHORITIES
2 I. The defendant’s circumstances have not changed since the original Motion to
3 Compel Production.
4 Despite defendant’s claim of changed circumstances, defendant stands in the same
5 position now than he did when the original Motion to Compel Production was filed.
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7 2006, the defendant entered a plea of guilty to an information alleging Misprision of the
8 Felony of Possession With the Intent to Distribute Methamphetamine. The factual basis for
9 the guilty plea was that on February, 2003, a member of the Hells Angels Motorcycle Club
A 10 sold 1/16efa1rouneeeofmethamphetamineJeoanundereovereagen&eetht1seeo1rrmittingethe
11 felony of Possession With the Intent to Distribute Methamphetamine. The transaction
12 occurred in the clubhouse of the Hells Angels Motorcycle Club, Mesa Chapter. Defendant
13 Johnson had knowledge of the commission of the offense, did conceal the same, and did
14 not report the commission of the felony to authorities. Nothing has changed with respect to
15 the plea.
16 II. The information contained in the presentence report is not new to this Court.
17 The defendant makes reference to information contained in the presentence report,
18 general information regarding the Hell’s Angels Motorcycle Club (HAMC), its
19 membership, organization, and the defendant’s role in the HAMC. Defendant tries to cast
20 this information as "new", but all of the information cited in the defendant’s motion has
21 been presented to this Court during the course of litigation. Consequently, the information
22 is not "new".
23 III. The material at issue is not Brady material.
24 The defendant claims the materials sought are "material Brady information", and cites
25 Brady v. Maryland, 373 U.S. 83, 87 (1963), as authority. Defendant is incorrect, as the
26 information sought does not tend to exculpate the defendant from the offense to which he
27 has plead guilty, nor does the information tend to reduce the penalty defendant potentially
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ase 2:O3—cr—O1167-DGC Document 1388 Filed O8/25/2006 Page 2 of 4

1 faces. Consequently, the materials need not be disclosed.
2 Although the defendant alleges that the United States has admitted the materials are
3 exculpatory, the opposite is clearly true. In its first response to the defendant’s original
4 motion, the United States clearly stated that it did not believe the material to be Brady
5 material. That position has not changed.
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7 The materials requested by the defendant will not be considered by this Court for
8 purposes of sentencing. On June 26, 2006, this Court issued its order denying defendant’s
9 original Motion to Compel Production. In the order, the Court stated that the RICO charges
eeee ee eeee againstdefendanehadbeerrdismisseekeandetlratitewouldenoteonsidereeitheretlrematerials in
11 question or the government’s pleadings in support of the protective order.
12 V. Conclusion
13 The defendant, possessed of neither changed circumstances, nor new infomation asks
14 this Court to reverse its order of June 26, 2006. He does so, ostensibly because the
15 presentence report contains infomation, already known to this Court, regarding the
16 background and nature of the dismissed RICO counts previously pending against the
17 defendant. Why disclosure of this already known infomation, in the context of a
18 presentence report, requires disclosure of infomation the Court does not intend to consider
19 is difficult to fathom. Defendant couches his request in Brady, but the material is not
20 Brady. Although the presentence report does contain a great deal of background
21 infomation regarding the HAMC and its membership, the sentencing recommendation is
22 unaffected by any of the organizational infomation. The base offense level was calculated
23 for the offense of Misprision of a Felony and the underlying felony was Possession With
24 the Intent to Distribute Methamphetamine. Therefore, the defendant’s guidelines were
25 unaffected by any consideration of his relationship with the HAMC. As a result, there is no
26 need for this Court to reverse its prior order.
27 Wherefore, based upon the foregoing, the United States respectfully requests this
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1 Court to deny the defendants’ motion in its entirety.
JK
2 Respectfully submitted this gf day of August, 2005.
3 PAUL K. CHARLTON
United States Attorney
4 District of Arizona
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13 CERTIFICATE OF SERVICE
I herebg certify that on August 25, 2006, I electronically transmitted the attached
14 document t0 t e Cler 's Office using the CM/ECF Slystem for filing and transmittal of a
15 Notice of Electronic Filing to the fo lowing CM/EC registrant:
Brian F. Russo
16 111 West Monroe Street
Suite 1212
17 Phoenix, Arizona 85003
[email protected]
18
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20 s/Carol Strachan
Carol Strachan
21 Legal Assistant
U. . Attomey’s Office
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Case 2:03-cr-01167-DGC

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