Free Order on Motion to Unseal Document - District Court of Arizona - Arizona

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

United States of America, Plaintiff, vs. Robert J. Johnston (1), et al.,

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CR-03-1167-PHX-DGC ORDER

Defendant Robert Johnston has filed a motion to unseal materials subject to protective orders. Doc. #1356. The Government has filed a response and Defendant has filed a reply. Docs. ##1366, 1369. For the reasons set forth below, the Court will deny the motion. The indictments in this case charged Defendant with racketeering violations and racketeering conspiracy. Docs. ##1, 384, 541. On February 16, 2006, Defendant plead guilty to an information alleging misprision of a felony. Docs. ##1264-65. The racketeering charges against Defendant were dismissed. Doc. #1265. Defendant is due to be sentenced on the misprision charge on August 21, 2006. Doc. #1362. Defendant moves the Court to unseal materials subject to the Court's protective orders issued pursuant to Federal Rule of Criminal Procedure 16(d)(1). Doc. #1356 at 1; see Docs. ##844, 1012, 1078, 1280. Defendant claims that information contained in the protected materials caused the Court sua sponte to consider an anonymous jury and that if the Court
Document 1374 Filed 06/26/2006 Page 1 of 2

Case 2:03-cr-01167-DGC

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uses the same information in making its sentencing decision, due process requires that Defendant be afforded the opportunity to use the information as well. Doc. #1356 at 5 (citing Brady v. Maryland, 373 U.S. 83, 87 (1963) (holding that the Government is obligated to disclose evidence that is material either to guilt or punishment)). 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. IT IS ORDERED that Defendant Robert Johnston's motion to unseal materials subject to protective order (Doc. #1356) is denied. DATED this 26th day of June, 2006.

Case 2:03-cr-01167-DGC

Document 1374- 2 -Filed 06/26/2006

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