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

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Brian F. Russo (018594) 111 West Monroe Street Suite 1212 Phoenix, AZ 85003 Telephone: 602-340-1133 Facsimile: 602-258-9179 E-Mail: [email protected] Attorney for Defendant Johnston IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA STATE OF ARIZONA, Plaintiff, vs. ROBERT J. JOHNSTON, JR. (1), Defendant. ) ) ) ) ) ) ) ) ) ) Case No. CR 03-1167-PHX-DGC RENEWED MOTION TO COMPEL PRODUCTION OF MATERIALS SUBJECT TO PROTECTIVE ORDER BASED ON CHANGED CIRCUMSTANCES AND NEW INFORMATION

COMES NOW the defendant, ROBERT J. JOHNSTON, JR. by and through counsel, Brian F. Russo, and pursuant to the due process clauses of the Fifth and Fourteenth Amendments to the United States Constitution, hereby moves this Honorable Court for an order to compelling the production of the materials subject to the Court's because such materials contain Brady information that are fundamental to defendant's ability to effectively prepare for and present a sentencing hearing. More specifically, this Motion is being re-urged because the Pre Sentence Report (hereinafter "PSR") has suggested, in detail, that the Court consider RICO and that the defendant was a member of an organization/enterprise known as the Hells Angels.

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The Court and the Government have stated that the protected materials are relevant to the Racketeering case. The government has filed pleadings characterizing the materials as Brady/Giglio. Thus, the continued suppression of evidence favorable to Mr. Johnston violates his due process rights because the evidence is indisputably material to his punishment. This Motion is supported by the Memorandum of Points and Authorities attached hereto. DATED this 11th day of August, 2006. /s/Brian F. Russo Brian F. Russo Attorney for Defendant

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MEMORANDUM OF POINTS AND AUTHORITIES I. FACTS Mr. Johnston respectfully incorporates all previous pleadings, and the facts, exhibits and arguments set forth therein, concerning his request for the production of the protected materials, into this Motion. Mr. Johnston received the PSR, prepared by the United States Probation Office on August 7, 2006. The PSR discusses, in extraordinary detail, the charges contained in all three indictments against Mr. Johnston and other members of the Hells Angels. The PSR explains that Mr. Johnston was a member of the HAMC whose purpose as an organization was to engage in acts of racketeering and to further and promote the purpose of the organization/enterprise through a pattern of acts of racketeering. More specifically, the PSR discusses the Hells Angels as a RCIO enterprise for the first 21 paragraphs. In fact, paragraphs 1 through 21 discuss nothing but HAMC and racketeering offense conduct. Paragraph 8 under "Offense Conduct" advises the Court to consider: The Hells Angels Motorcycle Club (HAMC) is an international organization whose members and associates engage in acts of violence, including murder, attempted murder, conspiracy to murder, witness tampering, and distribution of controlled substances . . . The members and associates function as an organization and all activities are engaged in for the purpose of achieving the objectives of the organization. United States Probation, Presentence Investigation Report, p. 5, ¶ 8. Paragraph 13 of the report states that "[a]s an organization, the HAMC

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members and associates distributed methamphetamine and marijuana." PSR p.6, ¶ 13. Paragraph 15 discusses the incident at Harrah's Casino in Laughlin and

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advises the Court to consider that members of HAMC "conspired to murder members of the Mongols Motorcycle Club." PSR p.6, ¶ 15.

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Paragraph 20 begins the discussion on individual defendants listed in the indictment and their alleged specific participation in the enterprise/organization. The PSR advises the Court to consider: Johnston "was identified as the president of the Mesa, Arizona Chapter. Johnston had to approve all activities of those in his chapter, as well as activities of any prospect. He introduced Murphy to individuals who wanted to purchase methamphetamine. He threatened a confidential informant (CI) by telling him to "keep his mouth shut" and pointing out to agents it would be "very easy to have (the CI) shanked." Throughout the investigation, despite the fact he is a convicted felon, Johnston was observed in possession of firearms. Additionally, he was observed using methamphetamine and smoking marijuana. PSR p.9, ¶ 20.

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In addition, paragraph 20 advises the Court that Mr. Johnston exercised control over members and told them who could wear their colors and where. That paragraph also advises the Court about Mr. Johnston's interactions with the SAMC (Undercover Agents and CI) on behalf of the Hells Angels. Id.

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Paragraph 79 under "Impact of Plea Agreement" advises the Court to consider that if the defendant had been convicted of all the Racketeering Counts with which he was charged, and other relevant conduct concerning racketeering acts, he would have faced a guideline range of 97-121 months in prison. PSR p.20, ¶ 79. Finally, paragraph 81 advises the Court to consider Dismissed and

Uncharged Conduct. Again, in that section the Court is asked to consider Mr.

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Johnston's participation in the organization/enterprise and its racketeering activity. PSR p.20, ¶ 81. The above examples of relevant offense conduct relating to RICO that are discussed in the PSR are only a small portion of what the Court is asked to consider by the Presentence writer. The PSR is replete with language advising the Court to consider racketeering offense conduct contained in the allegations that were dismissed. The government possesses materials that are admittedly exculpatory to the racketeering claims and the alleged offense conduct related to Mr. Johnston. As a result of the PSR advising the Court to consider racketeering as relevant offense conduct in Mr. Johnston's sentencing, he is entitled to review the exculpatory materials now protected by the Court to make his own determination as to whether the material is useful. It can no longer be seriously argued that the protected materials are not relevant and necessary to Mr. Johnston's sentencing and hat he is not entitled to them.

II. LEGAL ARGUMENT It should be pointed out, highlighted and emphasized that Brady v. Maryland, 373 U.S. 83, 87 (1963) was a sentencing case. Put another way, the

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holding in Brady related to a document that concerned sentencing, not guilt; this is similar to the case at bar. The Supreme Court in Brady held that principles of due process require the government to produce evidence favorable to an accused that is "material either to guilt or punishment." Brady v. Maryland, 373 U.S. 83, 87

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(1963). Evidence, whether documentary or testimonial, is material if it would tend to exculpate a defendant or reduce the penalty he potentially faces. Brady Id.

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at 88 (emphasis added). It is not for the Court or the government to determine how a defendant will utilize the exculpatory material in his mitigation. Rather, in order to insure due process rights "Defendants have a right to analyze and prepare for facially

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damning evidence. Although safety and burden considerations, at times, justify the withholding of discovery information, there is entirely too much "hide-the-ball" in criminal discovery with respect to easily producible documents." (Emphasis added). United States v. Liquid Sugars, Inc., 158 F.R.D. 466, 471 n.4 (E.D. Cal

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1994). If there is question as to whether the materials not produced by the government may assist the defendant in any way and should be produced, doubt should be resolved in favor of the defendant and production should be made. In United States v. Blanco, 392 F.3d 382, 396 (9th Cir. 2004) the Court held that the government has a duty to "turn over to the defense in discovery all material information casting a shadow on a government witness's credibility."

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The protected status of exculpatory material should not last in perpetuity. In Pennsylvania v. Ritchie, 480 U.S. 39 (1987) the court held that the Brady duty to disclose is ongoing and "information that may be deemed immaterial upon

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original examination may become important as the proceedings progress, and the court would be obligated to release information material to the fairness of

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trial." Id. (emphasis added). In this case, the evidence sought by the defendant is material and exculpatory. Its material value has now become more important in light of the PSR's recommendation that racketeering be considered by the Court in sentencing.

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Brady v. Maryland, 373 U.S. 83, 87 (1963). The Court and the government must surely concede that the fundamental question here is whether or not the proceeding might be affected by Mr. Johnston's inability to review the suppressed evidence. Without the ability to make that determination for himself he is forced to rely on

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those who determine his fate without knowing the information upon which they base their decision or the opportunity to address it. By any standard, this would not be a fair and impartial sentencing hearing.

III. CONCLUSION WHEREFORE, for the foregoing reasons, defendant respectfully requests that this Court enter an Order compelling the government to produce the requested

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materials.

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RESPECTFULLY SUBMITTED this 11th day of August, 2006.

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

COPY of the foregoing electronically mailed this 11th day of August, 2006, to: Tim Duax Asst. U.S. Attorney's Office All Defense Counsel By:

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